Warrantless search of cell phones could impact journalists, Occupy movement
(MintPress) – A federal appeals court took a swipe at the fourth amendment on Wednesday after ruling that police can now search a cell phone for its number without a warrant. The ruling calls into question the extent to which cell phones, which routinely act as computers now, can be searched with the push of a button.
“Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a ‘computer’ or not) can be searched without a warrant,” wrote Judge Richard Posner.
Prior to the ruling, police and government agencies could access cell phone calls logs and text messages by obtaining a subpoena. A search warrant was needed in most cases to confiscate the actual cell phone device if it was not directly linked to a committed crime.
The issue made it to the courts after police officers in Indiana found multiple cell phones at the scene of a drug bust. Using the phones’ numbers, police were able to subpoena the calling histories and draw parallels to the entirety of a drug-selling scheme.
Posner compared the ruling to the legality of police already being allowed to search the contents of a personal diary to find the owner’s address. He wrote that the same law should apply to cell phones as well.
Phones that make use of passwords or encryption software to allow access to the device would still be subjected to the law.
“The police can ask you to unlock your phone — which many people will do. But they almost certainly cannot compel you to unlock your phone without the involvement of a judge,” said Catherine Crump of the American Civil Liberties Union.
The federal ruling is not unprecedented, as California governor Jerry Brown vetoed a bill in 2011 that would have made it illegal for police to conduct warrantless searches of cellphones of those under arrest.
The issue arose in California in 2007 after a man named Gregory Diaz was arrested on a drug-related offense. The officer arresting Diaz searched Diaz’ phone and discovered incriminating text messages.
California law differs from the current federal law in that it goes far beyond searching a phone for its number. In California, police can search a cell phone for any type of data, including photos, web-browsing history, chat logs and past whereabouts if the phone is wired with a tracking feature.
Hanni Fakhoury, staff attorney for the Electronic Frontier Foundation, told CNN that he expects open searches of other electronic devices to follow in suit. He also said that by allowing this type of warrantless cell phone search, police will be more willing to use it in cases where it would not be of any help.
“I think we’ll probably start to see more questionable searches of cell phones in arrests that have nothing to do with cell phones,” Fakhoury said.
Implications for protests, journalists
With 83 percent of American adults owning a cell phone, it’s without question that society in the U.S. is ever more reliant on mobile technology. This could be said even more for the rising protests across the nation and the journalists who cover them.
The use of cell phones to organize protests – particularly within the Occupy movement – has been crucial to the movement’s prominence and success. Cell phones have become such a necessity to the group that the city of San Francisco, in order to prevent further protests, turned off cellular signals in the San Francisco Subway last August.
Fakhoury says this new law has the potential to curb growth of the Occupy movement, as the group has become so interconnected through cell phone and Internet organization.
“California police might decide to arrest you for disturbing the peace, or illegal camping, and then check your phone and see messages coming through from organizers,” Fakhoury said.
For journalists, the ruling could mean losing prior protection of sources and valuable information for a story. Arresting reporters has nearly become common as coverage of the Occupy movement continues. Recently, six reporters were detained in a mass arrest at a January Occupy Oakland event.
Should police officers exercise their new right and search the cell phone information of a reporter, it could give away valuable source information.
“Reporters who are covering protests and other events that attract police attention should be concerned about getting arrested and then having the info they gathered, including info about sources, ending up in police hands,” said California senator Mike Leno.
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