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. “US citizens killed (not in combat) by terrorists worldwide (2012): 17
    None of those were in United States territory.”

    I think that number gives some useful perspective.

    Nevertheless, I think that very small number leads immediately to the question of how to evaluate the possibility of rare (black swan) events.

    And if your techniques are intended to prevent the rare events how do you know when the techniques are effective and not just lucky.

    How do you know other techniques are not as effective. Is it possible other techniques might be even more effective.

    And why is it whenever, as a community, we start a serious discussion of these issues somebody changes the DEFCON to red or what ever they say now. It is almost as though our adversary knows when we might let down our guard and starts ‘chattering on their conference calls’ to rev us up again. What a considerate enemy.

  2. Gene, As you know, in a proper investigation, there are no coincidences unless proven. What may have been a high stakes murder turns out to be the curse of meth. You wrote passionately about that scourge just about the time I started reading here. You know it’s maybe the worst drug out there. And, you know the pain it has caused the Hastings family.

  3. Ahhhh . . . the irrationality of fear, especially uninformed fear, is again made manifest.

  4. Causes of death of Americans in typical years for which data are compiled and available:

    Motor vehicle accidents (2010): 33,687
    Poisoning, mostly accidental (2010): 42,917
    Cancer (2011): 574,743
    Weather related (2012): 528
    Infant mortality for children under age one year old (2010): 24,586
    Gunshot (2010): 31,672
    Falls, mostly accidental (2010): 26,852
    Suicide (2010): 38 364

    Wait for it………..

    US citizens killed (not in combat) by terrorists worldwide (2012): 17
    None of those were in United States territory.

    Number of people killed by falling TV sets: 176
    If the TV stands are included: 293

  5. “Meth is a mofo.”

    And then some, nick. That’s the thing about suspicion though. Often what appears to suspicious in some way often turns out to be coincidence or accident. Post hoc ergo propter hoc. Evidence is king in tracing causality.

    Again, my condolences to the Hastings family.

  6. Off topic: Michael Hastings has been of interest to some of us here. The Daily Mail is reporting today that Hastings was positive for amphetamine and cannabis in toxicological tests performed by the LA Coroner’s Office. They further report that Hasting’s family were on their way to LA to conduct an intervention. Hastings reportedly had been an addict, but was clean and sober for a decade. His relapse was known to those who knew him. This would explain the attitude of Hasting’s family after his death. They were not calling for inquiries and seem to have seen this coming. I suppose some will still see a conspiracy. I had an open mind and said the tox test would be key. Combine the test results, and the upcoming intervention, I’m saying it’s not anything sinister, just sad. Meth is a mofo.

  7. The 4th Amendment has been beaten, cracked, side stepped, narrowed, avoided for the last 4 decades. It is almost meaningless now with all the court created exceptions. WOW, this continues to be a frightening time in our country. “Bad things happen when good people don’t speak out”! As a criminal defense attorney for 37 years I want to lodge my objection publicly as I do every day in a Court of Law in any criminal case I defend that requires my offense!

    Legal Alert: SCOTUS should decide if cops need warrant to search cellphones at arrest, two appeals judges say
    July 31, 2013 | ABA Journal
    Debra Cassens Weiss
    Two federal appeals judges are explaining why they voted to deny an en banc rehearing of a decision requiring police to get a warrant before searching cellphones incident to arrest.

    The Boston-based 1st U.S. Circuit Court of Appeals denied the rehearing in an order released Monday, the Wall Street Journal Law Blog reports. Chief Judge Sandra Lynch and Judge Jeffrey Howard both issued statements with the denial saying the issue needs to be decided by the U.S. Supreme Court.

    “I vote to deny rehearing en banc because I think the preferable course is to speed this case to the Supreme Court for its consideration,” Lynch wrote. “The decision in this case creates a circuit split with respect to the validity of warrantless searches of cellphones incident to arrest. State courts similarly are divided. As the government points out, the differing standards which the courts have developed provide confusing and often contradictory guidance to law enforcement.”

    Howard agreed that the issue “requires an authoritative answer from the Supreme Court” and said he sees no reason to delay a speedy consideration by reconsidering the case. He added that his dissent from the original ruling “looks better in light of the Supreme Court’s recent opinion in Maryland v. King” upholding DNA swabs for arrestees.

    The 1st Circuit had ruled in May that Boston police violated the Fourth Amendment rights of Brima Wurie when they searched his cellphone after observing him making what appeared to be a drug sale.

    Police found calls from a number labeled “my house” and traced it to the apartment of Wurie’s girlfriend, according to the Law Blog story. They searched the place after obtaining a warrant, finding drugs, money and a gun. The 1st Circuit opinion had overturned his conviction and sentence of more than 21 years in prison.

  8. US doesn’t know what Snowden took, sources say
    By Michael Isikoff, Matthew Cole, and Richard Esposito
    NBC News

    More than two months after documents leaked by former contractor Edward Snowden first began appearing in the news media, the National Security Agency still doesn’t know the full extent of what he took, according to intelligence community sources, and is “overwhelmed” trying to assess the damage.

    Officials, including NSA director Keith Alexander, have assured the public that the government knows the scope of the damage, but two separate sources briefed on the matter told NBC News that the NSA has been unable to determine the full extent of the data he removed.

