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Judge: Cops Can Impersonate Owner Of Seized Cell Phones

Soulskill posted about 2 years ago | from the and-not-just-checking-the-weather-16-times-a-day dept.

Cellphones 213

Aryden writes with news of a recent court decision in which a judge ruled it was acceptable for police to impersonate the owner of a cell phone they had seized, in order to extract information from the owner's friends. The ruling stems from an incident in 2009 when police officers seized the iPhone of a suspected drug dealer, then used text messages to set up a meeting with another person seeking drugs. "'There is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person's iPhone,' Penoyar wrote in his decision. He pointed to a 1990 case in which the police seized a suspected drug dealer's pager as an example. The officers observed which phone numbers appeared on the pager, called those numbers back, and arranged fake drug purchases with the people on the other end of the line. A federal appeals court held that the pager owner's Fourth Amendment rights against unreasonable search and seizure were not violated because the pager is 'nothing more than a contemporary receptacle for telephone numbers,' akin to an address book. The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can't be sure that the pager will be in the hands of its owner. Judge Penoyar said that the same reasoning applies to text messages sent to an iPhone. While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police."

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213 comments

Not shocking. (4, Insightful)

masternerdguy (2468142) | about 2 years ago | (#40717625)

I always assumed they would do this.

Can they? (2)

Idbar (1034346) | about 2 years ago | (#40717739)

I'd love to hear them impersonating my accent... if it's a voice call. I'd like to know if they can use the same slang if they try to text people (which... I don't do much).

Re:Can they? (0)

Anonymous Coward | about 2 years ago | (#40718381)

For the text messages, they could look at the previous outgoing messages and get an idea of what types of slang the user sends in his or her messages.

Re:Not shocking. (-1)

Anonymous Coward | about 2 years ago | (#40717831)

At least with entrapment there wasn't an issue with google nexus 7's defective screens. The left side creaks and may evens shatter because it is a millimeter above the bevel. Google really dropped the ball on that one.

Hit me (2)

what2123 (1116571) | about 2 years ago | (#40717629)

I don't know much about entrapment but from what I *think* I know about it, I would say this sound entirely like that. Even if the "friend" came asking for the drugs, isn't this still a type of entrapment? Please kick me if I'm completely off on this.

Re:Hit me (5, Insightful)

masternerdguy (2468142) | about 2 years ago | (#40717661)

Entrapment is the FBI forcing you to buy drugs. It is not entrapment if the FBI catches you attempting to buy drugs. This is why sting operations work. In a sting someone pretends to be offering %illegalstuff% and they wait for customers, who are then arrested. The logic is that the person arrested was attempting to commit a crime and would have done so even without FBI intervention.

Re:Hit me (4, Interesting)

sl4shd0rk (755837) | about 2 years ago | (#40717833)

Entrapment is the FBI forcing you to buy drugs.

No, that's the old definition. I believe that's called SOP now.
http://www.talkleft.com/story/2009/5/15/121647/790 [talkleft.com]

Re:Hit me (3, Insightful)

jklovanc (1603149) | about 2 years ago | (#40719243)

There is a big difference between the actions of one “rogue agent” and SOP for the DEA. Panting an entire organization with the actions of a few in invalid in any circumstances.

Re:Hit me (4, Interesting)

NeutronCowboy (896098) | about 2 years ago | (#40717921)

The way I look at it, it's always been done: except in the past, they turned the actual guy, and he went from being a drug dealer to impersonating a drug dealer. Is it really that different that the person at the other end of the cell phone is now an actual cop impersonating a drug dealer? At the core, the drug buyer has been and is now dealing with a fraud - somebody who says they're a drug dealer, but isn't.

I really don't see how that is some new concept.

Re:Hit me (1)

crakbone (860662) | about 2 years ago | (#40718263)

It's a new concept with the inclusion of passwords. By password locking a cellphone somebody knowing your locking it is not under the believe your phone could be stolen like a pager which would not be secured. There are some fundamental differences in the technology that makes it still debatable that this is legal.

Re:Hit me (0)

Anonymous Coward | about 2 years ago | (#40718433)

No, it's not. What's the difference between "the actual guy" and his cell phone? Either way *the guilty party* is attempting to commit a crime. The agent (whether a cop or "the actual guy" who then becomes an agent of the state) is merely allowing you to hang yourself with your own rope.

Re:Hit me (3, Insightful)

Anonymous Coward | about 2 years ago | (#40718017)

In criminal law, entrapment is conduct by a law enforcement agent inducing (not forcing) a person to commit an offense that the person would otherwise have been unlikely to commit. So maybe not entrapment in this case, as the suspects might have bought the drugs anyway.
However, false flag operations clearly fit the description of entrapment.
http://chasvoice.blogspot.com/2012/05/fbi-again-foils-their-own-false-flag.html
http://aluminumchristmastree.blogspot.com/2012/04/breaking-news-fbi-false-flag-bombing.html
http://www.dailypaul.com/234963/fbi-again-foils-their-own-false-flag-terror-plot
http://www.infowars.com/fbi-nabs-five-mastermind-geniuses-after-teaching-them-how-to-blow-up-a-bridge-in-cleveland/

Re:Hit me (0)

Anonymous Coward | about 2 years ago | (#40718153)

Thank you! For everyone else:

http://thecriminallawyer.tumblr.com/post/19810672629/12-i-was-entrapped

Read this before you start claiming entrapment. Seriously.

