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.
Source: Washington Post