Obama Administration Asks Supreme Court To Reverse First Circuit To Allow Warrantless Searches Of Cellphones

President_Barack_ObamaCivil libertarians have long ago lost faith in Barack Obama’s and his continuing expression of support for privacy and individual rights. Just in case anyone is still not convinced, consider the petition this month to the Supreme Court by the Obama Administration. Just last week, Obama waxed poetic about his commitment to privacy. Yesterday however, his Administration took another major swipe at privacy and asked the Supreme Court to reverse the United States Court of Appeals for the First Circuit, which held that the police could not conduct warrantless searches of your cellphone when you are arrested. The decision in United States v. Wurie is below.

Since there is a split in the circuits, there is a good chance for a granting of review by the Court. Civil libertarians are shuddering at the prospect of this Court getting their hands on this issue. The Obama Administration is again pitching its case to the most conservative members of the Court like Thomas, Scalia, Alito, and Roberts. It is an irony missed by many. While Democrats often discuss the need for a Democratic president to make appointments on the Court, the Obama Administration routinely relies on the right wing of the Court for its efforts to strip privacy rights and civil liberties.

The case from the First Circuit involves the arrest of Brima Wurie on suspicion of buying crack. The police seized his phone and used it to determine his address. They raided the home and found drugs, cash and guns. It is precisely the type of case that the Obama Administration knows will appeal to Alito, Roberts, and Thomas and probably pull in Kennedy.

The First Circuit simply held that the police could have easily gotten a warrant in this circumstance and should have. That is not enough for the Obama Administration. They want to strip cellphones of any and all protection after an arrest. What was truly striking about the case was the clearly frivolous argument presented by the Administration:

The government has . . . suggested that the search here was “arguably” necessary to prevent the destruction of evidence. Specifically, the government points to the possibility that the calls on Wurie’s call log could have been overwritten or the contents of his phone remotely wiped if the officers had waited to obtain a warrant. The problem with the government’s argument is that it does not seem to be particularly difficult to prevent overwriting of calls or remote wiping of information on a cell phone today. Arresting officers have at least three options.
First, in some instances, they can simply turn the phone off or remove its battery. . . . Second, they can put
the phone in a Faraday enclosure, a relatively inexpensive device “formed by conducting material that shields the interior from external electromagnetic radiation.” . . . Third, they may be able “to ‘mirror’ (copy) the entire cell phone contents, to preserve them should the phone be remotely wiped, without looking at the copy unless the original disappears.” Flores-Lopez, 670 F.3d at 809. Indeed, if there is a genuine threat of remote wiping or overwriting, we find it difficult to understand why the police do not routinely use these evidence preservation methods, rather than risking the loss of the evidence during the time it takes them to search through the phone. Perhaps the answer is in the government’s acknowledgment that the possibility of remote wiping guarded elsewhere by a co-conspirator. . . . Weighed against the significant privacy implications inherent in cell phone data searches, we view such a slight and truly theoretical risk of evidence destruction as insufficient. While the measures described above may be less convenient for arresting officers than conducting a full search of a cell phone’s data incident to arrest, the government has not suggested that they are unworkable, and it bears the burden of justifying its failure to obtain a warrant.

It is absurd to argue that, because it is theoretically possible that the contents of a device could be lost, all such devices should be stripped of all protections. However, it is a signature of the extreme views of this Administration. People can be arrested for a great variety of crimes, including relatively minor offenses. Yet, the Administration insists that a phone is no different from any other object found in a vehicle despite the fact that people now hold a huge amount of data, pictures, and messages on their phones. Today’s phones are little computers and are often used for everything from bills to personal communications. Indeed, the danger in this case is the fact that cellphones have changed since this arrest. This is how we ended up with the automobile exception to the Fourth Amendment. In Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court held that the warrantless search of an automobile could be done without a warrant because of the exigent circumstances and difficulty in securing a warrant. The Court held that there was a lower expectation of privacy for vehicles — a self-fulfilling prophesy when you strip away protections. Later when telephonic warrants allowed for such searches to be done within the confines of a warrant-based search, the Court simply ignored the new technology and the lack of exigency.