Re:Hit me (-1)

Anonymous Coward | about 2 years ago | (#40718159)

Entrapment may not be the correct term, and I don't know what is, but this is still almost certainly illegal. There's a difference between a sting operation and one where the police prompt someone to do something illegal. Ever heard of that show "Bait Car"? That's actually illegal. But nobody does anything about it because they're cops. Who polices the police?

Re:Hit me (5, Informative)

uncqual (836337) | about 2 years ago | (#40718405)

If you think Bait Car is illegal you've got a pretty bizarre and incorrect view of our legal system.

Bait Car simply sets up a situation where someone who wants to steal a car can do so with the bonus that they get cameras, remote kill switch et al with that car. Bait Car is pretty cut and dried -- it's not even close to impersonating a drug dealer which might entice someone to buy drugs that maybe wouldn't have otherwise. Law abiding folks will walk by a Bait Car and do nothing to take advantage of it. Those who decide to steal it know they are breaking the law (watch how they glance around furtively and sometimes case the car and surrounding environment before getting in and stealing it if you doubt this).

Suppose Bait Car didn't leave the door unlocked or a nice pair of sunglasses on the center console and someone took a crowbar, smashed the window, hot wired the car, and drove it off. Would you think that would still make the "sting" illegal? Obviously not, but how is this different than what they actually do? Private citizens leave their car doors unlocked all the time and leave things of value in the car all the time and only criminals exploit this. The Bait Cars are not unusual in any way that would particularly entice a criminal to steal them vs. a private citizen's car which had been left unlocked.

Lights on (1)

phorm (591458) | about 2 years ago | (#40718873)

A few times when I was younger, I saw people had left their lights on and their doors unlocked. Rather than let the battery drain, I popped the door and flipped the lights off.

I wonder what the legal situation would be on that nowadays, especially with a "bait" vehicle.

Re:Lights on (1)

uncqual (836337) | about 2 years ago | (#40719019)

I've only watched a few Bait Car episodes and, of course, this is a reality show w/lots of editing.

But, they seem to wait until the thief actually gets in the car and drives it away before springing the trap.

I think, but don't recall for sure, that in one case someone actually walked up to the car, opened the door, and poked around and the police did nothing - later, the car was stolen and they sprung the trap on that crook.

I don't think your turning off the lights would have triggered any action.

Re:Hit me (1)

Mike Buddha (10734) | about 2 years ago | (#40718589)

You sound like the guys on COPS that accuse the police of entrapment because they stood around and watched them break into a house/car/mailbox instead of stopping them beforehand.

Re:Hit me (4, Informative)

demonlapin (527802) | about 2 years ago | (#40717689)

For it to be entrapment, the police have to initiate the wrongdoing - e.g., if an undercover cop asks you out of the blue if you'd like to buy drugs, that's entrapment. If you call a known drug dealer and tell the guy on the other end (who happens to be a cop) of the phone you want some pot, that's not entrapment.

Re:Hit me (3, Interesting)

idontgno (624372) | about 2 years ago | (#40717785)

Using the exact setup from the case in question, if the cops had gone through the seized smartphone's call log and called back phone numbers offering drugs, that'd be on the "entrapment" side of it. I guess.

I suspect you never really know if it's officially entrapment until an judge says it is in the process of throwing out the case.

Re:Hit me (3, Informative)

slimjim8094 (941042) | about 2 years ago | (#40718041)

Pretty much, yeah. Entrapment is a pretty specific thing; if you watch those shows like Cops, they occasionally do drug stings (take down the guy, then use his house). The conversation is very careful -

cop:"what's up?"
suspect:"you got anything"
c:"what you looking for?"
s:"coke/smack/pot/dope/weed/etc"
c:"oh yeah sure"

and then the transaction takes place. The suspect has to be the one who broaches the subject of illegality, the cops can't ask. The idea is they can't entice somebody to commit a crime that otherwise wouldn't have taken place. They can't walk up to a dude and suggest he steal a car, but they can leave a "bait car" unlocked and running. An undercover pretending to be a prostitute can't ask a john if he wants a good time, but she can go along with it when he asks. Basically they can facilitate the situation that would attract somebody already looking to commit a crime, but they can't put the idea into someone's head.

Re:Hit me (0)

Anonymous Coward | about 2 years ago | (#40718147)

The suspect has to be the one who broaches the subject of illegality, the cops can't ask. The idea is they can't entice somebody to commit a crime that otherwise wouldn't have taken place. They can't walk up to a dude and suggest he steal a car, but they can leave a "bait car" unlocked and running. An undercover pretending to be a prostitute can't ask a john if he wants a good time, but she can go along with it when he asks. Basically they can facilitate the situation that would attract somebody already looking to commit a crime, but they can't put the idea into someone's head.

Yea, that is the idea, isn't it?

