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EFF Urges Court To Protect Privacy of Text Messages

Soulskill posted about a year and a half ago | from the why-can't-we-make-generalized-privacy-laws dept.

Electronic Frontier Foundation 93

netbuzz writes "The police in Washington state arrested a suspected drug dealer, rummaged through the text messages on his phone, responded to one message while pretending to be the suspect, arranged a meeting, and then arrested the recipient of the text — all without a warrant. The state argues – and an appeals court majority agreed – that both suspects had neither a legal expectation of privacy nor Fourth Amendment protection because both considerations evaporate the moment that any text message arrives on any phone. The Electronic Frontier Foundation is urging the state's Supreme Court to overturn that decision and recognize that 'text messages are the 21st Century phone call.'"

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Text Message = Instant Snail Mail? (2, Insightful)

Anonymous Coward | about a year and a half ago | (#43409595)

If text messages are not covered by privacy laws, nor the fourth amendment, then surely the same could be applied to snail mail?
When you write a text, you're sending it from one person directly to another over an electronic network, both parties realistically expect that the person who sent it will be the person who owns the phone (or an authorised user), and that the person who receives it will be the person who owns the phone (or an authorised user).

Is it really any different to sending snail mail directly from one person to another over a physical carrier network? Both parties realistically expect that the person who signed the letter (the equivalent of a phone number) is the person who wrote it, and that the person it is addressed to will be the person to open it...?

Re:Text Message = Instant Snail Mail? (0, Troll)

davester666 (731373) | about a year and a half ago | (#43409995)

But if the police can't do this, then how can they catch terrorists? Or child molesters?

We might as well just appoint al-Qaeda as the new head of the Executive branch...I wonder what, if anything, would be different?

Re:Text Message = Instant Snail Mail? (0)

Joce640k (829181) | about a year and a half ago | (#43410445)

.... fourth amendment ....

The 4th amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

The 4th amendment does not say: "The right of the people to be secure in their persons, houses, papers, and effects, against searches and seizures, shall not be violated"

Ref: https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution [wikipedia.org]

(the section of that page titled "Searches incident to a lawful arrest" is particularly relevant...)

Re:Text Message = Instant Snail Mail? (1)

Anonymous Coward | about a year and a half ago | (#43410505)

This is unreasonable, and that is indisputable.

Re:Text Message = Instant Snail Mail? (1)

Soluzar (1957050) | about a year and a half ago | (#43410621)

If it were indisputable, this very topic would not exist...

Re:Text Message = Instant Snail Mail? (1)

Anonymous Coward | about a year and a half ago | (#43413141)

Not true. Lots of indisputable subjects are still considered disputable by some. For example, just to get the obligatory godwin out of the way, the Holocaust. It is indisputable that it happened, yet some people still choose to dispute it.

Re:Text Message = Instant Snail Mail? (0)

Anonymous Coward | about a year and a half ago | (#43416761)

Everything is disputable. There are entire college curriculum centered around disputing whether or not we even exist.

Re:Text Message = Instant Snail Mail? (1)

lupinstel (792700) | about a year and a half ago | (#43422001)

I do not believe that such a course could exist.

Re:Text Message = Instant Snail Mail? (1)

Zero__Kelvin (151819) | about a year and a half ago | (#43413573)

That's not correct. For example, it is an indisputable fact that Hitler was behind a genocidal movement known as the Holocaust. That doesn't mean that people won't attempt to dispute it anyway. By your misunderstood meaning of the word, there is no such thing as an indisputable fact:

"I just punched you in the face"
"No you didn't!"

As you can see, misused the way you are misusing it, the word would be useless.

+1 Instant Godwin ???

Re:Text Message = Instant Snail Mail? (3, Insightful)

yndrd1984 (730475) | about a year and a half ago | (#43410569)

[Fourth_Amendment_to_the_United_States_Constitution - wikipedia.org] (the section of that page titled "Searches incident to a lawful arrest" is particularly relevant...)

Did you actually read that part? The search and seizure in the case of an arrest is only reasonable for the immediate area and only to secure weapons and evidence. To quote your own article - "The justification for such a search is to prevent the arrested individual from destroying evidence or using a weapon against the arresting officer."

Do you imagine that the signers of the 4th would have thought it "reasonable" that when a man is arrested the police can use his signet ring to send false messages to whomever they like without judicial oversight?

Re:Text Message = Instant Snail Mail? (0)

Anonymous Coward | about a year and a half ago | (#43410931)

Not entirely unreasonable. Arrest someone with plenty of evidence for criminal activity - use their "signet ring" or phone or email to trap other criminals or conspirators. Of course, they should all have a fair trial.