  9. Elaine: “Arianna was once a conservative.”

    I’m familiar with her from Maher and she seems to have become more conservative since I first saw her there. That’s interesting to know though, maybe she’s selectively liberal or going back to her roots.

    Jill: “This may interest you”
    Thanks, it is interesting but logical, everything -including a point of view -is a commodity, knowing how to sell something has always been as important as what you were selling.

  10. A Tale Of Two Conversions: Why Conservative Arianna Huffington Offends More Than Liberal Michele Bachmann
    by Frances Martel | 12:47 pm, August 5th, 2011

    Given the polarized nature of politics in this decade, it takes a certain amount of fearlessness to publicly switch teams– or even admit to a past reawakening. While certainly not alone in doing so, former Carter campaign staffer Rep. Michele Bachmann and former conservative gubernatorial candidate Arianna Huffington present a striking contrast in how to let the base down easy with news that you are or may have been playing on the wrong team. Simply put, it’s a lot easier to do when switch parties doesn’t necessarily mean switching beliefs systems– and yes, one is possible without the other.

    Huffington has faced fierce criticism for her conversion to left-wing politics that Rep. Bachmann, while certainly fending off a barrage of criticism of her own, never had to deal with. Much of this, of course, has to do with the fact that Rep. Bachmann switched teams very early on in life, and aside from some work for the Carter campaign in college, while Huffington experienced this conversion very late in life, and at a very convenient time– during the darkest of the Bush years, when a market had opened for liberal dissent and vocal calls for big government. But it also have to do with the nature of the change in ideology and the climate in which it happened.

  11. OS, not a surprise, a dead site is not the point, a continuously running vacuum-cleaned, a source, is what the government wants. And compliance, compliance with whatever they want when they want it and anything that gets in the way of that is contemptuous of that desire.

    The reason i don’t use Animal Farm references is because I truly respect our Porcine cousins. Righteous pigs, as a class, suffer at the comparison.

  12. Another victim of the surveillance state: Groklaw has shut down because they can no longer promise their contributors and users anonymity:

    Pamela Jones, Groklaw’s founder, cited the alleged US practice of screening emails from abroad and storing messages “enciphered or otherwise thought to contain secret meaning” for five years.

    Groklaw had promised its sources anonymity, but said it could not now ensure contributors would stay secret.

    Experts said they were worried that a site like Groklaw was closing.

    BBC online has the story:

    The NSA and other “security” agencies are destroying the tech industry in the US. What overseas business or academic facility will want to work with a US tech company as long as these practices continue?

    The Information Technology and Innovation Foundation says US based cloud computing operations stand to lose somewhere between $21 and $35 billion. All due to the PRISM surveillance program run by the NSA.

    Source: http://www.itif.org/publications/how-much-will-prism-cost-us-cloud-computing-industry

  13. Jill, I think at one time HuffPo was more liberal, or made a splash in a small pond, but Arianna (?) strikes me as all about the money. I see her on Maher sometimes and she’s not the liberal I remember her being.

    Since no one else mentioned them I’ll advocate The Professional Left, their podcasts are always fun. Driftglass and Bluegal have their own sites but I like their podcasts. And Cenk Uygur is on YouTube exclusively now, He’s playing in the background on the Michael Hastings death/coroner’s report/MSM closing the book on his death after the shaping of the story. He’s going back to the 2000 election regarding the active collaboration of the MSM in selling lies in opposition to their (the MSM) own studies. Cenk is cool. The new address (since he has left Clear Channel:

  14. The story of Lavabit shutting down just got more bizarre. Ladar Levison, founder of Lavabit said the government has threatened to charge him criminally because he shut Lavabit down.

    “…the government has threatened him with criminal charges for his decision to shut down the business, rather than agree to some mysterious court order. The feds are apparently arguing that the act of shutting down the business, itself, was a violation of the order:

    … a source familiar with the matter told NBC News that James Trump, a senior litigation counsel in the U.S. attorney’s office in Alexandria, Va., sent an email to Levison’s lawyer last Thursday – the day Lavabit was shuttered — stating that Levison may have “violated the court order,” a statement that was interpreted as a possible threat to charge Levison with contempt of court….”

    Read the rest of it on TechDirt here:


  15. L.K. This may interest you: ” “We use an expression that you’ve probably heard before, which is ‘location, location, location,’ because we can tell what’s happening and where it’s happening. And we can tell you what that really means,” says Illuminare’s CEO, Jim Smith, a veteran ad executive who was general manager for Lord Dentsu Y&R in Los Angeles, as well as co-founder of Ground Zero (since merged into Wong, Doody, Crandall, Wiener). It’s his task to turn the work of the academic experts—who also include John Mazziotta, chairman of the UCLA Medical School’s neurology department and director of the school’s brain mapping center; and Dieter Enzmann, chairman of UCLA’s radiology department—into services appealing to potential customers.

    Smith says they expect customers to extend well beyond the ad industry. (News reports suggest political consultants, package designers, and the movie industry have already turned to neuromarketers for data.)


    Elaine, thanks for the write up by Matt.

    “This is data you cannot access with traditional tools,” says Iacoboni. In classic focus groups and telephone survey research, he adds, “people can tell you things because of social pressure that they don’t really mean.”

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