Tell that to my cousin, who is currently serving 6 months in the state pen because a narc* forced him, at gunpoint, to sell drugs (which were furnished by said narc, FYI) to an undercover cop.

The problem with assuming that cops will follow the laws is that they don't.


* yea, yea, I already hear it: "Dur, uh narc ain't a cop, so it's OK." No, it;s not "OK," it's the same Constitutional end-run bullshit people like me have been fighting for years.

Re:Hit me (0)

Anonymous Coward | about 2 years ago | (#40718239)

Also that's not actually entrapment. The police are allowed to ask all they want, and all you have to do is say no. Entrapment is when you would never have said yes if the police hadn't made an effort to change your mind.

Re:Hit me (5, Interesting)

WillDraven (760005) | about 2 years ago | (#40719165)

When I was a teenager a guy we all knew turned narc. He called me up and asked if I had any pot. I told him I had a tiny amount left and would smoke with him. He comes to my house and starts begging me to let him take some home. He tells me his stepfather is going to beat him unless he brings some home. After half an hour I get sick of this yoyo bugging me so I give him half a gram just so he'll get out of my house. He didn't even pay for it.

Fast forward a few months and I get pulled over and told I'm being charged with
-Possession with intent to distribute narcotics
-Sale and delivery of narcotics
-Maintaining a vehicle for the purpose of distributing narcotics
-Maintaining a dwelling for the purpose of distributing narcotics
-Conspiracy to distribute narcotics

On the (bad) advice of my lawyer I plead guilty to 3 out of 5 felonies.

Turns out this was part of our town police's two year long secret undercover investigation. Similar things happened to 8 of my friends, none of whom I would consider "drug dealers." Two years and who knows how much money spent, net result: a bunch of kids who could of had bright futures now with felonies on their records (since you're an adult at 16 in North Carolina).

This is the result of the war on drugs. Police departments need drug busts on a recurring basis to keep getting some of that sweet sweet federal drug enforcement money. What we end up with is a systematic campaign to label casual drug users (usually kids, they don't have the defensive paranoia older users have yet) as dealers and load them up with felonies.

Well, um, I've gone off on a bit of a rant, but the point (I think) was that I was guilty of simple possession, and I was entrapped into distribution that I otherwise was not interested in committing. I guess it's a but blurry considering I was willing to smoke with him... but either way claiming that I was maintaining my house and car for the purpose of conspiring to deal drugs is ludicrous.

TL;DR: A lot of cops suck, the drug war sucks, arresting kids sucks, and entrapment sucks. ;-)

Re:Hit me (1)

zzsmirkzz (974536) | about 2 years ago | (#40717837)

For it to be entrapment, the police have to initiate the wrongdoing - e.g., if an undercover cop asks you out of the blue if you'd like to buy drugs, that's entrapment.

I think that's close but then there are these types of stings which are (arguably) legal. An undercover cop asks you out of the blue if you want "a good time" or to pay for sex. It's out-of-the-blue because you were just driving by.

Re:Hit me (1)

Applekid (993327) | about 2 years ago | (#40718059)

For it to be entrapment, the police have to initiate the wrongdoing - e.g., if an undercover cop asks you out of the blue if you'd like to buy drugs, that's entrapment.

I think that's close but then there are these types of stings which are (arguably) legal. An undercover cop asks you out of the blue if you want "a good time" or to pay for sex. It's out-of-the-blue because you were just driving by.

Johns that pick up streetwalkers don't just drive by. They stop and allow the prostitute to approach. The stopping action represents their initiation of the crime.

Re:Hit me (1)

Hatta (162192) | about 2 years ago | (#40718197)

Just because the police do it and get away with it doesn't mean it's legal. e.g. DUI checkpoints, domestic "border checkpoints" etc.

Re:Hit me (4, Informative)

Jeng (926980) | about 2 years ago | (#40717715)

It is not entrapment.

I can't find the tutorial on entrapment that is set up as comics, so wikipedia will have to do.

http://en.wikipedia.org/wiki/Entrapment [wikipedia.org]

In criminal law, entrapment is conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit.[1] In many jurisdictions, entrapment is a possible defense against criminal liability. However, there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a favorable opportunity for the person to commit the crime. For example, it is not entrapment for a government agent to pretend to be someone else and to offer, either directly or through an informant or other decoy, to engage in an unlawful transaction with the person (see sting operation). So, a person would not be a victim of entrapment if the person was ready, willing and able to commit the crime charged in the indictment whenever opportunity was afforded, and that government officers or their agents did no more than offer an opportunity.

Re:Hit me (1)

Teppy (105859) | about 2 years ago | (#40718321)

Right - if they persuade someone to commit a crime that they otherwise would not it's entrapment. This happened to a friend at Burning Man a few years ago: A new guy was hanging around the friend's camp all day, drinking, smoking weed, just getting to know everyone. After several hours he says "hey, I've got some extra weed, could any of you help me turn it into mushrooms?" My friend, thinking he was doing the new guy a favor agreed. Turns out the "new guy" was an undercover cop and busted my friend for distribution; he was hauled off to Reno, spent the night in jail, the whole works. The next day he was released and charges dropped because (presumably; I wasn't able to accurately get this part of the story) the cops felt they had crossed the line of entrapment and persuaded someone who wouldn't normally distribute drugs, to do so.