Re:Text Message = Instant Snail Mail? (2)

Reverand Dave (1959652) | about a year and a half ago | (#43411771)

That's called entrapment and is actually illegal. The police have the right to catch or pursue someone during the commission or planning of a criminal act, but do not have the right to coax or coerce a criminal act for the sole purpose of arresting them. That would be like a cop riding your ass honking his horn and turning on his lights on the freeway until you speed up passed the speed limit then immediately pulling you over for speeding.

Re:Text Message = Instant Snail Mail? (1)

Joce640k (829181) | about a year and a half ago | (#43412089)

That's called entrapment and is actually illegal.

Entrapment is when they get you to do something they wouldn't normally do.

If you arrange to buy 10 kilos of heroin from a contact on a phone ... it's a fair bet it's something habitual.

Re:Text Message = Instant Snail Mail? (1)

scarboni888 (1122993) | about a year and a half ago | (#43412529)

You wouldn't normally buy drugs from a cop, though.

Re:Text Message = Instant Snail Mail? (3, Insightful)

Reverand Dave (1959652) | about a year and a half ago | (#43412709)

So what part of coax or coerce didn't make sense?

If you regularly buy large amounts of H then there should be actual legal ways they could use to catch you in commission of that crime without stealing someone's identity and tricking you into trying to buy drugs from them, which is entrapment.

The ends DO NOT justify the means. If you cannot trust the police to follow the law, then no one should be expected to follow it.

Cops Driving (1)

Linkreincarnate (840046) | about a year and a half ago | (#43420559)

You just described EVERY single cop to ever drive behind me.

Re:Text Message = Instant Snail Mail? (0)

Anonymous Coward | about a year and a half ago | (#43412797)

what if the signet is actually a cipher that only the guy who got arrested knows, and the local constable (who barely knows how to read, write, and do math since this is 1778), decides that he is going to send some honeypot messages to arrestee's friends to rope them in.

Can he reasonably get the cipher from the arestee
(crypto has been around since the time of julius caesar, and writing in cipher was actually how most educated people sent letters where they didn't want snooping or manipulation for a very long time. Signets were the equivalent of a signature file back in the day, not useful for priveleged information. Sort of an old timey version of symmetric key cryptography)

Re:Text Message = Instant Snail Mail? (3, Informative)

yndrd1984 (730475) | about a year and a half ago | (#43416883)

Not entirely unreasonable.

You're conflating the "reasonableness" requirement with the requirement for a warrant: When you get arrested it's reasonable to search you, and it doesn't require a warrant. When that search reveals a bag of cocaine it's reasonable to search your house, but the police still have to get a warrant.

The defense in this case is making an analogy between a cell phone and house keys - you can search for and confiscate them from a person as part of an arrest without a warrant, but you have to get a warrant to use them to collect further evidence.

Re: Text Message = Instant Snail Mail? (2)

UnknowingFool (672806) | about a year and a half ago | (#43412173)

Wow your understanding of "unreasonable" needs work. Let's look at the history of the 4th Amendment. It is a federal crime to intercept UPS mail. The police have to have warrants to open your mail unless you are a prisoner serving time being one of the few exceptions. When the telephone was first invented, police could listen in on conversations until the courts ruled that this communication was considered private. Email was being intercepted until courts again ruled that they are private. Now it is text messaging. Do you see a pattern?

Re: Text Message = Instant Snail Mail? (1)

Joce640k (829181) | about a year and a half ago | (#43412487)

It is a federal crime to intercept UPS mail. The police have to have warrants to open your mail unless you are a prisoner serving time being one of the few exceptions. When the telephone was first invented, police could listen in on conversations until the courts ruled that this communication was considered private. Email was being intercepted until courts again ruled that they are private.

All of those things are done every single day as part of criminal investigations.

Re: Text Message = Instant Snail Mail? (0)

Anonymous Coward | about a year and a half ago | (#43413183)

And your point is, what, exactly? That when the government does it, it is not illegal? Or when you say "criminal investigations", do you limit yourself to instances with legally-obtained warrants?

Re: Text Message = Instant Snail Mail? (1)

UnknowingFool (672806) | about a year and a half ago | (#43414439)

And prosecutors/police must get search warrants. Search warrants must be specific and they explicitly list mail as an item to be searched. When investigators wiretap someone's phone they have to have a warrant. And such wiretaps are not indefinite; they only last so long.

