23 April, 2011

The Fourth Amendment–Hanging By A Thread

This was a bad week for those that believe in the Constitution and Constitutional limits on power.

Have you seen one of these ever before?

You likely have, if you’ve ever brought your cell phone in for service, and they’ve downloaded your data to a new phone.

Well, it’s not just for cell phone companies. The police are using them now too. But not to help you download the information to a new phone.

No, the Michigan police are looking for incriminating evidence (of what?) on your phone. They pull you over for a traffic violation and ask to see your cell phone. Then they hook this up, grab the data and troll through it. The ACLU is on top of this, and for once I agree with them.

The Michigan State Police have a high-tech mobile forensics device that can be used to extract information from cell phones belonging to motorists stopped for minor traffic violations. The American Civil Liberties Union (ACLU) of Michigan last Wednesday demanded that state officials stop stonewalling freedom of information requests for information on the program.

ACLU learned that the police had acquired the cell phone scanning devices and in August 2008 filed an official request for records on the program, including logs of how the devices were used. The state police responded by saying they would provide the information only in return for a payment of $544,680. The ACLU found the charge outrageous.

"Law enforcement officers are known, on occasion, to encourage citizens to cooperate if they have nothing to hide," ACLU staff attorney Mark P. Fancher wrote. "No less should be expected of law enforcement, and the Michigan State Police should be willing to assuage concerns that these powerful extraction devices are being used illegally by honoring our requests for cooperation and disclosure."

Of course, this is a clear Fourth Amendment violation. Remember, the Fourth Amendment? I know President Barack Obama (D-USA) doesn’t. He didn’t score very well there. So, as a reminder:

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.

Pretty crystal clear. The good news is that they can’t just reach in and grab your cell phone from you. They have to ask you. And the answer is “no”.

But asking to search a car is one thing.  The cop is looking for weed seeds, roaches in the ashtray, rolling papers, etc. – the typical stoner accoutrement.  No visual, no further discussion.  But what if he makes a back-up of your cell phone?  What could they be looking for, and how will they use it?  It seems like the purest of fishing expeditions and in blatant violation of your 4th Amendment rights against unreasonable search and seizure.

Ah, but it’s only against your S&S rights if you claim those rights.  If the cop asks nicely to make a back up of your cell phone and you agree, you have waived your rights.

The author of the previous article worries about wireless versions, that can grab data without your permission. That is a concern, but less of one, because you should be able to control what your phone broadcasts, unless phone manufacturers start enabling some back door access on this sort of thing.

Remember, though, that’s exactly what the government wants them to do.

Be afraid. Be very afraid.

But just say no.

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