So what if a drug dealer got word out that all customers must go through the following routine on each purchase:

Customer: Do you have any weed?
Dealer: Sorry, I don't sell weed.
C: Would you do it just this one time?
D: No, I don't do that.
C: Please, just do it for me.
--- etc ---

If the customer was in fact an undercover cop, then the fact that he was repeatedly begging to buy drugs makes for a perfect entrapment defense.

Re:Hit me (1)

Jeng (926980) | about 2 years ago | (#40718447)

My guess is:

If the phone is tapped and the cops can show that this is the routine that one goes though to purchase from said person then they can show that since it is routine it is not entrapment.

But that is only a guess.

Re:Hit me (1)

Teppy (105859) | about 2 years ago | (#40718621)

Yes, but with a wiretap the undercover part wouldn't be needed in the first place. Also, in a state with an "objective" entrapment test (in this case "would a normal law abiding person have sold the drugs when begged") this would be a difficult defense. But in states with a "subjective" entrapment test ("would the defendant himself have done the crime if simply asked rather than begged") it would seem like a pretty tight defense. According to Wikipedia, 37 states use the more stringent subjective test.

Re:Hit me (1)

Jeng (926980) | about 2 years ago | (#40718859)

And a wiretap is so so so much easier to get than approval for an undercover sting. The sting tends to happen after they have the information showing that it will be worthwhile to have a sting.

Re:Hit me (1)

ClintJCL (264898) | about 2 years ago | (#40717745)

Please look it up before leaving a stupid comment. Entrapment is when they force you to do it. Gathering information is not forcing anybody to do anything. I'm about as anti-cop as they come (I smile when I read a cop is killed), but.... Your comment was weaksauce.

Re:Hit me (0)

Anonymous Coward | about 2 years ago | (#40718135)

Smiling when anyone is killed tells me all I ever need to know about you.

Re:Hit me (0)

Anonymous Coward | about 2 years ago | (#40718269)

Glass houses and all that...

Re:Hit me (1)

Lehk228 (705449) | about 2 years ago | (#40718187)

*kick* yea you are off. It would be entrapment if the police texted people and asked them "hey wanna buy some weed, I have weed for cheap?"

Re:Hit me (0)

Anonymous Coward | about 2 years ago | (#40719169)

I don't know much about entrapment but from what I *think* I know about it, I would say this sound entirely like that. Even if the "friend" came asking for the drugs, isn't this still a type of entrapment? Please kick me if I'm completely off on this.

As others have said, it's not entrapment. They also often don't charge the people showing up to buy drugs. Thanks to RICO, they can take the people's money without ever accusing them with a crime. If people want the money back, they have to sue and convince the court that the money wasn't for something illegal. No innocent until proven guilty. RICO is a civil seizure [wikipedia.org] . What's more, most jurisdictions allow the police to keep that money unbudgeted. They can spend it on anything.

This leads to corruption and seems more like highway robbery than law enforcement. I've no way to know if that's what happened in this case, but it happens way too often. Most cases are too small for people to sue, but here's a good exmaple [wikipedia.org] .

Re:Hit me (1)

jklovanc (1603149) | about 2 years ago | (#40719189)

Entrapment is offering to sell drugs and then arresting people who buy them. That is different than waiting for a request to buy drugs and arresting people when the transaction completes.
Here are two examples;

Undercover officer; Want to buy (insert illegal drug here)?
Person; Sure
Person and officer exchange "drugs" for money.
Officer arrests person. That is entrapment as the officer made the first offer of an illegal action.

Undercover officer; Looking for something)?
Person; Yeah, got any (insert illegal drug here)?
Person and officer exchange "drugs" for money.
Officer arrests person. That is not entrapment as the person made the first offer of an illegal action.

In the case of the cell phone, if the officer sent texts offering to sell drugs that would be entrapment. On the other hand if the officer responded to texts asking for drugs that would not be entrapment.

When are they going to learn? (1)

Sparticus789 (2625955) | about 2 years ago | (#40717699)

Passwords! Passwords! Passwords!

Re:When are they going to learn? (0)

Anonymous Coward | about 2 years ago | (#40717777)

Won't matter. The cops will just get a judge to demand you turn over your password to your phone.

Re:When are they going to learn? (0)

Anonymous Coward | about 2 years ago | (#40717855)

That is self-incrimination and is protected under the 5th ammendment. Flat out refuse.

Re:When are they going to learn? (2, Interesting)

Anonymous Coward | about 2 years ago | (#40717915)

And then they hold you in contempt of court until you turn it over.

http://yro.slashdot.org/story/12/01/24/024233

Re:When are they going to learn? (0)

Anonymous Coward | about 2 years ago | (#40718083)

And then they hold you in contempt of court until you turn it over.

http://yro.slashdot.org/story/12/01/24/024233

So? I'm willing to fight for my freedom.

