Feds argue for warrantless phone search to avoid suspects kill-switching evidence

Filed Under: Data loss, Featured, Law & order, Mobile, Privacy

Criminal. Image courtesy of Shutterstock.We carry wallets, purses, address books, and briefcases. If police in the US arrest us, they've long had the authority to search this type of wearable, portable stuff.

So why should mobile phones be given special protection from warrantless search?

They shouldn't, the US Department of Justice (DOJ) said in a brief filed with the Supreme Court on Tuesday in which it argued for warrantless phone searches.

In fact, the DOJ maintains, a phone is like any object or package that a police officer can seize because it could be a weapon or destructible evidence, whether it's a crumpled cigarette wrapper (could conceal a razor blade) or "fruits or evidences of crime."

This is the side of US law enforcement that wants to conduct warrantless searches and wants to do it fast, before arrested people have a chance to wipe their phones or brick them entirely using a kill switch.

The other side of law enforcement has, of course, been demanding kill-switch technology as a way to discourage mobile phone theft.

The law-enforcement coalition Secure Our Smartphones (SOS) calls such robberies a growing epidemic.

New York City, for example, saw a 40 percent year-over-year increase in smart phone robberies from 2012 to 2013.

The coalition's state attorneys general, district attorneys, major city police chiefs, state and city comptrollers, as well as public safety activists and consumer advocates, all think that bricking a phone will make it less of a lure.

In what civil liberties groups call a paradox, the DOJ in this case doesn't care so much about thwarting robberies.

As far as this case is concerned, the Feds are far more concerned about not being able to get at evidence that's easy pickings when police don't have to fuss with getting warrants.

This is how DOJ attorney Donald B. Verrilli, Jr. described the situation in the brief:

If an officer does not search an unlocked cell phone as soon as she finds it, a significant risk exists that the police will never be able to recover evidence contained on the phone.

The case concerns alleged drug dealer Brima Wurie, whom police arrested in 2007 after what they allege was a crack-cocaine deal that took place in the parking lot of a convenience store in South Boston.

Police took two mobile phones from Wurie. One of them was receiving incoming calls while the police had it, so the officers opened it up to check out his call log.

Then, they looked up the caller ID to find out what phone number was associated with it.

The officers plugged the phone number into an online white pages directory, found the address to which it corresponded, went to the house, "froze" it until they could get a search warrant, and then, after getting a warrant, found guns and crack cocaine.

The US Court of Appeals found that the phone search was out of line with the Fourth Amendment to the US Constitution, which restricts unreasonable search.

The Center for Democracy and Technology and the Electronic Frontier Foundation have argued that warrantless searches of cellphones for evidence represents a serious violation of the suspect’s privacy beyond that of a usual warrantless search of a suspect’s pockets, backpack, or car interior.

Verrilli wrote in the Supreme Court brief that such warrantless searches are necessary in this day and age, when criminals are getting ever more savvy about remote wiping, encrypting or phone bricking.

He cited a California case in which a drug-trafficking organisation had procedures in place to deal with phones getting intercepted:

[They] admitted that they had a security procedure, complete with an IT department, to immediately and remotely wipe all digital evidence from their cellphones.

It's only going to get worse, the DOJ said:

Because remote-wiping capability is widely and freely available to all users of every major mobile communications platform, individuals have used the same tactic. ... That problem will only increase as mobile technology improves and criminals become more sophisticated.

The DOJ argued that even if the Supreme Court decides to nix warrantless search on an entire phone, police should still be granted access to phones' call logs, given that they fall under what's known as "third-party doctrine" - i.e., individuals lose their "reasonable expectation of privacy” for information shared with a third party such as the phone company, and the Fourth Amendment's prohibition on warrantless searches no longer applies.

From the brief:

If this Court were to draw a special exception from that settled doctrine for information on cell phones ... it should at least preserve officers’ authority to review information in which the individual lacks a significant privacy interest, such as information that is also conveyed to telecommunications companies.

That's nuts, ACLU principal technologist Chris Soghoian told Wired.

The content in question is on the phone, not with the phone company. That's why the police had to search the device itself, instead of hitting up the phone company for the data, he said:

What matters isn’t just the information, but where they get it from … They’re saying that there are certain things on your phone that have less protections than others under the law, which is crazy.

What do you think? Do you think it's unreasonable for police to flip open a buzzing phone?

Please do share your thoughts in the comments section below.

Image of criminal with phone courtesy of Shutterstock.

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13 Responses to Feds argue for warrantless phone search to avoid suspects kill-switching evidence

  1. Do you think it's unreasonable for police to flip open a buzzing phone? Yes - If warrantless, More so. it will be a major breach of privacy, when unsecured, is a cause for Blackmail concern if it went out of police hands.