Re:Text Message = Instant Snail Mail? (1)

Zero__Kelvin (151819) | about a year and a half ago | (#43413521)

Great point there Rhodes scholar. Now, explain how warrants are an integral part of the process that directly determines if a search and seizure is reasonable. For extra credit, explain what Checks and Balances" means. Finally, offer justification for throwing out already solidly established rights and procedures simply because the means of transmission and/or storage differs.

Re:Text Message = Instant Snail Mail? (1)

Anonymous Coward | about a year and a half ago | (#43416865)

"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."

https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution#Text [wikipedia.org]

If you're going to quote the 4th amendment (and actually quote it in quotations no less) Maybe you should quote the entire thing instead of one section and leave out the pertinent part about needing a warrant (which was not obtained in this case)

identity theft.. inciting to crime.. unauthorized (4, Insightful)

gl4ss (559668) | about a year and a half ago | (#43409599)

identity theft.. inciting to crime.. unauthorized use of communications device(guess who got the bill for the sms's?)... you guys sure have a fucked police! (sms is either a phone call or more appropriately it's a letter).

Re:identity theft.. inciting to crime.. unauthoriz (3, Informative)

AK Marc (707885) | about a year and a half ago | (#43410013)

Better than the drug raids on people who own cars or houses the police want. Raid and take it all. It's not as uncommon as it should be, there was one in CA where the guy had a gun he grabbed during the home invasion. The police ordered his "hands up" Another ordered him to "put the gun down" While moving his hand from above his head to the ground to comply with both orders, he was killed. No drugs were found. I think that was yet another the police claimed was a "mistake". http://www.druglibrary.org/think/~jnr/botched.htm [druglibrary.org] for another. Hundreds of examples out there.

Re:identity theft.. inciting to crime.. unauthoriz (0)

tehcyder (746570) | about a year and a half ago | (#43410965)

there was one in CA where the guy had a gun he grabbed during the home invasion.

"Home invasion" is emotive bullshit and an attempt to justify reaching for a weapon when confronted by the police, by stating the police action as a criminal one.

I'm not American, and from my point of view if you wave a gun around near an armed cop you're asking to be shot.

Re:identity theft.. inciting to crime.. unauthoriz (0)

Anonymous Coward | about a year and a half ago | (#43411043)

I'm not American,

Correct.

and from my point of view if you wave a gun around near an armed cop you're asking to be shot.

You're a sheep. Apparently you were there and know that the cops properly announced themselves, had a warrant based on solid information, and then shot the dude when he left them no choice.

Re:identity theft.. inciting to crime.. unauthoriz (0)

Anonymous Coward | about a year and a half ago | (#43411055)

Go fuck yourself bitch. If a gang of thugs break into your completely fuckin innocent house unannounced in the middle of the night grabbing a gun for protection is not 'emotive bullshit'. Routinely not even being given the chance to lay down such weapon before being gunned down, HAS NO EXCUSE. You pathetic statist whore.

Re:identity theft.. inciting to crime.. unauthoriz (0)

Anonymous Coward | about a year and a half ago | (#43411347)

Hey dumbass, you don't always know it's the cops when someone kicks your door in - you grab your gun, run to where the intruder is and then the cops shoot you before you can process that they're actually cops and not just those assholes that dress like them to more effectively rob people.

Re:identity theft.. inciting to crime.. unauthoriz (2, Insightful)

ganjadude (952775) | about a year and a half ago | (#43411647)

if its the middle of the night, NO one should be in your home unless invited, someone breaks down your door, you have a right to defend yourself. How do you know its a real cop and not a thug breaking in pretending to be a cop? the problem isnt with gun owners, its with over reaching governments/ law enforcement.

having said all that, maybe you need to do a little more thinking before you type.

Re:identity theft.. inciting to crime.. unauthoriz (1)

AK Marc (707885) | about a year and a half ago | (#43414515)

What do you call a "no-knock raid"? It's a group of armed men who break down your door without identifying themselves, wearing full body armor with no visible identification, and wear masks (not for identity shielding, as usually claimed, but because they find it more intimidating). Give it a term that describes the act. We already have one here - we call them "home invasions". That's not emotive. That's the proper term for the act. "warranted police raid" is emotive language to paint the police as heroes fighting crime, when that's not the case. I was avoiding the emotive bullshit.