Re:When are they going to learn? (0)

Anonymous Coward | about 2 years ago | (#40718163)

And then they hold you in contempt of court until you turn it over.

http://yro.slashdot.org/story/12/01/24/024233

So? I'm willing to fight for my freedom.

No, you wouldn't be "fighting", you'd be sitting in jail.

Re:When are they going to learn? (1)

CanHasDIY (1672858) | about 2 years ago | (#40718971)

And then they hold you in contempt of court until you turn it over.

http://yro.slashdot.org/story/12/01/24/024233

So? I'm willing to fight for my freedom.

No, you wouldn't be "fighting", you'd be sitting in jail.

So? I'm willing to fight for AC's freedom.

That's what, supposedly, makes this a great nation - not our willingness to fight for our own rights, but our willingness to fight for the rights of others.

Re:When are they going to learn? (1)

EdIII (1114411) | about 2 years ago | (#40719213)

Thank You.

I too am willing to sit in jail for as long as the judge wants me to. I would not turn over any passwords either.

Re:When are they going to learn? (1)

Jeng (926980) | about 2 years ago | (#40717863)

Not passwords, code words.

Re:When are they going to learn? (3, Funny)

Altrag (195300) | about 2 years ago | (#40718637)

Set your password to "fuck off".

Cop: "What's your password?"
You: "Fuck off"
Cop: "Perjury is a crime you know. What's your password?"
You: "Seriously, fuck off"

Etc.

Re:When are they going to learn? (1)

CanHasDIY (1672858) | about 2 years ago | (#40719109)

Set your password to "fuck off".

Cop: "What's your password?" You: "Fuck off" Cop: "Perjury is a crime you know. What's your password?" You: "Seriously, fuck off"

Etc.

Pull an Abbott - make it "what"

Re:When are they going to learn? (1)

queazocotal (915608) | about 2 years ago | (#40718901)

I suspect passwords are important for another reason.
Previous caselaw, as I understand it has established that there may not be a reasonable expectation of privacy for texts.

If you know that a user of a phone has their phone secured, so that only the user can easily access it - this may be sufficiently different so as to make this earlier caselaw not apply.
Then there may be a 'reasonable expectation of privacy', that users do not know the phone they are sending to is locked may not have.

Isn't this a type of lie? (1)

Anonymous Coward | about 2 years ago | (#40717795)

Isn't this pretty much already established? We already know it's a crime to lie to the police, but it's sanctioned behaviour for them to lie to the people under their protection. Wouldn't this be an extension of that? Really, they're lying about who they are to trick the populace into giving up information they would not otherwise share with the police.

Re:Isn't this a type of lie? (1)

SoftwareArtist (1472499) | about 2 years ago | (#40718035)

Actually, it is not a crime to lie to the police, except in a sworn statement. In contrast, it is a crime to lie to a federal agent.

Re:Isn't this a type of lie? (1)

CanHasDIY (1672858) | about 2 years ago | (#40718173)

Actually, it is not a crime to lie to the police, except in a sworn statement. In contrast, it is a crime to lie to a federal agent.

Question: What if the federal agent fails to identify themselves as such prior to the conversation?

I can hardly see a legal justification for lying to the feds, if you don't know they're feds beforehand... At least, in a non-police state.

Re:Isn't this a type of lie? (3, Interesting)

jittles (1613415) | about 2 years ago | (#40718289)

I believe that depends on what state you live in. I know for a fact that it is illegal to lie to police in the state of California. Especially if it hampers an investigation. That's why they tell you not to speak without a lawyer.

Hmm (1)

girlintraining (1395911) | about 2 years ago | (#40717811)

Aren't they also asking you to surrender your password and access codes for phones, laptops, etc., whenever you board a plane, and have now extended that to searches of a vehicle, and in fact, they can now force you to reveal your password without charging you with any crime. So then they compel you to surrender your identity and equipment... and then use your identity and equipment to pretend to be you, in order to do the same to others.

Agent Smith, you have competition.

Re:Hmm (1)

kwerle (39371) | about 2 years ago | (#40717919)

Not in the US - be law enforcement, I don't think. Certainly it seems to me like that would violate the 5th.

For air travel, who knows. But I certainly have never revealed passwords (nor would I, I should think).

Re:Hmm (1)

CanHasDIY (1672858) | about 2 years ago | (#40718199)

Aren't they also asking you to surrender your password and access codes for phones, laptops, etc., whenever you board a plane, and have now extended that to searches of a vehicle, and in fact, they can now force you to reveal your password without charging you with any crime. So then they compel you to surrender your identity and equipment... and then use your identity and equipment to pretend to be you, in order to do the same to others.

Agent Smith, you have competition.

ProTip: Police forces can only do what the citizenry allows them to do.

Of course, to change that trend would require a complete reversal of the status quo mentality of only being willing to defend the rights of those one agrees with.

Re:Hmm (1)

girlintraining (1395911) | about 2 years ago | (#40718235)

ProTip: Police forces can only do what the citizenry allows them to do.

Yeah... umm... they have assault rifles, shotguns, handguns, drones, and all manner of paramilitary gear. How do you think that's going to work out? What are you going to do, brandish a butter knife at them and... butter them to death?

