Jerry Brown Vetoes Bill That Would Require a Warrant for Cell Phone Searches

Monday, October 10th, 2011

This is really one of the scarier recent assaults on the Fourth Amendment.

California Gov. Jerry Brown is vetoing legislation requiring police to obtain a court warrant to search the mobile phones of suspects at the time of any arrest.

The Sunday veto means that when police arrest anybody in the Golden State, they may search that person’s mobile phone — which in the digital age likely means the contents of persons’ e-mail, call records, text messages, photos, banking activity, cloud-storage services, and even where the phone has traveled.

Police across the country are given wide latitude to search persons incident to an arrest based on the premise of officer safety. Now the nation’s states are beginning to grapple with the warrantless searches of mobile phones done at the time of an arrest.

Brown’s veto message abdicated responsibility for protecting the rights of Californians and ignored calls from civil liberties groups and this publication to sign the bill — saying only that the issue is too complicated for him to make a decision about. He cites a recent California Supreme Court decision upholding the warrantless searches of people incident to an arrest. In his brief message, he also doesn’t say whether it’s a good idea or not.

Instead, he says the state Supreme Court’s decision is good enough, a decision the U.S. Supreme Court let stand last week.

Last time I posted on this, commenter “Puzzling” made a very good point.

Cell phones are also not simple “containers” to the extent that modern phones show both local data and vastly more data information stored in cloud services, often all integrated together seamlessly to the user. These law enforcement searches are actually retrieving information stored in “containers” elsewhere.

So a traffic infraction can now lead to a search of your email (much of which may be stored on off-site servers, but still downloadable from your cell phone), GPS history, cell phone photos and video, web browsing history, history of phone calls placed and received, text message history, and anything else you do with your cell phone. Troubling, to say the least.

Digg it |  reddit |  del.icio.us |  Fark

68 Responses to “Jerry Brown Vetoes Bill That Would Require a Warrant for Cell Phone Searches”

  1. #1 |  Reformed Republican | 

    If you are pulled, put the phone in your glove box or in your console, then the phone is not on your person.

  2. #2 |  Rob Lyman | 

    I use a dumb phone, so you won’t see much there other than a hundred calls to my wife, but still, what? The purpose of the “search incident to arrest” exception is to find weapons and contraband on the person arrested, so they don’t pull a gun while riding in the back of the squad car. You can do a sweep of the car (or the couch the guy was sitting on), too, to make sure there’s no bombs or guns in there. But how on Earth does searching a cell phone fit into that? I’m really surprised the courts have allowed it.

  3. #3 |  Mad Rocket Scientist | 

    Learn how to wipe your phones memory

  4. #4 |  Rob Lyman | 

    RR, if you’re arrested in your car, they can search the passenger compartment “incident to arrest,” too.

  5. #5 |  Difster | 

    Also, to go along with what RR said, password protect your phone. They can’t compel you to give up the password so that they can search it. They can try but there is no legal basis for it.

    And if you’re going to hide your phone in your car when you get pulled over, be sure to turn it off first. If you tell them you don’t have a phone and they hear it ring, or you get a text message, that could get you in trouble.

    You could and maybe should go so far as to remove the battery and stuff it in the seat cushion or otherwise obscure it.

    It’s a shame we have to go to such measures.

    The thing is, you never know what innocent thing on your phone might get you in trouble. Joking with a friend in email about bombs, discussion about drugs even if you’re not taking them, etc. are all potential hazards. You don’t actually need to have done anything illegal in order to give the police an excuse to make your life a living hell as all readers of this blog know by now.

  6. #6 |  ktc2 | 

    I sense a developing market for cell phone encryption software.

  7. #7 |  Sean L. | 

    And here I had a glimmer of hope when he vetoed a bill which would have allowed California colleges to take race into consideration when accepting applicants. The bill would have overruled a public refferendum against such practice.

