Sunday, March 11, 2012

Right Against Self Incrimination is Becoming a Misnomer in Information Superhighway

There is a lot of hue and cry to a controversial the U.S. Court of Appeals for the 7th Circuit ruling  on February 29th,which says it is now legal for police to search cell phones without a warrant. Due to that the expanding conflict between constitutional rights and technological advances has taken another turn. The United States of America v. Abel Flores-Lopez arises from the original Indiana case involving Mr. Flores-Lopez, who was arrested for allegedly selling methamphetamine. Flores-Lopez was reportedly arrested during a sting operation. Police then searched his phone for numbers. Those numbers were later linked to a drug dealing ring. He was subsequently convicted and sentenced to 10 years in prison. Police never had a warrant or his permission to search the phone. Flores-Lopez appealed, claiming his 4th amendment rights were violated. The 7th circuit U.S Court of Appeal turned down his request and sided with the officers.

The court said that the possible invasion of privacy from doing so was slight enough that it would not violate Fourth Amendment rights against unreasonable search and seizure. The presiding judge determined that since police officers can search a diary for information such as addresses and phone numbers, they also have the right to search cellphones for pertinent information.

This "lack of severity" was due to the fact that the search revealed only the telephone number of the arrestee's seized cellphone. "If police are entitled to open a pocket diary to copy the owner's address, they should be entitled to turn on a cell phone to learn its number," Judge Richard Posner wrote for the three-judge panel. "If allowed to leaf through a pocket address book, as they are...they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone."

Extrapolating on this cell phone-equals-diary analogy, the judge further contended that both were "containers," as "any object capable of holding another object that can contain anything else, including data, is a container...And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don't suspect that the container holds a weapon or contraband, and thus without any justification specific to that container...the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched."

Thus, the court ruled that a search "incident to the arrest" of someone does not violate that person's Fourth Amendment rights. Yet the Fourth Amendment itself states that "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."

How has this apparent contradiction been adjudicated? Two Supreme Court rulings regarding "search-incident" doctrine, based on the need for officers to quickly determine if containers associated with an arrestee contain evidence of the offense itself, or anything that might endanger the safety of police officers and others, have been somewhat contradictory. In United States v. Robinson (1973), a police officer stopped a car based on reliable information that Mr. Robinson's driver's license had been revoked. After being arrested on that charge, Robinson was searched and a crumpled cigarette package containing heroine was found. The Court ruled "in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the 4th Amendment, but is also a reasonable search under that Amendment."

Yet in Arizona v. Gant (2009), Rodney J. Gant, was also arrested for driving with a suspended license, but was already walking away from his vehicle when police detained him. After securing Gant and other suspects in patrol cars, police searched his vehicle, where they found narcotics and a weapon. In that case, the Court ruled that police are not allowed to search an arrestee's car after the arrestee had been handcuffed and there was no realistic possibility that he could gain access to any evidence or weapons in his vehicle.

Flores-Lopez contended that the latter case was applicable because, when narcotics officers searched his cellphone, it was safe in police custody, therefore requiring a warrant to conduct additional searches.

The 7th Circuit Court disallowed the argument, noting that Gant involved the search of a vehicle, and further noting that it was reasonable for investigators to believe that the number of the cellphone in the defendant's possession could be used as evidence to link him to other conspirators in the drug-trafficking operation under investigation. With respect to the evidence-preservation and officer-safety rationales contained in Robinson, the Court contended that the "conceivability" that co-conspirators could initiate a remote wipe of the contents of the defendant's cellphone (evidence preservation) and the availability of stun guns shaped like cell phones (officer safety) made a warrantless search "reasonable," even if the possibility of a remote wipe was not "probable."


The unresolved issue? Though discussed by the court, it declined to decide what facts would be required to conduct a warrantless search more extensive than a search for the cell phone's number. "We need not consider what level of risk to personal safety or to the preservation of evidence would be necessary to justify a more extensive search of a cell phone without a warrant, especially when we factor in the burden on the police of having to traipse about with Faraday bags or mirror-copying technology and having to be instructed in the use of these methods for preventing remote wiping or rendering it ineffectual," wrote Posner–who then cut to the heart of the issue. "We can certainly imagine justifications for a more extensive search," he added.

Given contradictory rulings in this arena, including a California State Supreme Court ruling allowing law enforcement officers to go through any content on a suspect's cell phone, and an Ohio State Supreme Court ruling that such searches violate the Fourth Amendment, it seems likely that the Supreme Court will have to clarify such justifications.

As of now, both sides of the issue were framed by their respective proponents in the law enforcement community. Former Dallas FBI Agent Danny Defenbaugh defended the ruling, claiming it gives law enforcement officials an advantage in fighting crime. "I think not only will it help them, but it could be life saving," he said. Paul Coggins, former U.S. Attorney for the Northern District of Texas, was far less sanguine. "Does (the ruling) mean officers now have the right to search through your phone, search through your search history, your photographs, your e-mails and the rest, because it could all be wiped clean?" he asked.

