California Supreme Court Allows Search of Cell Phones without a Warrant

As the Slashdot summary of this SFGate story makes clear, there are some big caveats on this ruling from the California Supreme Court. Warrantless searches of cell phones are only allowed after a defendant is arrested and taken into custody. The inclusion of cell phones is part of a larger rule allowing police to seize and search any personal effects.

The dissenting judges saw the massive amount of information potentially squirreled away in a modern cell phone as worthy of an additional barrier. This is consistent with rulings from other courts, including mostly notably the Ohio Supreme Court in a case from as recent as December of 2009.

In trying to reason through how a cell phone differs from other personal effects that would seem more reasonable for law enforcers to examine, I have to wonder what about a thumb drive? A personal media player? Laptops traditionally have posed more of a challenge, usual because of the addition of a password or even encryption. What about the pin codes and passwords offered by many smart phones? Would these raise the bar enough to make the California judges, or even the Supreme Court, see more of a bright line? I think there is more to consider here than just data capacity but am not clear in my own mind what would rise to the level of a domain outside of immediate and personal effects to something more like what the SCA and other laws cover in terms of stored data. (I realize the Stored Communications Act is a flawed analogy but the rulings protecting cell phones clearly beg some more definitional work.)

I haven’t seen much in the way of crypto for cell phones, beyond password safes. I wonder if rulings like these might encourage the development of encrypted alternatives to the built-in address book and other apps.

Police Can Search Cell Phones Without Warrants, Slashdot

feeds | grep links > 4th Amendement Protects Cell Tower Data, Possibly Ubuntu Move Away from X11, WikiLeaks Splitters to Setup New Site, and More

  • Cell tower data protected by the 4th Amendment
    As The Register explains, the ruling is in a district court in Texas, so just an incremental part of the evolving case law. The reasoning, at least as revealed by the article, seems arbitrary. I would have expected more thought along the lines of what is accessible by the average citizen rather than comparisons to continuously recorded reality television.
  • Canonical’s Shuttleworth contemplates a future Ubuntu without X11
    Ryan Paul at Ars Technica does a nice job of laying out both the motivation and challenges inherent in any Linux distribution moving from the ancient graphic display system, X11, to anything more modern. Undoubtedly a newer stack, like Wayland, would allow the Linux desktop to compete more effectively with other OSes but video driver support has been one of the platform’s greatest long running problems, one that a drastic change would multiply considerably. There may be a way, as Paul lays out in the article, to take a hybrid approach, which has worked for other software shifts of this scale.
  • WikiLeaks defectors to set up another leaks site
    Give the psychodrama around WikiLeaks, the news as reported by Jacqui Cheung at Ars Technica is hardly surprising. Let’s not forgot the work of John Young and Cryptome, though, when we talk about WikiLeaks and this new effort. Assange’s brain child is hardly the only or necessarily the first of its kind. It just happens to be the highest profile at the moment. Giving whistle blowers more options and opponents a more diffuse front should be all to the good, regardless of the reasons for the split.
  • Did the W3C sell out to Microsoft?, Tom’s Hardware, via Groklaw
  • UK copyright law to be reviewed, BBC, via Groklaw
  • EU Commission also wants to reform copyright, Open Rights Group

feeds | grep links > Microsoft Grants License to NGOs, Dell Releases Streak Sources, Register of Copyrights to Retire, And More

Following Up for the Week Ending 9/12/2010

feeds | grep links > D in Gnu’s Debugger, Police Raids Hit Wikileaks and Pirate Bay, Hope and Hype in Quantum Computing, and More

I am back from Dragon*Con but thoroughly wiped out. It looks like I will return to my usual blogging routine tomorrow. For now, here are some more links.

feeds | grep links > PHP on Android, Shoring Up 4th Amendment Protection of Email, and More

Supreme Court Rules on Case About Searching Employee Text Messages

I touched on the Quon case very briefly in the past. Despite the received wisdom that employers are within their rights to access resources they provide to employees, there was still some strong speculation this case, on being heard by the Supreme Court, might yield some changes, good or bad, on certain 4th Amendment questions.

EFF has an optimistic analysis of the ruling just handed down. As Kevin Bankston explains, the danger in this case would be that a ruling be too rashly made that would inadvertently weaken 4th Amendment protections. The court instead stuck to the question of whether the employer, the City of Ontarion, was within its rights, which they answered in the affirmative. They carefully avoid the question of the 3rd party storage and service involved. Had they touched on that aspect, it could have much broader ramifications so I can see why EFF thinks this is a good, considered ruling.

From the decision:

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928) [finding that warrantless telephone wiretapping did not violate Fourth Amendment], overruled by Katz v. United States, 389 U. S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360–361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Frustrating to some hoping for some motion to bring case law up to date with the current state of technology, I have to side with Bankston and EFF on this, that the precautionary principle is a wise course when there are so may potential counter intuitions and latent ambiguities exposed by the rapid pace of change.

4th Amendment Issues Online, Peter Watts Won’t Go to Jail and Senators Chastize Facebook on Privacy Changes

  • Survey of 4th amendment issues online
    A lot of the stories upon which David A. Couillard touches in this Ars Technica piece are ones I’ve been following for a while. This is a nice way to catch up and to know what to look for moving forward. There are also some valuable definitions of terms along the way.
  • Peter Watts won’t go to jail
    Cory has the explanation at Boing Boing. It’s not clear why the judge ultimately suspended Watts’ sentence, though it is good news for him, his family and friends. It would be better news had the judge issued a stronger statement, even an indictment, of those I believe mistreated him so badly.
  • Senators directly urge Facebook to make changes on privacy
    Cecilia Kang has the story at the Washington Post. One of the four senators signing onto the letter, Schumer, is also urging the FTC to policing some privacy aspects, specifically personal info disclosures, of social networking and messaging services. The letter seems to hit the most concerning aspects of Facebook’s recent changes.

Government Pushing for Location Tracking without Warrants

Jim Harper of the Technology Liberation Front has an excellent explanation of the issues at stake with this court case.

The government can maintain this position because of the retrograde “third party doctrine.” That doctrine arose from a pair of cases in the early 1970s in which the Supreme Court found no Fourth Amendment problems when the government required service providers to maintain records about their customers, and later required those service providers to hand the records over to the government.

Jim puts his finger on why this critical, that it could extend the reach of surveillance into any number of network based services without any sort of oversight or 4th Amendment considerations. I would welcome any input from my lawyer friends as to whether the 3rd Circuit has traditionally ruled predominantly one way or another in cases like this one.