  8. #8 |  Darwin | 

    Jerry Brown is following Obama’s path to becoming a Republican.

  9. #9 |  Black Bellamy | 

    @Reformed Republican: They will impound your car and then search the phone under the guise of “inventory”.

    @Difster: They don’t your password. They hook up your phone to a special device and it copies your entire memory and storage. No password required to browse contents afterwards.

  10. #10 |  Black Bellamy | 

    edit: @Difster: They don’t need your password.

  11. #11 |  Difster | 

    I know Rick but it at least keeps the beat cops out of your phone. If they’re going to search my phone, they will at least have to go to great lengths to do it.

    There is always the wipe option as well. Set the wipe and leave it running while you’re being arrested. There won’t be anything they can do then.

  12. #12 |  Rob Lyman | 

    If you’re not a criminal and you’re being arrested for something minor, is it really worth wiping your phone to keep the cops from reading your email? Especially because you’d need to set that as they pull you over; by the time you’re out of the car with your hands on the trunk, reaching into your pocket is going to get a very bad reaction (and with good reason). Great, now you’ve got a wiped phone and verbal warning that your taillight is out.

  13. #13 |  Sailor | 

    One of many reasons my cell phone only makes and receives calls. No text.email.web no nothing.

  14. #14 |  Difster | 

    @Rob Lyman,

    Yes Rob, because if they decide to go after you, they will dig up the most arcane laws to prosecute you and since it’s estimated that we all commit about 3 felonies a day, even if you THINK you’re innocent of anything, you’re probably not (in the eyes of the law). Why risk it?

    If you’ve got your phone backed up, you can restore it when you get home.

  15. #15 |  Difster | 

    @Sailor,

    Don’t think for a second there aren’t ways they can use that against you too if they decide they have a grudge against you.

  16. #16 |  Goober | 

    The scope of these things always creeps. It used to be that a search incidental to arrest was to make sure that you didn’t have weapons on your person when they put you in the car. Then, they made the argument that the car should be searched to make sure no one around the car or the impounding authority is at risk from something in the car. Now, they consider these searches, rather than a safety item, to be great fishing expeditions to try and tack on more possession-type charges to the arrestee. The original intent of all if these things always creeps out of control. Remember when SWAT teams were only for extrememly dangerous situations when officers’ lives were at extreme risk?

  17. #17 |  Rob Lyman | 

    It would surprise me if the average beat cop dragging you away from the protest knew–or cared about–all of the arcane “3 felonies a day” laws (Silvergate’s book was about federal law; state laws tend to be more straightforward and focused on stuff you already know is criminal). Now if the FBI’s arresting you, that’s a different matter, but in that case, you really don’t want that backup copy at home, because they’ll be searching that (heck, they probably did before they arrested you).

  18. #18 |  shg | 

    So it’s clear, this law was enacted to overcome the California’s inane decision in the Gregory Diaz case, analogizing a cellphone to any other sealed container within a vehicle, per NY v. Belton, subject to search pursuant to either the search incident to arrest or exigent circumstances exception to the warrant clause.

    The current law in CA is that the cops can search a cellphone. The law was intended to override the Diaz decision. Brown’s veto leaves the status quo ante, that cellphones in CA are searchable containers.

    In contrast, the Ohio Supreme Court in the Antwaun Smith decision arrived at the opposite conclusion, that a cellphone was hardly a mere close container. Federal circuits are all over the place on the issue, and the US Supreme Court has yet to really screw it all up.

  19. #19 |  Sailor | 

    @Drifster,

    Well I guess they can try and use calls to my parents against me. I’m not worried about that though. If I were doing illegal things I wouldn’t be talking about it on my cell phone.

  20. #20 |  Sailor | 

    Difster, sorry. Or did you mean that my lack of a smart phone would be something to use against me?