Re:identity theft.. inciting to crime.. unauthoriz (1)

chihowa (366380) | about a year and a half ago | (#43413711)

Which is why these police raids need to happen less often instead of more and more often. There's no need to kick down somebody's door and shoot their dog (and possibly them or their neighbor if they got the wrong house) over the piddly crap that they're raiding people's houses for anyway. If you can flush the evidence in the time that it takes for the police to show you the warrant and push past you, then it likely wasn't that big of a crime anyway. And the vast majority of people are not going to start shooting at police when they knock on the door (and frankly, if they are, a little investigation should reveal this).

These raids are extremely dangerous for everybody: the police, the suspect, and the neighbors. Mostly for everybody except the police, though, which is why they'll continue.

Re:identity theft.. inciting to crime.. unauthoriz (1)

sirlark (1676276) | about a year and a half ago | (#43410195)

Hmm, maybe the alleged drug dealer should get his lawyer to go after the cops for violations of terms of service, Aaron Swarts style. Life in prison sound fair according to prevailing prosecution opinion.

lock the phone? (2)

neurosieve (672682) | about a year and a half ago | (#43409613)

another good reason to have a password on your phone

Re:lock the phone? (2)

slackware 3.6 (2524328) | about a year and a half ago | (#43409641)

The reason I started locking my phone was my little kids trying to play Angry Birds on my phone every time I put it down. I never locked my phone before now it's always locked.

Re:lock the phone? (1)

geekmux (1040042) | about a year and a half ago | (#43410357)

another good reason to have a password on your phone

TSA "master-keyed" unlock code mandate in 3...2...

(It is highly ignorant to think that their rights are restricted to cheap luggage locks)

Re: lock the phone? (0)

Anonymous Coward | about a year and a half ago | (#43411401)

Cops can already unlock your phone with ease. It is a simple reboot while attached to a computer with the proper unlock software.

out of step (1)

Anonymous Coward | about a year and a half ago | (#43409631)

The law is out of step with the general publics expectations of privacy.

Does not "evaporate" (5, Insightful)

chrismcb (983081) | about a year and a half ago | (#43409635)

What the government is arguing is A)

no warrant was required because there should be no expectation of privacy in text messages, as anyone can pick up someone else's phone and read what's stored there.

and B) the EFF claims

"The state argues that just because someone can intercept a communication, you should reasonably expect that communication to be intercepted.

Remember the 4th amendment says "and papers" it does not say "and private papers that no one else can see" There are lots of things that anyone can pickup and read... a letter in an envelope (which can be intercepted as well)
There is a difference between glancing over someone's shoulder and seeing the text on the screen and physically taking the device, navigating to the text message section and scrolling through the messages.
We have every right and expectation that those texts will be private. As long as they aren't on the screen as we wave the phone around in the air.
Why does everything like this have to go to the Supreme Court?

Re:Does not "evaporate" (2)

Anonymous Coward | about a year and a half ago | (#43409741)

Why does everything like this have to go to the Supreme Court?

Because the government loves violating our freedoms, and some judges can't wrap their heads around the concept of privacy?

Re:Does not "evaporate" (0)

Anonymous Coward | about a year and a half ago | (#43410301)

Why does everything like this have to go to the Supreme Court?

Because the government loves violating our freedoms, and some judges can't wrap their heads around the concept of privacy?

You give far too much credit to some judges.

I wasn't aware that we were beyond plural in that count, and the one we found who understands privacy has no idea what a text message is.

Re:Does not "evaporate" (2)

girlintraining (1395911) | about a year and a half ago | (#43409783)

What the government is arguing is A)

Getting in the way of their warrantless, lawless, do whatever the fuck we want, police state. And so they're just going to keep trying, because let's face it: The law is more or less a lottery. And a single fuckup can establish case law and precident that'll last for centuries. Thanks, common law.

Re:Does not "evaporate" (1)

Joce640k (829181) | about a year and a half ago | (#43410399)

There's a big difference between scanning all messages passing through an exchange on fishing expeditions and looking in the phone of somebody who's already under arrest for criminal activity.

When you're under arrest as a drug dealer the police can search you and your belongings. They can even look up your ass if they want to.

Re:Does not "evaporate" (1)

Stolpskott (2422670) | about a year and a half ago | (#43410635)

There's a big difference between scanning all messages passing through an exchange on fishing expeditions and looking in the phone of somebody who's already under arrest for criminal activity.

When you're under arrest as a drug dealer the police can search you and your belongings. They can even look up your ass if they want to.