Re:Hmm (1)

betterunixthanunix (980855) | about 2 years ago | (#40718299)

We could stop paying them. Of course, that would require us to vote for some real liberal politicians, not the "liberals" who are really "not as far to the right as the other guy on a few issues."

I disagree with both the ruling and the precedent. (0)

Anonymous Coward | about 2 years ago | (#40717829)

The messages are communications, not mere saves numbers. They have temporal value and the knowledge that the most recent message sent was successfully received by the intended recipient means there is a reasonable belief the same will be the case on the next one. Just as searching the personal papers of a person requires reasonable suspicion and a court order, the same should be the case for live or store-forwarded messages.

Don't even get me started on entrapment and the police themselves creating a crime out of thin air which is the case for both the precedent and the ruling. That should invalidate both cases on their face.

Snail mail analogy? (5, Interesting)

DeadCatX2 (950953) | about 2 years ago | (#40717867)

Couldn't the same also be said about snail mail - that you have no reasonable expectation that the envelope will be opened by the recipient?

I must say, I find it slightly disturbing that there is no reasonable expectation that the owner of the phone is the one who will be reading my correspondence. What reasonable person does *not* expect someone to be in position of their own property? If it was not reasonable to believe the owner of a phone is the one holding it, why would we use such phones for communication?

Re:Snail mail analogy? (-1)

Anonymous Coward | about 2 years ago | (#40718095)

Well I send sexually explicit text messages to random phones expecting that my future love of my life is on the other end, I don't see this being any different.

Re:Snail mail analogy? (1)

mooingyak (720677) | about 2 years ago | (#40718245)

Couldn't the same also be said about snail mail - that you have no reasonable expectation that the envelope will be opened by the recipient?

I must say, I find it slightly disturbing that there is no reasonable expectation that the owner of the phone is the one who will be reading my correspondence. What reasonable person does *not* expect someone to be in position of their own property? If it was not reasonable to believe the owner of a phone is the one holding it, why would we use such phones for communication?

It's not so much the expectation that the intended person is the recipient, but rather that the intended person is the exclusive recipient of your communication.

Re:Snail mail analogy? (3, Insightful)

DeadCatX2 (950953) | about 2 years ago | (#40718361)

I guess I can see that, once you add "exclusive".

After all, I reasonably expect people to be in possession of their own property, for instance their car. So if I see my wife's car in a parking lot, I would reasonably expect my wife to be somewhere nearby. However, I wouldn't find it unreasonable if instead I found, say, my mother-in-law nearby, because it's reasonable for her to let her mother drive her car.

Still, it feels almost like splitting hairs. After all, I would not reasonably expect a stranger to be driving her car; the only reason my mother-in-law wouldn't be unreasonable is because she's immediate family.

In that sense, I might not expect the intended person to be the exclusive recipient, but I would expect to know all potential recipients (e.g. if I send a message to my buddy, I could reasonably expect his wife to read the message, but I wouldn't reasonably expect his neighbor to be reading it).

Re:Snail mail analogy? (0)

Anonymous Coward | about 2 years ago | (#40718525)

Of course, shouldn't the fact that (almost?) every cell phone on the market (and all iPhones) can be locked give people some expectation that the message will only be seen with at the very least the consent of the intended recipient?

I can see the argument that a cell phone is akin to a pager if we were just talk about history. The argument of the 1990 ruling that search a pager is okay because it is "just a receptacle for phone numbers, like an address book" is alarmingly broad. An address book contains numbers of people you might attempt to communicate with. You could make an argument for collecting or requesting that data, as though incoming/outgoing calls from the carrier, but I have a feeling that requires a stronger burden than was apparently allowed for pagers.

Re:Snail mail analogy? (3, Insightful)

Anonymous Coward | about 2 years ago | (#40718491)

"Couldn't the same also be said about snail mail - that you have no reasonable expectation that the envelope will be opened by the recipient?"

    Actually it's a federal crime to read someone elses mail. That's the example that should have been used as mail, pagers, phones, internet, actually are just communications channels protected under the 4th amendment privacy references and later court decisions. In deference to recent court decisions, the general public has every right to expect that private information sent via private and public channels is theirs and the recipients only. The laws protecting users of the US mail and phone services are proof of that view. Once that view breaks down those systems that help to bind us fall into disuse and trust falls by the wayside along with national stability.

    The drug dealer was arrested, which is just active accusation not conviction. His rights to his phone are supposed to be there until convicted, until then the police using his phone without his permission violated his civil rights. Police and government don't like it, rewrite the constitution and various court decisions protecting privacy and take responsibility for the resulting war that follows.

because you're foolish? (1)

Chirs (87576) | about 2 years ago | (#40718581)

It's always been the case that someone could have lost their phone/pager, or had it stolen. Sure, in most cases the phone will be in the hands of the owner, but it's certainly not guaranteed.

With a pager it's pretty obvious, there is no security, your phone number just displays on the screen. So I think they're correct there. Similarly, with many dump phones an incoming text message just pops up on the screen.