  21. #21 |  Maggie McNeill | 

    Whenever I see stories like this I am glad that I subscribe to the “if it ain’t broke, don’t fix it” school of technology usage; my cell phone is just a phone. That’s it. It’s not a camera, computer, recorder, GPS transponder or anything else, and I don’t even store more than a few numbers in it. They’d be very bored and disappointed if they searched it.

  22. #22 |  C. S. P. Schofield | 

    Darwin,

    Where on earth did you ever get the impression that the Democrats actually give a good goddamn about civil rights? You aren’t naive enough to have believed their PR, are you? The Democrats are the party of the Old South and the KKK, the party of “we know better, so we’re taking your choices away” policy on food, the primary party of all buttinskiism that isn’t Christian Missionary claptrap.

    Jerry Brown is being Jerry Brown; a conscience free elitist twit (non-Christian edition) who thinks he was put on earth to tell lesser mortals what to do. He wants the cops to be able to search YOUR cell phone because YOU might be doing something bad, like smuggling cigarettes. That the cops might search HIS cell phone would never occur to him. He, after all, is one of the Select.

    *spit*

  23. #23 |  Just Plain Brian | 

    All these “I’m not worried, I don’t have a smart phone” comments seem to me like saying, “I’m not concerned about puppycide, since I don’t have a dog. Or a house. And they can’t pull me over, I don’t have a car. And I’m not worried about them going to my employer, I don’t have a job! Haha, joke is on them!”

  24. #24 |  Just Plain Brian | 

    “First they came for the smart phone owners, but I didn’t speak up because I was a hipster douche with a feature phone…”

  25. #25 |  Sailor | 

    Just Plain Brian. Well that is not what I meant to communicate. I only meant to say I’m glad I don’t own a smart phone and don’t live in cali. Just like if they were killing puppies in Cali I would be glad to not own a puppy and not live there. I don’t think this says anything about my concerns for other people or my thoughts on privacy.

  26. #26 |  Just Plain Brian | 

    Fair enough, Sailor, nothing personal. But I refuse to become a Luddite to avoid tyranny.

  27. #27 |  Deoxy | 

    As several commenters has said, I understood “search incident to arrest” to be about officer (and possibly bystander) safety – check for guns, etc.

    Anything beyond that would not be “reasonable” would it? I simply don’t see how any justifications yet given for search incident to arrest would justify searching any electronic equipment.

  28. #28 |  Sailor | 

    “But I refuse to become a Luddite to avoid tyranny.”

    Heh, I just don’t want to pay more than 25 dollars a month for cell service. I’m a miser not a Luddite!

  29. #29 |  Difster | 

    @Sailor,

    I meant that your utterly basic cell phone might actually raise their suspicions and send them on a fishing expedition. They could postulate that it’s just a burner phone and you’re trying not to be found, etc.

  30. #30 |  goober1223 | 

    In that way, you’re phone is more like a key than a repository. If they believe that there may incriminating evidence in a file drawer the police do not have a right to open the file drawer, even if the key is right there to open it. The must get a warrant first.

  31. #31 |  Dr. Q | 

    But Radley, if the cops can’t search your cell phone, how will they make sure it’s not one of those “cell phone guns” I’ve been hearing so much about?

  32. #32 |  Sailor | 

    Why is anyone still living in California? Take your guns and smartphones and get out.

  33. #33 |  Difster | 

    Some of us are stuck here (though I am temporarily living in Mexico) due to considerations other than liberty.

  34. #34 |  Dave Krueger | 

    So a traffic infraction can now lead to a search of your email…

    A few years from now you will look back on this and say, “At least back then they needed a traffic infraction.”

  35. #35 |  Boyd Durkin | 

    I do not know of a phone that stores all data as encrypted files, but that would solve the problem and make someone some money.

    Of course, a phone that stores all data remotely would be easier. But we’re at the mercy of billion dollar phone companies that roll over (not judging here) when cops ask for info.