When under arrest, the police certainly can search you and examine your belongings. However, the scope of their investigation is quite heavily restricted under law, and from a quick spin through the article (sorry /., I failed you... I read the original article, sorry for not following the traditions of this community) my non-legal opinion is that most of the actions that the police performed relating to the mobile phone were illegal, unless the first suspect voluntarily gives the police access to the phone in an unlocked state.
However, for the police to then use that mobile phone and impersonate the first suspect to arrange a meeting with the second suspect smacks to me of entrapment against that second suspect.
As an aside, if one of my friends sent me a sms along the lines of "dude, let's meet in 20 minutes at X, I want to sell you some drugs", I would (a) know that it is not one of my friends, because no-one would call me "dude", and (b) I would assume they were joking about the drugs so I would go along to the meeting place thinking he had a fight with his girlfriend and needed to get drunk... getting there and meeting the police would take me somewhat by surprise. Having said that, would a "suspected drug dealer" be among my list of friends, and would I still react i the same way if the person who wanted to meet was a suspected drug dealer?

But as a SMS is a point to point communication medium, I would expect a judge who understands technology (I hear these do exist, and they live at the North Pole with Santa Claus) to rule either that SMS messages are electronic letters and there is a reasonable expectation of privacy, or that they are private if the receiving phone has a passcode lock enabled and public if a passcode lock is not enabled. But enforcing that conditional privacy clause would be a nightmare.

Re:Does not "evaporate" (2)

hairyfeet (841228) | about a year and a half ago | (#43410739)

The problem is the founding fathers never saw how infinite wealth would tilt the scales, cops can do anything they want now because the state has virtually unlimited wealth to break you. After all its not costing the prosecutor a dime to come up with 50 bullshit charges to throw at you to lessen your chances of winning a lawsuit and if it takes 10 years to worm its way through the courts how does it hurt them? It don't but since the average citizen can't afford to pay a decades worth of lawyer fees and the law is so twisted and full of jargon now you have to have a damned good lawyer and with each charge they stick on you,no matter how bullshit, will make your lawyer's fees go up so in the end you simply can't fight back.

This is why cops act like such douchebags now, they know they can get away with it thanks to the state having unlimited time and wealth to use against you.

Re:Does not "evaporate" (2)

Kjella (173770) | about a year and a half ago | (#43412073)

The problem is the founding fathers never saw how infinite wealth would tilt the scales, cops can do anything they want now because the state has virtually unlimited wealth to break you.

What, you don't think the government had more resources than lone individuals in the 1780s? That nobody was hustled by bullshit charges by sherrifs? Let's face it, if the system hates you then you've had huge problems all through-out history and things like due process and legal representation and a jury of your peers was exactly so the government couldn't do it as easily as before.

Are you sure the problems aren't your peers? Jammie Thomas did get a jury trial, they still decided to slam her with a $1.5 million dollar verdict for being a small-time, no-profit file sharer - even if you catch a shoplifter acting like an ass he's still not going to prison like he robbed a bank. In less civilized countries you throw stones at the stoning, here they throw proverbial stones from the jury box.

Re:Does not "evaporate" (2)

hairyfeet (841228) | about a year and a half ago | (#43417847)

Actually? Nope, not really. You REALLY need to look at the history of this country as it is pretty fascinating, for the first century or so you could really represent yourself and not be in a major disadvantage and if a case went on for more than a week it was a rarity. Now cases taking a decade to worm its way through the courts isn't uncommon and if I were to drop just the laws of your county onto your head i could kill you, that isn't even counting state and federal.

And I'm sorry but Ms Thomas got 12 people too stupid to get out of jury duty, its an old joke but VERY true. My mom is VERY civic minded so when called she didn't try to get out and what she saw frankly shocked her, she had to hang a jury 11 to 1 because they were gonna convict a guy of arson because...get this, he was Italian and "Italians burn down things, didn't you watch Goodfellas?". Now I live down the street from the courthouse I I've sit in the back and watched how truly fucked up things have gotten but she didn't believe until she saw with her own eyes, hell even the fire chief admitted he didn't have a clue what had started the fire and that it would have made no sense for him to burn it as he didn't have enough insurance to even cover what he owed on the property, much less make anything, but that didn't matter because he was Italian and they had seen goodfellas. Hell I wish I could find it as I remember seeing a test where they gave random people a mock pair of trails, SAME evidence and SAME script word for word, the ONLY difference was they put the defendant in a fancy suit and styled his hair VS having him in jeans and a t-shirt, the outcome? T-shirt guy would have gotten 10 years while Armani suit walked and again SAME guy with SAME script, just different outfits!