And lest anyone think encrypted cell phone passwords are the solution, because requiring one to divulge one's password would violate the Fifth Amendment's protection against self-incrimination, think again: in January, a Colorado judge ordered a woman to decrypt her own computer so prosecutors could use the files in it against her in a criminal case. That case will likely end up in front of the U.S. Supreme Court as well–which recently ruled 9-0 that affixing a GPS device to a vehicle for 28 days constitutes a search requiring a warrant. But even in that case, they left open the question of whether GPS monitoring for shorter periods of time would require a warrant.

Technology is rapidly eliminating anything resembling a genuine the right to privacy. Sadly, in a nation of people enthralled with posting the details of their lives on Internet websites, or loading substantial portions of those lives into cellphone and other portable devices, much of that elimination has been voluntary. Law enforcement officials, more often than not, are more than willing to exploit that enthusiasm. It behooves the courts to constitutionally temper that enthusiasm.

The case gave the court an occasion to examine just how far police can go when it comes to searching electronic gadgets.

"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," Judge Richard Posner wrote for the three-judge panel.

He raised the example of the iCam, which allows someone to use a phone to connect to a home-computer web camera, enabling someone to search a house interior remotely.

"At the touch of a button, a cell phone search becomes a house search," he wrote.

Prosecutors argued that in an age when people can wipe their cell phones clean remotely, officers are under pressure to obtain data before it is destroyed.

The court acknowledged that the actual risk that one of the suspects would have been able to destroy the phone's contents was minimal in this case. But so was the invasion of privacy, limited to telephone numbers.

The court left the question of just how far police can go in searching a phone's contents for another day.

Moreover, the remedy does not represent an over-correction towards privacy since law enforcement would still have the opportunity to obtain a warrant to search Facebook or any other social networking site without having to directly seize a suspect's phone.

These changes would be consistent with the widely supported theory that the Bill of Rights, collectively, was added to the Constitution "to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance."Blanket government surveillance of speech on Facebook not only presents privacy concerns of a different scale, but it squarely conflicts with Justice Brandeis' belief in the "freedom to think as you will and to speak as you think." Granted, Justice Brandeis' statement that "[o]nly an emergency can justify repression" is consistent with rules allowing post-arrest searches to ensure officer safety or protect other citizens from imminent danger. But the cell phone searches sometimes done in the name of "emergency" or "safety," but rather, to conduct fishing expeditions for potentially useful evidence. The marginal benefit of such epic searches is not offset by considerations of the hazards of "discouraging thought" and stifling "public discussion."

Thus, the combination of current criminal procedure doctrine with Facebook's extensive database and emerging cloning technology easily provides an arresting officer with a profile database that rivals those found in once-hyperbolic Orwellian science fiction.

This is a classic overbreadth problem—except that there is no overbreadth doctrine in Fourth Amendment jurisprudence.

Without an immediate correction, the result of the status quo is clear: We must assume that any speech on the internet will eventually be copied and cataloged by the government. And in a democracy such as ours, the unwarranted law enforcement license to "listen in" to every conversation in our 21st century town square should be seen as a grave threat to democracy and the ideals of self-governance.

The government's ease in justifying the search of an arrestee's Facebook account and its ability to maintain a cloned copy of this speech—which not only could date back over a decade, but also could create an archive of his friends' speech—create not just a chilling effect, but perhaps a freezing effect on speech. From exposing anonymous identities to revealing associational ties, a post-arrest Facebook search not only deters an arrestee's core political speech, but the single search ices the communication and consumption of many persons.

But Facebook, I submit, presents additional concerns that are unique to the popularity of the social network. Unlike diaries, laptops, blogs, or even Twitter, its structure means that government access to one person's private account essentially constitutes government access to the private accounts of the user's friends, which could number in the thousands. Never before has any technological innovation meant that searching one person's gadget was the equivalent to searching over a thousand's person gadgets. While a personal diary might reveal personal information about another, it's unlikely that any person's diary is the equivalent of carrying around every friend's diary, as well.

Even though Facebook's policies ban Facebook users from providing false information or creating an account in another person's name, government agencies regularly create them in hopes that suspects (or suspects' friends) will approve the request and instantly allow them to access private information, map social networks, and begin the process of luring them into incriminating revelations. In one section on working undercover on social networking sites, the document poses but does not answer the question: "[i]f agents violate terms of service, is that 'otherwise illegal activity'?" No caselaw provides a clear answer. However, given the general legality of undercover operations in which officers violate crimes in order to prevent crimes, there seems to be no legal barrier to these fake profile tactics and ultimately diluting the main object of right to self incrimination.


Prof. (Dr.) Tabrez Ahmad,
Program Director 
College of Law, Alliance University,
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