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Court upholds searches of text messages in drug arrests

  1. Terrapinzflyer
    The California Supreme Court ruled in San Francisco on Monday that police are entitled to search text messages on the cell phones of arrestees without obtaining a warrant.

    The court, ruling in a Ventura County case, said by a 5-2 vote that warrantless searches of text messages are permitted under precedents set by the U.S. Supreme Court.

    The panel upheld the drug conviction of Gregory Diaz, who was arrested for aiding in selling Ecstasy to a police informant during an undercover sting operation.

    Sheriff’s deputies seized Diaz’s cell phone along with six tabs of Ecstasy. One and one-half hours later, a detective, who did not have a search warrant, looked in the text message folder of the phone and discovered a coded message that referred to Ecstasy sales.

    When confronted with the message, Diaz admitted to participating in the deal. He later pleaded guilty to transporting a controlled substance and was sentenced to probation, but he reserved his right to appeal the use of evidence from the text message.

    The state high court majority said the search was permitted under U.S. Supreme Court rulings that have allowed warrantless searches of personal property such as clothing or a cigarette package that are “immediately associated” with a person who is arrested.

    Justice Ming Chin wrote that Diaz’s cell phone was personal property, similar to clothing, that was immediately associated with him and the search was therefore valid.

    Justice Kathryn Werdegar argued in a dissent that the search of text messages was “highly intrusive” and could have been carried out later after police obtained a warrant.

    She said the U.S. Supreme Court rulings should be reevaluated in light of developments in modern technology.

    But Chin, writing for the majority, said that any reevaluation “must be undertaken by the high court itself.”

    By: Bay City News



  1. Terrapinzflyer
    Search Ruling Makes Smartphone Security More Crucial

    The California Supreme Court has ruled that the police do not need a warrant to search the cell phone of an individual during arrest, a verdict that sent shivers down the spine of civil liberties campaigners.

    The ruling follows an appeal by a drug dealer who was arrested after selling Ecstasy tablets to an undercover officer. During arrest the dealer's cell phone was seized and, following an interview at the station, the arresting officer looked at the phone's text messages. He uncovered one text seemingly placing an order for drugs and when the dealer saw it, he admitted the crime.

    Essentially, the ruling says that searching a cell phone is just like searching any other property the defendant might have at the time, such as clothing or a cigarette package. This is based on precedents set in the 1970s.

    In a dissenting comment, Associate Justice Kathryn Werdegar pointed out how absurd this is: "The potential intrusion on informational privacy involved in a police search of a person's mobile phone, smartphone or handheld computer is unique among searches of an arrestee's person and effects... Never before has it been possible to carry so much personal or business information in one's pocket or purse."

    From a civil liberties view, the issue whether a warrantless search of a personal electronic device is justified bearing in mind the Fourth Amendment.

    However, from the standpoint of an IT professional it's merely a reminder that businesses need to both create and enforce policies regarding data storage on personal electronic devices. With the ability to work highly effectively from modern smartphones and tablets--something users of primitive handsets couldn't do just a few years ago--mobile data security has become a critical issue that can no longer be ignored.

    Employees need to be aware that just because data is contained in electronic form on their phone, it is no less confidential and should be treated no less carefully than that on paper. Ideally, this should be written into employment contracts.

    From a user's point of view, there's an easy solution to the problem if confidential data appears in text messages: Delete them after reading (and empty the trash folder, if necessary). Alas, we're not used to doing this and mobile phones don't encourage us to do so, making the procedure clumsy.

    From a business perspective, to protect against data leaking out via SMS, it might be simpler to deactivate text messaging if the company is paying for the phone service. This is possible with many carriers. Additionally, some cell phone product lines such as BlackBerry allow the text messaging functionality to be deactivated (look under the Firewall settings).

    Alternatively, text message data can be encrypted so that it isn't immediately available to anybody without the passkey, thus forcing authorities to seek a warrant should they want to view it.

    When it comes to SMS messages, Whisper Systems created waves last year with its TextSecure product for Android, which not only encrypts text messages received but also encrypts transmission of text messages if the recipient is also running TextSecure. TextSecure is available from the Android Marketplace, although is currently in beta testing. There are similar programs for other platforms, such as SecureSMS for iPhone.

    If it's imperative that SMS messages are saved--maybe to conform to data retention legislation--users should be encouraged to use PC sync software on office computers to download messages to the hard disk and then delete them from the phone. Some cell phone sync software will even download messages automatically as soon as the phone is plugged into the computer, so a solution could be as simple as providing each worker with a docking station in which they can cradle their cell phone when at their desks. If the docking station has a built-in charger, this will add an imperative to use it.

    Keir Thomas
    Jan 6, 2011

  2. Terrapinzflyer
    interesting paper on the las issues here that is going to be published in the Iowa Law revue.

    Password Protected? Can a Password Save Your Cell Phone from the Search Incident to Arrest Doctrine?

    Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals. Under the so-called search incident to arrest doctrine, police are free to search text messages, call histories, photos, voicemails, and a host of other data if they arrest an individual and remove a cell phone from his pocket. Given that courts have offered little protection against cell phone searches, this article explores whether individuals can protect themselves by password protecting their phones. The article concludes, unfortunately, that password protecting a cell phone offers minimal legal protection. In conducting a search incident to arrest, police may attempt to hack or bypass a password. Because cell phones are often found in arrestees’ pockets, police may take the phones to the police station where computer savvy officers will have the time and technology to unlock the phone’s contents. And if police are themselves unable to decipher the password, they may request or even demand that an arrestee turn over his password without any significant risk of the evidence on the phone being suppressed under the Miranda doctrine or as a Fifth Amendment violation. In short, while password protecting a cell phone may make it more challenging for police to find evidence, the password itself offers very little legal protection. Accordingly, legislative or judicial action is needed to narrow the search incident to arrest doctrine with respect to cell phones.
  3. torachi
    Of course, this won't stop police from detaining, searching, taking property from, and then leading away an individual, giving them ample time to illegally flip through his phone.

    This might not give them evidence they can use directly, but could easily lead them to names, numbers and a good idea to what he and his friends are up to.

    For that reason, a friend of a friend actually cracked the screen of his phone during a drunken arrest to avoid anything on the phone being legible.
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