Now in the case of a smartphone with a password then in my opinion you could reasonably argue that you would have a reasonable expectation of privacy sending information to it...but technically speaking I have no way of knowing what sort of phone the recipient is using when I send them a text. They could have broken their smartphone and temporarily gotten a dumb phone as a replacement.

Re:because you're foolish? (3, Insightful)

DeadCatX2 (950953) | about 2 years ago | (#40718893)

Yes, it could have been stolen. However, to say that something is not impossible is not to say that something is reasonable. The crux of the matter is that I have a reasonable expectation that a phone will not be stolen when I send a communication to it. After all, if the phone was stolen, a reasonable person would report it stolen promptly, and the service would be shut off, thereby removing the ability of the thief to read the contents of any message I send to the phone. With the advent of remote wipe abilities, you could also try to make the argument that a reasonable person would have all the info from a stolen phone remotely wiped, therefore denying access to even previously successful communications with the intended recipient.

However, I am drawn back to the snail mail analogy again. It's always been the case that someone could take the mail directly from your mailbox. However, this expectation is unreasonable because taking someone else's mail is illegal. In the same token, stealing someone's personal property is also illegal.

So, again, if you don't have a reasonable expectation of privacy because the recipient's phone could be stolen, why would you have a reasonable expectation of privacy when sending snail mail?

Re:because you're foolish? (1)

s.petry (762400) | about 2 years ago | (#40718967)

So what happens when your phone gets taken by a Cop, and a friend texts you..

Friend "WHATS UP!?!".

Cop "Not much, in bad staights. Have anything I can take?"

Friend "No, odd that you ask, but I may know someone."

Cop "Cool, thanks man, an oz of grass should do."

Friend "Ok due, I think I can hook you up.. just not like you"

Cop "Thanks, where can we meet?"

Friend "Starbux, cya at 3"

Cop "thx"

3PM at Starbux "I'm officer Jim, you are under arrest for distributing drugs.

Yeah, seems perfectly and logically reasonable for a Cop to be able to impersonate you on your phone.. Fucking morons.. We are doomed!

no expectation of privacy - ever (0)

Anonymous Coward | about 2 years ago | (#40717885)

The judge could have saved a lot of ink if he'd just said the truth. Our government allows us no reasonable expectation of privacy. Ever. Anywhere.

What about old wired phones? (1)

cpu6502 (1960974) | about 2 years ago | (#40718033)

Do police have the ability to sit in my house & use my number 555-0796 to pretend to be me to entrap my friends/colleagues?

Re:What about old wired phones? (1)

Jeng (926980) | about 2 years ago | (#40718249)

Yes, if they are raiding your home, and someone calls you, they will pick it up and pretend to be you.

message is still in transition! (3, Insightful)

mspring (126862) | about 2 years ago | (#40718037)

As a sender of a message I regard the message to be in transition until it reaches the recipient *I* intended. Therefore it should be treated as the interception of a message in transit when the wrong person reads of an end device which is not hers.

True story... (2)

thisisfutile (2640809) | about 2 years ago | (#40718071)

In my college days (read: drug experimentation days), we were at my friend's apartment waiting for two more friends to arrive for our "after hours" party (2:01 am, after the bars close). While packing a bowl, we had our back to the door and there was a knock. We knew our friends were coming and we assumed it was them. "COME ON IN" we said. In walked two police officers (called to our location for a noise complaint). They confiscated our drugs/paraphernalia and cited us for something (I forget the details...20 years later). I don't see using the cell phone as any different. Funny ending....when the officers left, they forgot to take the drugs/paraphernalia so we ended up getting high anyway (but WOW, what a buzz kill) :(

Re:True story... (5, Insightful)

Lehk228 (705449) | about 2 years ago | (#40718267)

They didn't forget to take the drugs/pipes. They correctly recognized that if they took the drugs they had to charge someone with possessing them, if they charged someone with posessing them that person would be banned from getting financial aid for school. The cops made the choice to be decent about it and handle the noise complaint without ruining anyone's life. Kudos to those officers.

Re:True story... (3, Informative)

thisisfutile (2640809) | about 2 years ago | (#40718317)

Oh no, we were cited. We had a court appearance for some type of minor paraphernalia possession which is on my record to this day. I don't remember if I had to pay a fine or do community service (maybe both).

Re:True story... (1)

thisisfutile (2640809) | about 2 years ago | (#40718351)

...in fact, I had a fanny pack (those were in at the time) and they scooped all our stuff into this fanny pack with the intention of taking it...then left it on the table when they walked out. I'm guessing they were too embarrassed to come back for it.

Re:True story... (1)

spire3661 (1038968) | about 2 years ago | (#40718407)

I have adult marijuana possession on my record. I got federal student aid just fine, and was a felony fugitive at the time too.

Re:True story... (0)

Anonymous Coward | about 2 years ago | (#40718675)

Funny ending....when the officers left, they forgot to take the drugs/paraphernalia so we ended up getting high anyway (but WOW, what a buzz kill) :(

This was intentional. Trust me. I have second-hand experience of this. However, they intentionally left the weed in sealed in a bag, but thrown into a toilet. What you encountered was the occasional decent cop.