  36. #36 |  BSK | 

    For things such as emails, texts, etc., in which other parties are involved in the creation of the material, what are there rights in the matter? For instance, if Jane sends Joe an email and Joe gets arrested and has his cell phone seized and searched, isn’t Jane’s privacy being violated? What if Joe uses his phone to access secured or classified work material? Do the cops have the right to search these?

  37. #37 |  JimBob | 

    Jerry Brown was also kind enough to sign a bill that prohibits open carry of unloaded handguns in California. Now you can go to jail for up to 6 months, plus face a $1000 fine for openly carrying an UNLOADED handgun in public.

    Anybody know if open carry of rifles is still legal in California? Neal Stephenson made an interesting point about openly carrying rifles in Cryptonomicon– the cypherpunk-type folks openly carried big-ass rifles and semi-autos at their gatherings, on the principle that the second amendment wasn’t about protecting oneself from petty crime (which is about the extent of a handgun’s usefulness), but from the government. I wish I had the exact text.

  38. #38 |  Sean L. | 

    “a phone that stores all data remotely would be easier.”

    That makes it worse. Data in 3rd party hands aren’t subject to 4th Amendment protection.

    Not saying I agree… just how things are.

    “in which other parties are involved in the creation of the material, what are there rights in the matter?”

    Read the PATRIOT Act. You’re a suspect just because you KNOW a suspect.

  39. #39 |  Rojo | 

    On a related note… Writing today about Jacob Applebaum, whom the government has identified as a Wikileaks spokesman, Greenwald notes: “The Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and that “no Warrants shall issue, but upon probable cause.” In light of everything the U.S. Government has been able to seize regarding Appelbaum without a single search warrant — laptops, cellphones, cameras, memory sticks, Twitter activity, electronic goods of his friends, interrogation via forcible detention, and now lists of his email correspondents and other information showing his email activity — is there any rational conclusion other than to view that Amendment as an absurd joke?”

  40. #40 |  Rojo | 

    D’oh! Scrolling down I see that Radley has already linked to that very same article.

  41. #41 |  Charlie O | 

    Good reason to have a phone that is just a phone. My phone has a phonebook and that’s it. Oh and well, a photo of my ex’s tits.

  42. #42 |  GT | 

    Here’s a tip to the swaggering retards who enforce this shit: their personal details are all stored in ‘searchable containers’ that are WAY less secure than my cell phone (let’s just say that my phone is way more secure than Creech AFB’s drone servers, and leave it at that).

    If they keep escalating this shit, they need to get ready for their home address to be Open Source: the average cop has no idea how to secure his own data, and entrusts VAST amounts of personal detail to his employers… who store that data on the infotech equivalent of Post-It notes.

  43. #43 |  el toro | 

    Are we to expect that next the police can search your house if they find the keys in your pocket? Like others have mentioned, the phone is, for the most part, a client to data stored elsewhere – the phone, especially a smart phone, is much like a key that unlocks a front door. This is very disturbing.

  44. #44 |  Stormy Dragon | 

    @Black:

    They don’t [need] your password. They hook up your phone to a special device and it copies your entire memory and storage. No password required to browse contents afterwards.

    Of course, this raises the question of why cell phone manufacturers are making devices with such easily bypassable security?

  45. #45 |  discarted | 

    So are laptops and digital cameras next? Because as of right now cops can’t search your camera without a warrant or court order.

  46. #46 |  BamBam | 

    laws = ink on paper. they have no power as it is an inanimate object. laws mean nothing, and only act as a deterrent (and more often a control) on people that gauge their value as a person in terms of how well they “obey” laws — unless you’re a government employee who seem to gauge their value based on how well they enforce laws regardless of the morality of said laws.

  47. #47 |  BamBam | 

    more CA gov madness
    http://www.msnbc.msn.com/id/44843817/ns/us_news-life/#.TpNlabJmP3M

  48. #48 |  Steamed McQueen | 

    California is a lost cause. How’s this for an idea?

