Feds Beg Supreme Court to Let Them Search Phones Without a Warrant

http://www.wired.com/2014/04/smartphone-kill-switch

by hashx • 12 years ago

165 43 12 years ago

tptacek4• 12 years ago

They want the authority to search phones incident to arrest. Before you form an opinion about this --- I'm not sure what mine is --- you should know that the police have always had broad authority to conduct warrantless, intrusive searches at the time of an actual arrest. That's one of the things that makes arrest very different from mere detention.

If you're arrested by the police, they will not generally need to obtain a warrant to search your person, your pockets, your bag, or the passenger compartment of your car. Thoroughly.

People confuse "search incident to arrest" with "Terry stops", which are light, supposedly unintrusive searches that can be conducted without individualized suspicion for purposes of officer safety (ie, for weapons). Terry stops are the ones where, supposedly, the police aren't supposed to be reaching into your pocket. Search incident to arrest, going back over 100 years, has always had a purpose of discovering and preserving evidence; they aren't simply about officer safety.

That said: a modern smart phone is more than just a container you carry on your person. It can provide access to much of the same personal information that a search of your most personal possessions would. It's a totally reasonable question as to whether an intrusive search of the data on a smartphone falls into the rubrick of what search incident to arrest was meant to cover.

Either way: make sure your phone is encrypted.

diafygi• 12 years ago

How do you encrypt your phone?

rdl3• 12 years ago

On iOS, it is by default (actually, you can't turn it off). The random key used is protected by your passcode. A good 80% solution is to use an 8+ character numeric passcode, or a 6+ character alpha passcode.

Apple can turn off the "try ten times and erase phone" feature, but it still can't brute force faster than ~8 tries per second on a 5S. You might also want to turn off the "apple key escrow" feature.

harshreality• 12 years ago

Stock android: settings - security - encrypt phone (or encrypt device)

http://www.makeuseof.com/tag/how-to-encrypt-data-on-your-sma...

That article doesn‘t provide the proper caveat to enabling the erase data option for passcode lock on iphone. It's obviously dangerous if your phone data isn't continuously backed up.

001sky• 12 years ago

Either way: make sure your phone is encrypted

What is to stop them from compelling your PW?
Is the 5th amendment sufficiently broad to invoke here for blanket protection?

webkike• 12 years ago

The current precedent seems to indicate that no one can make you reveal your passwords. ASFAIK, the EFF was fighting a similar case on these grounds.

danielweber• 12 years ago

IANAL, but the "search incident to arrest," for all its broad powers, still doesn't reach the strength of what a court can compel you to do.

During arrest, you have the right to remain silent.

tptacek4• 12 years ago

It's a good question, but legalisms aside, having your phone securely encrypted with a strong passcode gives you much more control over whether your phone is going to be decrypted.

Even if there's a circumstance in which the police can compel you to decrypt your phone, you're virtually certain to be able to have your attorney present when that happens.

ataggart• 12 years ago

the police have always had broad authority to conduct warrantless, intrusive searches at the time of an actual arrest.

Only insofar as needed to protect the arresting officer from harm or to prevent the destruction of evidence.[1]

[1] http://en.wikipedia.org/wiki/Arizona_v._Gant

tptacek4• 12 years ago

This case pertains only to the search of vehicles, and, as you can see, "to prevent the destruction of evidence" is essentially carte blanche.

Interestingly, search incident to arrest might not allow the police to search a vehicle's trunk.

guelo• 12 years ago

Since modern technology keeps extensive track of everybody's life at all times, when police take an interest in you they now get to examine a complete picture of everything about you. What you were doing, what you were going to do, who you've been talking to, who you work for, your family, your sex life, your romantic life, your interests, your politics, your religion, everything. Why get a search warrant if they can just pull you over for not signaling correctly and then get access to your entire life nicely packaged for them?

Ten years ago they didn't have any of these tools that they now claim are indispensable to do their jobs. How did they do their jobs back then?

higherpurpose• 12 years ago

That's not even the worst part about it. The worst part is that they get to see all of that and then paint the picture they want about you.

opendais• 12 years ago

Which is why I encrypt my phone. I really, really don't want to be responsible for the police invading the privacy of people I'm in contact with.

