Michigan Supreme Court Rules Unrestricted Phone Searches Violate Fourth Amendment (reclaimthenet.org) 26
The Michigan Supreme Court has drawn a firm line around digital privacy, ruling that police cannot use overly broad warrants to comb through every corner of a person's phone. From a report: In People v. Carson, the court found [PDF] that warrants for digital devices must include specific limitations, allowing access only to information directly tied to the suspected crime. Michael Carson became the focus of a theft investigation involving money allegedly taken from a neighbor's safe. Authorities secured a warrant to search his phone, but the document placed no boundaries on what could be examined.
It permitted access to all data on the device, including messages, photos, contacts, and documents, without any restriction based on time period or relevance. Investigators collected over a thousand pages of information, much of it unrelated to the accusation. The court ruled that this kind of expansive warrant violates the Fourth Amendment, which requires particularity in describing what police may search and seize.
It permitted access to all data on the device, including messages, photos, contacts, and documents, without any restriction based on time period or relevance. Investigators collected over a thousand pages of information, much of it unrelated to the accusation. The court ruled that this kind of expansive warrant violates the Fourth Amendment, which requires particularity in describing what police may search and seize.
What's to stop them? (Score:5, Interesting)
Re:What's to stop them? (Score:5, Insightful)
This isn't a technology problem, it's a law problem. The law is supposed to stop authorities from searching things outside of the scope of a warrant. The law is also supposed to impose penalties when authorities fail to operate within their legal bounds.
In short, "stopping them" is the entire point of the 4th Amendment.
Re:What's to stop them? (Score:5, Interesting)
I studied this and even wrote a paper on it... There are severe issues with the way searches of digital devices are carried out. Granted, on a phone they're probably less, but because it's so easy to rename "IncriminatingDocument.txt" to "MyVacation.mp4", they have to search every file.
The issue is that any digital device these days has SO MUCH non-responsive information that it's essentially a general warrant. And as GP noted, it would be easy to do parallel construction. Maybe the answer is to have a third party (special master?) do the search, and only provide the responsive material to the police. But there's alway the issue of the equivalent of regulatory capture.
There is no easy solution.
Re:What's to stop them? (Score:5, Interesting)
Once they have access to a device or an account, they have access to all of it.
That is true, but the same is true when they have access to search a home for X, for example a search for a certain gun. In theory nothing physically stops them searching through everything and looking at items that aren't on the warrant - they got physical access to the whole building.
I'd say it is still a good finding that warrants need to be more specific than to say seize and search all the potential data on a phone, And that they need to specify the type and subject or nature of records they are searching for.
I also would think they should go a step farther and say the warrants for electronic records on an electronic device should only allow extracting the actual records as a copy on site, and not anyone's personal communications device itself . Just like if you got a warrant to search a house -- you don't get to seize the whole house and return what you don't need later.
Due to the unreasonable hardship that seizing someone's telephone causes --- presuming the subjects owning the devices will provide access to take the records, unless obviously the physical state of the device's exterior or components are expected to contain important relevant evidence. The pulling of a copy of records off the device should be something required to be done on site and within a reasonable length of time. Just like the execution of a search warrant does not generally allow cordoning off a home and locking the owner out for an extended period of time.
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Re:What's to stop them? (Score:4, Interesting)
Actually, there is jurisprudence on this. In a physical warrant, you cannot search for material that is non-responsive.
An example I used in a term paper in law school* is two accountants, one who is old fashioned and only uses paper, the other is fully digital. Accountant 1 has kiddie porn on a videotape labeled "Vacation 2014". Accountant 2 has kiddie porn in a file called "My Vacation 2014.mp4".
Both are served with warrants for tax fraud. The search of Accountant 1's premises cannot examine the videotape, as it is clearly non-responsive to the warrant. The search of Accountant 2's computer finds the illegal material in the MP4 under the "plain sight" doctrine.
It is obvious that the law needs to evolve to address this sort of issue.
* Disclaimer, I am not a lawyer. I am not licensed to dispense legal advice. Should you need legal advice, please consult an attorney licensed in your jurisdiction.
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Why would the police bother seizing vacation videos when looking for tax records?
Because they would bother. The real problem here is the Plain view doctrine may lead to an unjust result if applied to digital data. Because once you are in somebody's system with a ticket that says to look for accounting files All files may have to be analyzed to a certain degree - and as a result, even the respondent's most sensitive files completely unrelated to the subject matter of the search can be in plain view
Re:What's to stop them? (Score:4, Interesting)
but parallel construction is always a possibility
It's more than a "possibility".
I remember an interview by a reporter who was arrested because the FBI wanted his sources. The fed offered him their phone back so they could call their attorney. When they unlocked it to call their attorney, the fed yanked it from their hand disabled sleep mode and then gave it to forensics to download all the data.
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Theoretically this could result in the practice known as a "Taint Team" or "Filter Team" to avoid the "taint" [wikipedia.org]. This party would not be free to testify but would have the job of performing the search that the warrant asked for. They would theoretically not be allowed to disclose anything they see.
I say theoretically because, well, we can see how this could be abused. And it seems like it would be a pretty awful job to find crimes on someone's device, particularly if those crimes are gruesome or sexual in
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If they are part of the chain of custody of the evidence, would they not be compelled to testify if called by the defense? I am not a lawyer, but I would think if they could not testify regarding their collection of the evidence, then the evidence would be inadmissible.
Any Unrestricted Searches Violate 4th Amendment (Score:5, Informative)
Any sort of unrestricted search violates the fourth amendment, it doesn't matter what is being searched.
"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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Re: Any Unrestricted Searches Violate 4th Amendmen (Score:2)
Define unrestricted.
It's quite a stretch to read particular person, place, and thing as meaning individual directories on a computer or smartphone.
It's like restricting warrants to individual rooms in a home, a no-go, but in some circumstances I can see that making sense. Can't search the other duplex unit. Or you can search their phone, but you can't log into their bank app and download statements.
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Or the case goes up the chain to the supreme court where it gets rubber stamped with a 6/3 ruling.
aclu is not what it was (Score:3, Informative)
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Institute for Justice is doing the work the ACLU once did.
Had never heard of them; per Wikipedia [wikipedia.org], they seem to be focused on a subset of issues important to think tanks.
It does not look like they are doing the same work as the ACLU.
Self-incriminating evidence .. (Score:4, Insightful)
.. is now portable. I wish digital devices would support dual passcodes. The primary passcode grants full access. The second wipes the device. People have the right to factory reset their devices at will. Destruction of evidence cannot be proven if there is none.
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Another name for this: Blanket Search Warrant (Score:2)
"The Michigan Supreme Court has drawn a firm line around digital privacy, ruling that police cannot use overly broad warrants to comb through every corner of a person’s phone."
Maybe because of this definition:
https://www.law.cornell.edu/wex/blanket_search_warrant
Doesn't matter anymore. (Score:3)
It has recently become clear that there are no real penalties for government overreach, not at any level, and constitution be damned. Whatever the questionable act, the answer is, "Do it anyway and ignore the courts until they go away." Which they will. The supreme courts have dissolved into an ineffectual, untrustworthy mess.
American personal protections, safeguards, and freedoms were generally believed to be strong, but were always at risk. Now that they've been tested, they've been revealed to be paper thin at best, and sometimes fictional.