    Since China pretty much owns the U.S. now, why don’t we just give them California and call it even? The Chinese can build a wall between Calis eastern border and the remaining United States.

    It’s not as if China doesn’t have previous experience building walls…

    Note to self: Add California and Texas to the ever-increasing list of states to stay out of.

  49. #49 |  CyniCAl | 

    Self-destructing cell phones is the way to go. Phones are so damn cheap now anyway, if you got a free phone that could self-destruct in a way to render it useless, you could always get another one.

  50. #50 |  Maggie McNeill | 

    #23: Oh, dear, Brian, that’s not what I meant at all! I don’t use any recreational drugs, either, nor do I smoke, yet I’m strongly against criminalization of those substances. All I meant was I’m glad I needn’t add this one to my list of paranoias. My list of outrages, on the other hand, keeps growing by the day. :-(

  51. #51 |  Phil D | 

    I don’t know how the CA legislature works, but can’t this veto be overridden? The bill passed the Assembly 70-0 and the Senate 32-4.

  52. #52 |  Steamed McQueen | 

    @#49: Nice idea but that sounds like the sort of thing that would bring a charge of destroying evidence.

  53. #53 |  Nate | 

    So here’s a product idea. A small smart phone, fire safe-type deposit box to keep in your car/house. With a small one-way door to slide it in, but not get it out. If the box is in the car, and the key at home it’s fairly inaccessible. If it’s a false alarm, your data is still intact for when you go home and get the key. If not, you can wipe remote. (I know police are starting to store confiscated phones in Faraday cages to prevent this now). A better model would have the box installed to the body of the car to make confiscation even more difficult. It’d be useful against any would be thief, not just police.

  54. #54 |  GreginOz | 

    I read a while ago about Egypt making Blackberry create a “backdoor” so that the Sickurity Forces could do the same thing, just prior to the so-called revolution. Does this mean that US citizens are under the same appariti as when Egypt was run by MuBARAK?

    “A republic, if you can keep it” How prophetic of Mr Franklin…

  55. #55 |  TC | 

    And to think I was actually thinking of re-celling.

    Fark dat chit!

    I’m land lining it and will stick to such till I need a burner. :)

  56. #56 |  Coyote | 

    They should be able to override it with two-thirds in both houses.

  57. #57 |  Coyote | 

    Actually, I just read there hasn’t been a veto override in California since 1979. Wow.

  58. #58 |  JimBob | 

    @44 Stormy:

    “Of course, this raises the question of why cell phone manufacturers are making devices with such easily bypassable security?”

    This is a difficult question to answer, but the basic response is “feature, not bug”.

    The ability to act as a USB mass storage device is nearly a REQUIRED feature these days. Nobody encrypts their SD cards or internal memory, and the demand for it isn’t huge (imagine having to re-enter a PGP-style passphrase using an on-screen keyboard every couple of hours).

    There are other useful features make it easy to access data on the phone– most Android phones support USB debugging (don’t know which phones have it turned on by default), which gives a smart user or program access to a LOT of nifty information that’s useful for programmers and attackers alike. I know that my phone has debugging access enabled; I use it as a test device for some research software I’m writing. A smart cop could use that to my disadvantage, I suppose.

  59. #59 |  Rune | 

    ♫♪California! Über Alles!
    ♪♫California! Über Alles!
    ♫♪Über Alles! California!
    ♪♫Über Alles! California!

  60. #60 |  Rune | 

    dognabbit, messed up the html in link above

  61. #61 |  Rob Lyman | 

    As a legal matter, I think the CA courts got it wrong. As a matter of principle, I think cops shouldn’t search phones without warrants unless there’s some very compelling reason why they can’t wait. And as a lawyer, I would claim privilege for a lot of my emails.

    But as a matter of practical reality, I don’t see why I would especially care. My personal emails are boring and mostly about what my kids did today or what we’re going to do for dinner. All these elaborate security schemes, phone-wiping plans, etc.: why?

