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 |  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.

  2. #2 |  Steamed McQueen | 

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

  3. #3 |  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.

  4. #4 |  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…

  5. #5 |  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. :)

  6. #6 |  Coyote | 

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

  7. #7 |  Coyote | 

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

  8. #8 |  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.

  9. #9 |  Rune | 

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

  10. #10 |  Rune | 

    dognabbit, messed up the html in link above

  11. #11 |  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?

  12. #12 |  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?

  13. #13 |  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.

  14. #14 |  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.

  15. #15 |  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?

  16. #16 |  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?

  17. #17 |  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.

  18. #18 |  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 […]