Law abiding citizens such as yourself and I may have to pay yet again for the thoughtless and illegal actions of a criminal. What happened this time you ask? Well due to a California Supreme Court decision (5-2 The People of Ventura County vs. Gregory Diaz) filed on Monday January 3, 2010, law enforcement can go through the contents of your cell phone without a warrant in California.

msnbc:  Red Tape Chronicles

The ruling handed down by California’s top court involves the 2007 arrest of Gregory Diaz, who purchased drugs from a police informant. Investigators later looked through Diaz’s phone and found text messages that implicated him in a drug deal.  Diaz appealed his conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. The court disagreed, comparing Diaz cell phone to personal effects like clothing, which can be searched by arresting officers.

In fact, the ruling goes further, saying essentially that the Diaz case didn’t involve an exception — such as a need to search the phone to stop a “crime in progress.” In other words, this case was not an exception, but rather the rule.

In its ruling, the majority likened cell phone inspection to police inspection of a cigarette pack taken from a suspect, which was ruled a legal search in a prior case.  A second ruling was cited involving the search of clothing removed from a suspect.

Rasch said the analogies don’t hold, however, as modern phones that can store years’ worth of personal information are a far cry from drugs hidden in a cigarette case or clothes pockets.

“There is a process for looking at data inside devices,” he said. “It’s called a warrant.”

Grants police ‘carte blanche’

The California ruling was not unanimous. Dissenting Justice Kathryn Werdegar raised similar concerns in her opinion.

“The majority’s holding … (grants) police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person,” she wrote. “The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution.”

[ source: ]

Bonus points for Justice Kathryn Werdegar on her position and with any hope when this case goes to the United States Supreme Court, the Justices there will note her position and overturn the ruling. Not because we want a criminal to get away with dealing drugs but because mobile devices have essentially become containers of our private lives. I don’t have anything to hide, yet I don’t want anyone without a damn good reason peeping around my private content and if they must do so they better have a warrant. If anything I’d be concerned about their lack of knowledge which could potentially cause some kind of data loss by the meddling about.

Some of you might say, well I have nothing to hide so its fine with me. The problem with that way of thinking is that in the long run rulings like this diminish our privacy even further. How much of are we willing to give up? We already have to choose between getting groped or passing through a scanner that zaps you with low levels of radiation. Now we have to submit to warrantless searches of our phones? There is a reason why we have a Constitution!

I wonder if later on the argument for the lack of warrants is going to be made that much like automobiles, mobile devices as evidence can be easily disposed. The problem with that argument as I see it is that unlike automobiles, mobiles have a higher expectation of privacy.

At this point in time it is unclear if password protecting your device will prevent authorities from accessing it short of them coercing you to into unlocking it. I’m sure that case is coming up. I just hope we don’t have a Rodney King style beating where police force the password out of someone.

Note that just because a device is password protected, it does not mean that it is encrypted — with the exception of some BlackBerry devices. Imagine a future where authorities copy the contents of your device and look through your data using some kind of computer forensics. That’s probably an extreme but if we keep this up we’re surely headed that way. Even then I’d be concerned not because of the contents of my device but due to the incompetence of authorities that might leave my personal information vulnerable.

« »