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. Elaine,

    That link reminds of a scene in the movie “RED” when Karl Urban’s character goes to read Bruce Willis’ CIA file. Upon seeing page upon page of blackout, he says “Come on!”

  2. “That’s a bombshell there.”

    Right now in the WAPO on-line version Brian Fung has an article “The FISA court got really upset when the NSA didn’t tell the truth on surveillance”.

    In the article Fung states “In a 2011 court opinion, the FISA court repeatedly accuses the NSA not only of failing to comply with the rules, but of misleading it outright.”.

    The administration’s claim that congress and the FISA court provide appropriate oversight to NSA seems to be crumbling.

    Previously members of congress have stated that NSA stonewalled their request for documents and that the chairman of committee withheld relevant documents necessary for the oversight function.

    Talking heads of msm have claimed that NSA activities are legal because FISA court said they are legal. Apparently not so much.

    In a democracy this would call into question the legitimacy of the administration.

  3. The Electronic Frontier Foundation (EFF) won their lawsuit against the Obama administration. The administration had been fighting to keep secret a FISA court ruling issued back in October 2011. The true reason they fought so hard to keep the FISA court decision secret was uncovered today. Short version: The FISA court ruled the NSA surveillance operation was illegal.

    No wonder the administration tried to keep the ruling secret. Link is to the 80+ page decision. Some parts are still redacted.


    EFF link here. Their site has a history of the court battle as part of something they call “The Transparency Project.”


  4. Easy way to defeat cops using your phone…. pass-phrase instead of 4 digit pin and set it to wipe itself after 3 invalid attempts should help

  5. Bradley manning given 35 years. President who ordered him unlawfully detain and tortured isn’t on trial.

  6. lotta, A coroner gives a “cause of death.” The cause of death was blunt force trauma caused by hitting a fixed object @ high speed!! Amphetamines would be “the cause of death” if Hastings overdosed on them. Absent any new information, I’m afraid this is the ravages of drug addiction, not a conspiracy.

  7. nick: “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. ….”
    Traces, which the report says was not a factor in the accident. Adderall (sp) was a prescription drug that Hastings took that can leave the trace of amphetamine in the blood. It’s primarily a drug for AHAD.

    The Young Turks did a long story today on it and the way it’s being spun as a drug related death to shut down any further inquiry. You have to sit through the commercial but it’s worth it:

  8. bigfatmike,
    Yo mean like noticing that the passenger sitting next to you is attempting to light his shoes? Or then maybe, his underwear? Like THAT kind of plot disruption?

    1. “the passenger sitting next to you is attempting to light his shoes? Or then maybe, his underwear?”

      My recollection is that when a guy burned a considerable part of his anatomy usually covered by underwear, the government announced that the system worked just the way it is supposed to.

      In fact we did not loose a plane and a few hundred passengers because of an incompetent bomb maker and plain dumb luck that some passengers – not air marshals – intervened.

      I will take the government’s word that this is the way the system is supposed to work.

      And on that evidence I would argue that the current extreme system that is a clear threat to liberty does not work very well at all.

      So again the important question are how do we reasonably assess rare events.

      How do we know that the supposed success preventing rare events is not just plain dumb luck.

      How do we know that more traditional methods would not be as good or perhaps even better than the current system.

      And considering the track record of current experts at anticipating, identifying and preventing rare events, do we dare leave the experts in control?

      Can we really afford to trust the experts with our safety and our liberty?

      BTW, I do not believe there are simple or easy answers. I also do not believe that current level of secrecy helps us understand the problems or protect our nation.

  9. UK Media Crackdown: Greenwald’s Partner Detained, Guardian Forced to Destroy Snowden Files. 2 of 2

  10. Sorry but… I never hear Ann Coulter OR ThinkProgress cover this story the way DemocracyNow does, almost daily. I’m sure someone can show me a link to their in depth coverage like I can on DN or the Guardian OR even HuffPost. So anyway…

    UK Media Crackdown: Greenwald’s Partner Detained, Guardian Forced to Destroy Snowden Files. 1 of 2
    (starts out rough)

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