The Administration knows that this older phone allows for an easier way to strip away privacy protections from citizens. That is why it is moving now. The war on privacy is now truly one of the most prominent elements of the Obama legacy. More than any modern president, his Administration has led a full frontal attack on privacy and has largely succeeded as Democratic leaders follow sheepishly in his wake.

This is an important case and the potential loss for civil liberties could be immense. It is the right Court and the right technology for the Obama Administration to add to a growing list of unchecked police powers in the United States.

Here is the original opinion

Source: Washington Post

113 thoughts on “Obama Administration Asks Supreme Court To Reverse First Circuit To Allow Warrantless Searches Of Cellphones”

  1. Howdy! Quick question that’s totally off topic.
    Do you know how to make your site mobile friendly?
    My weblog looks weird when viewing from my apple iphone.
    I’m trying to find a template or plugin that might be able to fix this issue.
    If you have any suggestions, please share. With thanks!

  2. When I initially commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added I get three e-mails with the same comment.
    Is there any way you can remove me from that service?

    Thanks a lot!

  3. Hi there! I know this is kinda off topic but I’d figured I’d ask.
    Would you be interested in exchanging links or maybe guest authoring
    a blog post or vice-versa? My site goes over a lot of the same subjects as yours and I believe we could greatly benefit
    from each other. If you’re interested feel free to send me an
    e-mail. I look forward to hearing from you! Fantastic blog by
    the way!

  4. Getting ready for work in the morning might also
    take a little longer if you couldn’t sling on a tailored jacket, shirt and heels with your smart denims.|
    What would we slip into when we want to dance the night away, to shop, to decorate, to do
    the school run, to go to the pub, to ramble in the country, to attend a movie premiere,
    or even to travel first class if they are blue and expensive
    enough, it’s fine?|
    Lord only knows what would happen to all of those people who, still
    befuddled from the night before, pick their jeans up off the floor, pull them on and suddenly look together.|
    Remove their denim and you might remove their ability to cope with
    the world.|
    Jeans have become the single most important piece of clothing
    in the modern woman’s wardrobe. These days, the right pair can take a girl
    anywhere, with the possible exception of a funeral (although Helmut Lang’s black pair is very smart.|
    “I don’t object to people wearing jeans to all manner of social occasions,” says
    the usually arch-conservative Ann Widdecombe. “But I would have a fit|

    … if someone came into parliament in jeans.|
    The House aside, in every other situation, there is a denim solution. Everyone owns them, everyone wears them, everywhere.|
    Jeans are the most democratic item of clothing ever invented.|
    You could even argue that denim and democracy go hand in hand perhaps that is why black-market Levi’s jeans sold for shocking amounts in post-perestroika Russia.|
    Denims: A fashion opium, wardrobe essential|
    Our love affair with denim isn’t just a sartorial one, though. It’s emotional. Jeans are fashion opium. They make everything not just look okay, but feel it, too.|
    Even people who don’t look good in jeans (the old and the flabby), feel fabulous in them. It’s win-win.|
    Jeans are such a pivotal part of our wardrobes that it is hard to imagine life without them.|
    You would have to turn back the clock 70 years, to 1935, when Levi’s first created proper jeans for women. Before then, ladies had been borrowing denims from their menfolk.|
    What Levi’s introduced as an item for New York society ladies to wear when they went dude-ranching in the Wild West, soon took on a fashion life of its own.|
    Teenagers bought them in droves in the 1950s; in the 1960s, women customised them with patchwork and peace signs. Denim became politicised, a symbol of youth and the desire for change.|

  5. Just like with the NSA and other Obama policies. A perfect movie example (from a great movie full of great qutoes) of Obama’s lack of respect of the constitution and rule of law. I voted twice for this guy (due to lack of suitable alternatives) but I am beginning to question whether Dick Cheney respects the constitution more. That is scary.

Comments are closed.