EDD: Issues, Law, and Solutions: Case law : Cops In California Don't Need A Warrant To Search Your Cell Phone For Info

Thursday, February 3, 2011

Case law : Cops In California Don't Need A Warrant To Search Your Cell Phone For Info

Search and Seizure
"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particulary describing the place to be searched, and the persons or things to be seized."

The next time you're in California, you might not want to bring your cell phone with you. Especially if you aren't planning on behaving yourself.

On January 3rd, 2011, California’s Supreme Court ruled in The People v. Gregory Diaz that phones carried at the time by suspects apprehended by police do not have Fourth Amendment protections. The case began in 2007 with the arrest of Gregory Diaz, for selling a controlled substance. Diaz was taken to a police station, where a detective removed Diaz’s phone from his person, and placed it with other evidence collected in the case. The arresting officer began to interview Diaz, and in the course of the interview, looked at the text messages on Diaz’s phone. One read “6 4 80,” or 6 pills for $80. Confronted with this text, Diaz admitted to selling drugs.

In court, however, he argued that viewing of his text messages, by police and without a warrant, violated his Fourth Amendment protections to be secure in is person, papers and effects against warrantless search. An exception to this protection exists: “incident to lawful arrest,” (United States v. Robinson (1973)) an officer may search an arrested suspect and the area immediately around him. Diaz argued that since cell phones today carry huge amounts of information, including information about associates, e-mails, text messages, records of calls and other such revealing data, it should not be subject a search, like clothing or a cigarette package were in prior case law, but rather should be treated like a closed container or box—that once separate from the actor in a significant period of time and space, it should not subject to warrantless search (United States v. Chadwick).

Dissenters on the California court found this argument persuasive; however, the court held that the character of seize evidence did not determine whether it could be searched; merely its possession or control by the actor at time of arrest made it eligible for a later search. The court made a comparison to a traveler carrying a paper bag with some personal effects, and an executive with a locked attaché case. Both, the court reasoned, should share equal protections. So then should a phone carry no more protection than other, unprotected methods of carrying personal information; perhaps an address book, or other “small spatial container” with “highly personal, intimate and private information, such a photographs, letters or diaries”.

It seems to me that the court seems to make fundamental misunderstandings about the digital nature of these devices; a cell phone can contain thousands of emails, photographs, text messages, records of meetings and birthdays, information about associates unlimited in depth and in breadth, and huge numbers of personal notes analogous to those found in a diary. A cell phone can easily hold, in its small form, more enough information to fill dozens of scrapbooks with photographs, stuff whole briefcases with e-mails and text messages, were they to be printed out on paper, fill many, many address books with information about friends and acquaintances, hold years’ worth of information that may take several calendars or planners to hold. In short, cell phones hold more information than could ever be carried by an individual, were it not in a digital form. In ignoring this fact, the court sets a dangerous precedent where a simple arrest can allow authorities to view records containing a record of the individual’s entire life since possessing a cell phone, a terrifying prospect for those with any desire to maintain protection from searches unreasonable in scope and breadth. Laptop computers and the like were not addressed and begs the question: If your phone is password protected, would they need a warrant to use some kind of equipment to get into it? Because having to break into a phone puts it clearly beyond the "plain view" rules to me.It will be interesting to see how this progresses.

This doesn't seem to apply to your everyday traffic stop, Still, this seems invasive, and not all the justices were in agreement with the ruling

Dissenters Kathryn Mickle Werdegar and Carlos Moreno wrote:

"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."

California Deputy Attorney General Victoria Wilson told the media that the split decisions in California and Ohio could lead the U.S. Supreme Court to personally look into the issue of police searching cell phones.

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Sedona Principles 2nd ed.

1. Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation.
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.
3. Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.
4. Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
10. A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.
12. Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.
13. Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party.
14. Sanctions, including spoliation ﬁndings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.
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