Because, a phone isn't just you. It is you and everyone you communicate with.

rayiner• 12 years ago

Ten years ago they didn't have any of these tools that they now claim are indispensable to do their jobs. How did they do their jobs back then?

To be fair, ten (well, twenty) years ago people did all those things in a way that was much more visible to the police. People would go get film developed at the drug store, people would use pay phones, etc.

talmand3• 12 years ago

I would say nothing has changed in the long run. As new technology has appeared that may make it easier to avoid the interest of law enforcement, so has the technology that law enforcement uses to counter the avoidance.

If you were a part of a criminal enterprise twenty years ago you developed your own film and never use the randomly chosen pay phone more than once.

I would even go as far to say that their jobs of collecting usable evidence is much easier today than it was twenty years ago.

revelation• 12 years ago

This is a case about a drug dealers mobile phone. Presumably he conducted his business through it. I don't think I need to tell you the vast amount of information stored simply when turning one of these on and having it connect.

rdl3• 12 years ago

I'm completely un-surprised this came up in the context of a drug arrest.

beedogs• 12 years ago

As the article mentions, there's no real need for these search powers, when the phone can simply be turned off or physically taken out of range of reception to prevent it from being wiped. The feds have yet to prove this is even a real problem.

scintill763• 12 years ago

What about a "dead-man's switch" that wipes if the authorized user doesn't authenticate every 30 minutes or so? If network connectivity is lost for too long? And turning it off risks losing resident data on the latest activities of the phone, encryption keys in memory, etc.

I'm by no means a whole-hearted supporter of DOJ's position on this, but I think their opponents are also exaggerating the availability of other options to collect evidence later.

YokoZar• 12 years ago

That dead man's switch sounds like a great way to wipe your phone every time you take a nap.

Regardless, if the hypothetical possiblity that some incredibly uncommon dead man's switch exists is justification for this sort of search, then only allow that sort of search if the police have some sort of reasonable suspicion such a switch exists.

It's analogous to how unwarranted home searches are permitted only if an officer reasonably believes there's imminent destruction of evidence - we don't just allow all home searches without warrants because somewhere out there someone might destroy evidence in their house.

verytrivial• 12 years ago

That sounds very risky to me. I would prefer a second passcode that when entered quietly destroys the cryptographic key.

sitkack• 12 years ago

Why are warrants so bad? How about a public log of every agent and what they searched for and why they searched it.

I believe we would be exposed to the inanity of their methods and means. It is sheer embarrassment that they don't want their actions logged.

EGreg• 12 years ago

Exactly. http://www.theguardian.com/world/2013/nov/04/california-poli...

talmand3• 12 years ago

Because sometimes a police goof that goes public may hurt the victim more than the police. Many people would note that the police searched your house for child porn but many may fail to notice the police got a bogus address from a paid informer who needed money.

Plus I believe that stuff is often public knowledge, it's just not collected in an easy to use manner I would imagine.

It's not that warrants are bad, it's just that the abuse of warrants and SWAT being used for trivial warrants makes them seem bad.

appleflaxen• 12 years ago

Police work /should/ be hard. We don't /want/ it to be trivial for police to poke around in the depths of your personal data, fishing for reasons to think you might have done something wrong in the past.

"my job is difficult" is not sufficient reason to justify what they are asking for.

greenwalls• 12 years ago

Do you think the kill switches mentioned in this article are really to help with mobile phone thefts? It's probably more likely the kill switches will be used to turn off phones in areas where people are doing things the government doesn't like. Want to take a photo of that police officer beating your friend? Sorry, kill switch.

luckyno13• 12 years ago

Honestly, I dont feel like the mandated kill switch is going to be an issue for someone who is wanting to be able to wipe their phones in the case of apprehension. The guys out there today already have a means ready, such as rooting and having a wipe program ready.

dobbsbob• 12 years ago

If you root an android phone then it's trivial for police to bypass the lock screen. There also isn't any time to fiddle with a phone while guns are being pointed at you and police are screaming orders not to move.

Feds Beg Supreme Court to Let Them Search Phones Without a Warrant

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