The new police search battlefield: your cell phone
February 22nd, 2010 by scaredpoet

One thing that really annoys me about the tattered state of civil rights in the US is how technology is being used by law enforcement as a means to short-circuit basic privacy protections. Flying under the banner of things like “Homeland Security,” the common excuse seems to be made these newfangled desktop and mobile computer-machines don’t operate like the old, analog, physical things that used to replace them, and so somehow, this means the existing laws don’t apply. Sadly, it also seems like lawmakers are in no rush at all to make it clear that our Fourth Amendment Rights apply whether or not our belongings are stashed in a physical box, or whether they’re accessible via a keyboard or touch screen.

The latest arena for the battle for your privacy is your cell phone, and so far, law enforcement is on the offensive here.

Just three years ago, I don’t think the majority of people using cell phones would’ve thought that they would’ve carried so much about our lives.  But love it or hate it, the iPhone totally brough the smartphone concept out of the exclusive hands of geeks, and made the smartphone industry change their look, change their audience, and permit even the most tech-unsaavy to have one.   I can say without argument that even before Steve Jobs gave the cell phone industry a good swift kick in the ass, my whole life is pretty much on my phone.  Pictures of what I did last week; pictures of my family and girlfriend and girlfriend’s family, and all the little kissy-poo text messages we write back and forth; my personal and work schedules: where I’m going, where I’ve been, where I’ll be next week or six months from now; my music collection; all the addressees, phone numbers, and e-mail addresses of my friends; my work stuff: documents, e-mails, the status and condition of every web server I manage.  It’s all there, in this 4.8 ounce flat slab of plastic, silicon and glass that never leaves my side, and that I would feel naked and unprepared without.

Now, I can say with all truthfulness that I have nothing “illegal” on my cell phone, nor anything that should even suggest I’m doing anything illegal.  But, that doesn’t mean that I want just anyone picking my phone up and smearing their greasy, greedy fingers all over its screen, rummaging through it.  And I don’t think my friends would appreciate that much either…


Still, it looks like police departments across the country are fighting hard for the right to look into the contents of your cell phone, without the need for a warrant:

Concerns about privacy are not merely hypothetical. In March 2008, Nathan Newhard was arrested on suspicion of drunken driving in Culpeper, Va., and his cell phone was seized. In the pictures folder of the cell phone were multiple pictures of Newhard and his then-girlfriend, Jessie Casella, nude in sexually compromising positions.

Newhard and Casella—at that point no longer a couple—filed separate civil rights lawsuits against Sgt. Matt Borders, who they said alerted the rest of the police department on the radio “that the private pictures were available for their viewing and enjoyment.” Newhard claimed that, as a result of the incident, he was nonrecommended for continued employment with the Culpeper school system, where he had worked before the arrest.

A federal judge in Virginia last year agreed that the police conduct was “irresponsible, unprofessional, and reprehensible” but said that Culpeper police officers could not be held legally responsible because they did not violate any clearly established constitutional rights. In addition, the court pointed out, the Fourth Circuit Court of Appeals had ruled that “officers may retrieve text messages and other information from cell phones and pagers seized incident to an arrest” to preserve evidence.

The above article makes it pretty clear that our courts are outright fucking clueless!  Somehow, although the court admits the police officer was in the wrong, not only have they decided that cell phones are not subject to “clearly established” constitutional protections against unreasonable search and seizure, but that photos are somehow “text messages” and this is what makes them fair game.

In what universe does this make ANY sense?

The case isn’t isolated, however.  It’s happened in other traffic stops, too:

Our newest entry is the woman who carried around on her cell phone pictures of herself, naked. “Why?”, you may ask. Who knows? Indeed, some of you may say “who cares?” The point is, there she was, in all her glory, naked, in pictures on her cell phone.

And then she got pulled over for a DUI.

And, for some reason, after she had already had the breathalyzer, and otherwise complied with the nice officers, for some reason the nice officers decided to look on her cell phone to see what they could see.

And all that they could see…and all that they could see..was the other side of the suspect… the naked side.

And..just to be know.. to preserve evidence… the arresting officer put copies of those pictures on his personal PDA.

And showed them to a few people.

He claims that “he copied the photos to his PDA because he thought it was unusual and could be used as evidence later.”

Are we starting to see a disturbing trend here?  Once again, constitutional protections may be swatted away by curmudgeons who think “Bah! If you’re doing nothing wrong, then you have nothing to hide!”  But, there’s nothing specifically illegal about having consensual nude pictures of yourself or your significant other.  Maybe you might argue that it’s wrong on moral grounds, but then, I doubt these people were planning on showing this stuff to people who didn’t want to see it. And they certainly didn’t expect that it would become the “evidence” stored by creepy cops who are using traffic stops to go on porn-surfing fishing expeditions.

Thankfully for me, I have no porn on my cell phone.  I’m not stupid.  Even so, stupidity is still not a crime, and as long as that person isn’t actually breaking any laws, I think they should be allowed to stash all the porn they want on their mobile device, without having to worry about some unscrupulous cop barging in and wanting to find something fap-worthy.

Granted, there are cases where criminals really do put incriminating evidence on their phones. But for centuries now, law enforcement has dealt with evidence gathering in a very constitutional, respectful way: by getting a search warrant.  If they really feel a solid case can be found in the contents of one’s Blackberry or iPhone, why can’t they wait an hour or to to have a judge sign a warrant?

One Response  
  • FuturePilot writes:
    February 22nd, 2010 at 3:23 pm

    Wow, things like this really piss me off.

    The thing that kills me is when people say “I have nothing to hide”. If you have nothing to hide then please take all the blinds and curtains off your all your windows. If you have nothing to hide then you won’t mind everyone looking in your house.

    I just don’t understand why things are treated differently if they’re in electronic form. So if it’s stored on a computer or phone all of a sudden you can bypass laws and then not have to deal with legal ramifications of your actions? Disturbing trend indeed.

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