  62. #62 |  albatross | 

    So, is there any good explanation for why Gov. Moonbeam decided to veto this? Did the local cops/prosecutors offer to post that video of him and the sixteen year old hooker in the governor’s mansion to Youtube?

  63. #63 |  Yizmo Gizmo | 

    “But as a matter of practical reality, I don’t see why I would especially care. My personal emails are boring and mostly about what my kids did today or what we’re going to do for dinner. All these elaborate security schemes, phone-wiping plans, etc.: why?”

    Come on, spying, whether Murdoch- or govt-derived, is a big voyeuristic jerkoff.
    Imagine the thrill, for petty tyrants, of being to be able to play God and
    browse through everyone’s personal photos, videos and e-mails with impunity,
    under the guise of fighting crime.

  64. #64 |  albatross | 

    Consider how valuable all that stored-forever information is when, years later, you are involved in some annoying protest, or are running for office, or have insider access to some information some powerful person might like to have.

    Why care if you dont have blackmail material on your phone? For the same reason you should care if I manage to change a million votes in next year’s oresidential election, but leave yours alone–that power subverts the institutions you count on for this society to keep working. Give the local cops, the FBI, the NSA, etc. blackmail material on enough local politicians, journalists, activists, gadflies, bureaucrats, etc., and you will find that you have given them unlimited power to avoid accountability for anything they do, to force any politician to back down in a conflict with them, to silence any critic, to guarantee favorable local media coverage.

  65. #65 |  Steve Verdon | 

    Jerry Brown is following Obama’s path to becoming a Republican.

    Darwin, et. al.

    If you guys think Obama, Brown and Democrats were in some way better than Republicans and going to protect your rights….suckers.

    But keep voting anyways, it is clearly working.

    Sailor,

    Difster, sorry. Or did you mean that my lack of a smart phone would be something to use against me?

    Duh, of course. If you don’t have e-mail on your phone or text messages that is a sign that you are a smart criminal. See, even the lack of evidence is evidence.

    Why is anyone still living in California? Take your guns and smartphones and get out.

    Because California is on the leading edge, what we do the rest of the country soon follows. So, it will be happening in your area soon enough.

    Regarding this,

    “a phone that stores all data remotely would be easier.”

    That makes it worse. Data in 3rd party hands aren’t subject to 4th Amendment protection.

    And chances are they’d still search it on your phone since your phone would allow them access.

    albatross,

    Why care if you dont have blackmail material on your phone? For the same reason you should care if I manage to change a million votes in next year’s oresidential election, but leave yours alone–that power subverts the institutions you count on for this society to keep working. Give the local cops, the FBI, the NSA, etc. blackmail material on enough local politicians, journalists, activists, gadflies, bureaucrats, etc., and you will find that you have given them unlimited power to avoid accountability for anything they do, to force any politician to back down in a conflict with them, to silence any critic, to guarantee favorable local media coverage.

    Oh stop being a poopy head. If they aren’t doing anything wrong, nothing bad will ever happen to them. Only bad people have bad things happen to them.

    Now, who wants a magic pony?

  66. #66 |  discarted | 

    I’m curious to know how this effects attorney-client privilege. Personally, I use my phone regularly to communicate with my lawyer. Especially in the last two weeks since a deadline is approaching.

    So is attorney-client privilege non-existent if we use our smart phones to communicate with our lawyers?

  67. #67 |  Rob Lyman | 

    No, you retain privilege as long as you’re taking reasonable steps to maintain confidentiality. Having your phone taken from you forcibly and searched without your consent won’t destroy privilege, but on the other hand, giving it up voluntarily might, depending on the circumstances.

  68. #68 |  California Gov. Jerry Brown - 10/14/2011 | Douche of the Day | 

    [...] Behaving Badly Warrant? We don't need no steenkin' warrants! California Gov. Jerry Brown is vetoing legislation requiring police to obtain a court warrant to [...]

Leave a Reply