I was drunk as shit at a concert, and fell into a cop. Guy put me back up and suggested that maybe I had had enough and sent me on my way. Heh. I could have been charged with assaulting a cop and public intox. This was at the AMP in Fayetteville AR. They serve alcohol at this venue.

Fayetteville AR cops are great. I've had a similar experience on Dixon Street. You can also smoke weed in this city and face nothing but a misdemeanor citation and you're kindly asked to put out your joint or whatever. They don't normally confiscate it. I guess this is probably common in college towns.

work at home (-1)

Anonymous Coward | about 2 years ago | (#40718195)

what Mike implied I'm amazed that you can profit $6543 in one month on the internet. have you read this webpage makecash16.com

Hang on, point of law question (0)

Anonymous Coward | about 2 years ago | (#40718243)

The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can't be sure that the pager will be in the hands of its owner.

In US law, does domestic paper person-to-person mail carry an expectation of privacy?

Given, a pager signal is essentially broadcast. But that's a side argument when the judgment pivots on the expectation of the pager being in the hands of the user. If that's unreasonable, then this is about discarding the tradition of the sealed envelope in personal communication. It's no more physically secure than the pager system, but it carries a reasonable expectation. Or maybe not in the US, inside courts, pls advise.

Also in the 1990 case there is nothing said about impersonation during those calls, only that suspected drug users were called up and offered deals. That's not particularly like-for-like between cases.

sending texts sounds like a problem (2)

aegl (1041528) | about 2 years ago | (#40718259)

I can see that once the police had the phone, that looking at the address book is equivalent to looking at an old style rolodex. Looking at received texts is like the precedent cited of looking at received messages on an old style pager. But *sending* texts seems like something new. Are there precedents where a police officer who is a skilled voice mimic answers a seized phone, or starts making calls from a seized phone and impersonates the true owner of the phone?

What the hell ever happened (2)

kilodelta (843627) | about 2 years ago | (#40718283)

To the fourth amendment - secure in your person, papers and things. A cell phone is definitely a thing. And without warrant and probable cause the police shouldn't be touching the phone. Use a secure lock code on your smartphone! You don't have to disclose it.

Entrapment (0)

Anonymous Coward | about 2 years ago | (#40718545)

Total entrapment.

When they siezed the pager, it was one way - outside to cops.
When the cops called back, they called back from another number.

Here, the cops are calling back representing themselves as the phone's owner. Totally different, totally entrapment.

Every cop doing this should be in jail.

Why would anyone expect different? (1)

J'raxis (248192) | about 2 years ago | (#40718633)

This is news? Why would anyone expect our so-called "law enforcement" officers to be held to any standard of honesty or integrity nowadays?

What about a judges phone? (1)

Anonymous Coward | about 2 years ago | (#40718703)

If the police confiscate a judges phone can they impersonate the judge and lie to people? How about a doctor? I bet the judge would find a special reason that it's different for 'professionals' once he realized it could happen to him.

Don't use a cell phone for "business". (0)

Anonymous Coward | about 2 years ago | (#40718749)

How fucking STUPID do you have to be to use a phone which is wireless and
can be used to track you and is easily tapped, for any questionable business ?

If you are stupid enough to do this, you fucking DESERVE to be in prison.
At least there you cannot reproduce and fill the streets with more scum
like you.

meh (0)

Anonymous Coward | about 2 years ago | (#40718951)

I normally ask if my dealer wants to have a coffee, play some darts... whatev... AND i know it's face... good luck with that :P

wtf so much for freedom (0)

Anonymous Coward | about 2 years ago | (#40719215)

Ok, so some people are creeps and pretty much deserve whatever they get, if not more, but this is just illegal and way way beyond misjustice (though apparently not to this tool of a judge). One of the biggest issues I thought of at first reading over this is that it prevents "suspects, (and we know how accurate the government and police are in such matters) from exercising many of their basic rights. Such as for example, the right to not self incriminate (since they do not know they are talking to LEO/detectives) I mean you are given your Miranda rights when arrested. You have the right to an attorney or any other legal counsel, before you say ANYTHING.

this totally bypasses the rights of anyone to remain silent or to have legal representation.

Listening to a most likely, illegal wiretap is one thing... they say what they say talking among each other, But this allows government or local police to actively interrogate suspects without declaring they are police or giving them the opportunity to utilize their rights.

This judge and everyone involved in passing a ruling like this needs to be fired immediately and barred from further office.

I mean geez do I need to have some super duper secret passcode phrase and a blood sample and an iris / thumbprint scan just so I know who I'm talking to? wtf.

They can go fuck themselves. besides isn't that just heresy ? it's something you heard "Someone say" (who knows if it was the same person you were trying to illegally convict by this) You still need physical evidence of whatever crime or detailed testimony form multiple witnesses.

I mean what happens if you get a phone call out of the blue, saying it's a friend you haven't seen since like 3rd grade or something? Sure, you should watch what you say anyways, but this is just.. criminal IMO. I think police or other law enforcement both federal and local should be required to ID themselves as such... Hell they are.... they are required to knock and say police! This is just fucked up. and sadly cops just do whatever the fuck they are told, no wonder most people hate cops, and we hate judges and politicians more.

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