So I'm sorry but things were VERY different back then but your average person could easily understand your average trial. Today the laws are written to be as obtuse as possible and your average Joe is lucky if he can read the legal BS put in your average EULA, much less understand a couple of dozen statues written by lawyers getting paid by the hour.

Re:Does not "evaporate" (1)

cavreader (1903280) | about a year and a half ago | (#43411187)

"do whatever the fuck we want, police state"
If this is the case why is this action going through the court system? The US justice system is not perfect but this action is being examined by several different courts with an appeal process. And judges are not the only ones incapable of wrapping their heads around the concept of privacy. People today post their life history on the Internet and then complain their privacy is being violated. Most of the rabid privacy shills can not wrap their heads around the difference between "privacy" and "anonymity". Most of the laws governing this area where created long before the computer age. The same group also tends to scream "censorship" when asked to pay for the information they want access to.

Re:Does not "evaporate" (1)

TheMathemagician (2515102) | about a year and a half ago | (#43410069)

Why should the police need a warrant to examine a suspect's phone messages if they have the right to search him? Would you expect them to get a warrant if he had unopened letters on his person? Please note I am NOT suggesting the cops can look at everyone's phones/text messages at will. But in situations where they have arrested a suspect and are searching him then text messages are fair game. Sending text messages posing as the suspect to presumably arrange a drug deal does seem like entrapment but that's a separate issue.

Re:Does not "evaporate" (0)

Anonymous Coward | about a year and a half ago | (#43414293)

Would you expect them to get a warrant if he had unopened letters on his person?

Yes, actually, I would. They're unopened letters and there's a reasonable expectation of privacy and law that backs that up.

Re:Does not "evaporate" (1)

Joce640k (829181) | about a year and a half ago | (#43410375)

We have every right and expectation that those texts will be private

This guy wasn't somebody picked at random on the street, he was under arrest as a suspected drug dealer.

You know the cops can search your car/house/etc. if they have "reasonable suspicion", right?

Re:Does not "evaporate" (3, Insightful)

bradley13 (1118935) | about a year and a half ago | (#43410469)

Um, no? If the cops arrest you, they do not have the right to ransack your house.

They can search you and your car. As I understand it, the original idea was simply to ensure that you weren't armed and weren't carrying anything that they didn't want you to have while in jail. Creeping decisions by the courts have broadened this beyond recognition.

Allowing them to search your phone is much more like your house: This has nothing to do with officer safety. They may not want you to have the phone while in jail, so they can confiscate it. However, looking around in your files and messages is like going to your home and rummaging through your personal papers. So far, that *does* require a warrant. Granted, it's an easy warrant to get if you've been arrested.

Then they went the next step: using this guy's phone to set a trap for someone else. IANAL, but this sounds an awful lot like entrapment.

The police want to nail the bad guys. They will use whatever means they can get away with, because their cause is just and their hearts are pure. Mostly, the courts go along with them, because they are all players on the same team. This is all great, until you consider what happens when an innocent citizen falls under suspicion.

If the cops and prosecutors think you are guilty of some crime, they will use whatever means they have to nail you. Then they pile on the charges to intimidate you into accepting a plea bargain, so they can go on to the next case without the trouble of providing any due process. That pic of your kids in the bath? Child porn. That joking message to your friend? Conspiracy. Ridiculous, sure, but do you have the money to defend yourself?

It must be our goal as citizens to keep the system under control.

Re:Does not "evaporate" (1)

Joce640k (829181) | about a year and a half ago | (#43410479)

Um, no? If the cops arrest you, they do not have the right to ransack your house.

True, but they do have a right to search your person and your immediate surroundings for evidence that can be used against you, no warrant needed.

Ref: https://en.wikipedia.org/wiki/Chimel_v._California [wikipedia.org]

Re:Does not "evaporate" (1)

yndrd1984 (730475) | about a year and a half ago | (#43410603)

True, but they do have a right to search your person and your immediate surroundings for evidence that can be used against you, no warrant needed.

From your own link - "... There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well recognized exceptions, may be made only under the authority of a search warrant. ..."

Re:Does not "evaporate" (1)

Joce640k (829181) | about a year and a half ago | (#43412111)

So....you're agreeing with me? I'm confused.

Re:Does not "evaporate" (0)

Anonymous Coward | about a year and a half ago | (#43414343)

So....you're agreeing with me? I'm confused.

Funny definition of "agree." I think the point is a closed cell phone is analogous to a closed desk drawer, which is not searchable without first obtaining a warrant.