  2. Machin Shin · 532 days ago

    Yes it is unreasonable and in my opinion here in the USA it is unconstitutional. The forth amendment says:

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    One very important thing to note is *Papers*, back when the forth amendment was written they did not have electronic devices and so they carried things on paper.

    To me our digital equipment is a direct descendent of papers. My phone has a lot more than just a couple phone numbers in it. It is like a file cabinet full of papers. They do not have the right to search through that.

    • Bart · 532 days ago

      My impression is that the 4th Amendment is history, in that our "persons, houses, papers, and effects" have been subject to warantless searches more and more since 9/11.

  3. Are the police allowed to be in my home, picking up my phone without a warrant or my permission? No.

    • Paul Ducklin · 532 days ago

      I think in many countries, the answer is, "It depends."

      For example, if they attend to an emergency call at your house with reason to suspect a crime in progress, or if they're arresting you having pursused you from the scene of a possible crime (e.g. following you home with reasonable suspicion you're drink-driving), and your phone might reasonably be used for evidence...

      • Fair counterpoint. I was forgetting the "crime in progress" element of this argument...

  4. Anonymous · 532 days ago

    My opinion: Yes,. phones should be protected from warrantless search. However, it is reasonable to allow officers to turn the phone off (and remove the battery if the phone allows it) to prevent remote-wipe commands from being received. It can then be analyzed more carefully in the future if a warrant is issued.

    • Mang · 532 days ago

      Totally that.
      Not being a lawyer of any sort, never mind criminal, I don't see that there's anything against turning off a phone. It's not searching it, after all, just preserving possible evidence, much like "freezing" the house, as mentioned in the article above. Warrentless search should be a no-no though. There is all manner of personal information contained on phones these days, and unfortunately, not every cop is as honest as they should be.

      However, if a device is unsecured/ringing? I'm not sure.
      I think they probably should be allowed to answer a ringing phone, with fairly strict rulings on what they are are allowed to say. It would be very easy to fall foul of entrapment otherwise. Not that US law cares about that as much as thsi side of the pond ;)

  5. Randy · 532 days ago

    "The US Court of Appeals found that the phone search was out of line with the Fourth Amendment to the US Constitution, which restricts unreasonable search"
    The problem isn't the technology, it's the US Court of Appeals. There is nothing unreasonable about the search conducted in the middle of a cocaine bust. The biggest problem in America is the number of idiots who are elected/promoted/appointed to the highest levels of power.

  6. Jim · 532 days ago

    One thing that people miss in the 4th Amendment is the word "unreasonable". THAT is the word on which law enforcement thinking like this hinges.

    We are NOT protected from warrantless searches. We are protected from unreasonable warrantless searches. So the bottom line is whether it is an unreasonable search or not.

    Now, in another vein, pretend ABC company has 20% older people working for them. If they have a layoff of 10% of their employees, and significantly more than 20% of those are older, then they run afoul of the law. How much beyond 20% is a question for the courts, but it's clear that the EFFECT of the layoff on the average age of the employee base is what matters, not management statements that they weren't targeting older employees.

    Similarly, "unreasonable" should include in its definition the reactions of the arresting officer. If s/he felt that there was evidence that could be destroyed, s/he is well within the law to confiscate it, just as s/he would any bongs, dope pipes, cig wrapping papers or whatever were present.

    Now, tie that to the ABC company situation: If the end result of the search is a conviction, then it's clear that the police officers' judgment was correct.

    This is a slippery slope, however, and needs to have solid guidelines. Law enforcement pushes the boundaries of the law, just as the criminals do, so they need to be reined in some by the courts. How MUCH to rein them in is the matter before the SCOTUS.

  7. Andrew Ludgate · 532 days ago

    "If an officer does not search an unlocked cell phone as soon as she finds it...."

    This should really become a non-issue right here in most cases, civil liberties aside.
    If everyone locked their phone properly, the only unlocked phones would be the ones that couldn't be locked before they were seized by the police. As these phones would be "in use" at the time, the rules should be similar to those for other in use containers, such as automobiles, kind of like if you were arrested while writing something on a piece of paper -- I'm sure that could be seized and read.

  8. WCS · 532 days ago

    Yes, they can answer a ringing phone, that is how we recovered a lost phone at Santa Monica Pier when it was handed in to police.

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About the author

I've been writing about technology, careers, science and health since 1995. I rose to the lofty heights of Executive Editor for eWEEK, popped out with the 2008 crash, joined the freelancer economy, and am still writing for my beloved peeps at places like Sophos's Naked Security, CIO Mag, ComputerWorld, PC Mag, IT Expert Voice, Software Quality Connection, Time, and the US and British editions of HP's Input/Output. I respond to cash and spicy sites, so don't be shy.