Re:Does not "evaporate" (1)

yndrd1984 (730475) | about a year and a half ago | (#43417089)

No, I'm not agreeing with you.

It's true that while arresting you the police can search you and your immediate surroundings and confiscate most of what they find - but this is a limited ability based on the compelling needs of safety and evidence preservation. They can't use the house keys they confiscated to search your house, open your safety deposit box, etc. without a warrant, because those searches aren't justified by either of those two compelling needs. The bit I quoted before is another example of a search that is not allowed as part of an arrest.

In this case the defense is arguing that because neither the need for safety nor the need to preserve evidence justified the use of the cell phone, any evidence collected as a result of that use should be thrown out, the same way it would be if they had used the key to his front door to find evidence in his house without a warrant to search the home.

Re: Does not "evaporate" (1)

UnknowingFool (672806) | about a year and a half ago | (#43412095)

Well it is a federal crime to intercept snail mail in transit. There was a reason for this. The problem is that laws have not kept up with technology. Some courts only will interpret the exact laws while some will expand the scope as they deem fit. Unfortunately the latter will be labeled as "judicial activism" by conservatives. Higher court rulings will set precedent.

Re:Does not "evaporate" (1)

Fnord666 (889225) | about a year and a half ago | (#43413973)

Why does everything like this have to go to the Supreme Court?

Because that is where we set meaningful precedents that will have a significant impact on the interpretation of laws for years to come.

On parole notherdrunkards and I need cash FROM YOU (-1)

Anonymous Coward | about a year and a half ago | (#43409637)

Me and my crew are out and coming to get YOUR STUFF!

CFAA should handle this. (5, Interesting)

VortexCortex (1117377) | about a year and a half ago | (#43409639)

Clearly the police were in violation of the computer fraud and abuse act.

Put 'em in jail.

Logic (2)

slackware 3.6 (2524328) | about a year and a half ago | (#43409651)

So by Washington states logic I should be able to see the judges and police officers texts to.

Re:Logic (1)

allypally (2858133) | about a year and a half ago | (#43409891)

Why not give it a try!?

A simple FOI request to your local police department should suffice to get some idea of whether the principle is sound or not.

Re:Logic (1)

TheMathemagician (2515102) | about a year and a half ago | (#43410075)

If you've arrested them under suspicion of a felony and are conducting a search of their person then yes. Otherwise no.

Re:Logic (3, Informative)

c0lo (1497653) | about a year and a half ago | (#43410125)

If you've arrested them under suspicion of a felony and are conducting a search of their person then yes. Otherwise no.

Innocent until proven guilty?
Is there any constitutional difference on the level of guilt of a policeman/judge and a suspect under investigation?
The fact that one is a suspect, does it make the one automatically lose some or all their constitutional rights?

You really want me to start "suspecting" you?

FOIA. Allows access. (0)

Anonymous Coward | about a year and a half ago | (#43410815)

Since these are government institutions in the person of a person, they can be searched under the auspices of their employer (you) under the FOIA. Since the suspect is a private individual, the police or courts are NOT their employer and the FOIA doesn't apply, so they need a warrant to take the place of the FOIA (and a warrant requires reasonable suspicion).

Re:FOIA. Allows access. (0)

Anonymous Coward | about a year and a half ago | (#43411695)

it is my understanding that if the phone is issued by the government then that potentially changes and any activity (potentially even if it is personal and was done off-the-clock) that the phone is used for can potentially be accessed via a FOIA request.

*Note: i am a State Govt Employee.

Re:Logic (1)

Zero__Kelvin (151819) | about a year and a half ago | (#43413617)

texts to whom?

sticky beaks (0)

Anonymous Coward | about a year and a half ago | (#43409663)

Its clear that the law is out of step with general public expectations of privacy.

Are warrants that hard to get? (5, Insightful)

hedgemage (934558) | about a year and a half ago | (#43409791)

All they had to do was get a warrant. If they had enough evidence to pick this guy up, I'm sure any judge would gladly sign off on a warrant to 'search' his phone and then follow the proper procedures for the ensuing sting operation. This is sloppy police work, nothing more, and now the public is being forced to pay the price for it by being forced to pay for court challenges because no one has the guts to admit they were sloppy.

Re:Are warrants that hard to get? (3, Insightful)

maroberts (15852) | about a year and a half ago | (#43409867)

The question is whether getting a warrant takes some time, and that this may impede actions to prevent criminal activity.

However, as someone else has said, the 4th Amendment states:
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

Given that the 4th Amendment specifies papers, it presumably should be interpreted in the modern age to include any form of written communication. This is similar to the Miranda case, where there is really little doubt that the perpetrator was involved in criminal activity, but the constitution should provide him with the same rights as anyone else.

Re:Are warrants that hard to get? (0)

Anonymous Coward | about a year and a half ago | (#43410297)

The question is whether getting a warrant takes some time, and that this may impede actions to prevent criminal activity.

This is the answer:
"nor shall any person [...] be deprived of life, liberty, or property, without due process of law"

Re:Are warrants that hard to get? (0)

Anonymous Coward | about a year and a half ago | (#43410337)

The question is whether getting a warrant takes some time, and that this may impede actions to prevent criminal activity.

However, as someone else has said, the 4th Amendment states:

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

Given that the 4th Amendment specifies papers, it presumably should be interpreted in the modern age to include any form of written communication.
This is similar to the Miranda case, where there is really little doubt that the perpetrator was involved in criminal activity, but the constitution should provide him with the same rights as anyone else.

Ah, I love it when we wax poetically about our Constitution, as if it actually represented something other than a fucking tourist attraction. Ironically, if you were to try and break the inch-thick glass protecting what now amounts to an old piece of paper, you would be deemed a "terrorist", in which they would lock you up and throw away the key (all without a trial, and now legal)

Give it another 10 years, and having Rights will seem as distant as Auschwitz.

Re:Are warrants that hard to get? (0)

Anonymous Coward | about a year and a half ago | (#43411083)

The question is whether getting a warrant takes some time, and that this may impede actions to prevent criminal activity.

Drug deals != imminent attacks

Re:Are warrants that hard to get? (1)

IndustrialComplex (975015) | about a year and a half ago | (#43411377)

The question is whether getting a warrant takes some time, and that this may impede actions to prevent criminal activity.

That's not a question, it's an argument. Framing it like a question puts the burdon on the person answering it to prove that the time it takes to get a warrant isn't going to interfere in preventing crime.

In this case, they didn't even try to prevent criminal activity, they actively induced it by posing as the phone owner.

The myth of the ticking time-bomb always comes up in these warrant discussions. Given the large amount of authority already granted to the police to detain people, and the rather short amount of time it takes to get a warrant in a 'time critical' situation, I'm finding it hard to come up with situations that warrant the lack of a warrant due to 'running out of time'.

Not again... (0)

Anonymous Coward | about a year and a half ago | (#43409823)

I guess it needs to be said again: the US Constitution notwithstanding, PRIVACY IS AN ILLUSION. Get over it. You can't fight the power structure in any meaningful way, so just deal with it and act accordingly. Remember, we built the technological tools our overlords use so freely now. We keep electing lap-dog politicians who go along with it. It is our own fault.

You can file all the lawsuits and Freedom of Information Act requests you want. You can appeal prosecutorial and police misconduct all the way to the Gods of Olympus, and win a narrow ruling from time to time. You can thump your chests and bellow about "rights" and "privacy" all you want. Good luck with that. You might luck out and be the one-in-ten thousand cases the ACLU and EFF have time and money to fight for. Otherwise, just bend over and hope for a kiss when they're finished.

For us common folk, who wield neither power nor wealth, the slippery slope that began with J. Edgar Hoover's private files and McCarthyist fishing expeditions really bottomed out with the Patriot Act and its kindred "national security" and "crime fighting" laws.

The Fourth and Fifth Amendments don't mean a god-damned thing to all the spooks, cops, and prosecutors who serve the purposes of the State and its owners.

Barring a complete collapse of the existing social and economic orders, nothing is going to change it. They won. Accept your servitude gracefully and you will be rewarded. Otherwise, beware.

Anyone can read your texts anyway (1)

FridgeFreezer (1352537) | about a year and a half ago | (#43409879)

They're not sent encrypted or anything. Go read the GSM spec.

Re:Anyone can read your texts anyway (1)

mrbester (200927) | about a year and a half ago | (#43410003)

Neither is a letter (SMS also has an envelope). Yet letters are protected.

Re:Anyone can read your texts anyway (2)

Pi1grim (1956208) | about a year and a half ago | (#43410009)

Paper mail is not generally encrypted. Heck, when I'm talking to someone in my house I don't use assymetric crypto. It doesn't mean you are free to put bugs in my house. Intercepting SMS-es clearly requires intent and a number of manipulations. It's not like you can pick it up on a ham radio.

Re:Anyone can read your texts anyway (1)

MrKaos (858439) | about a year and a half ago | (#43410225)

Paper mail is not generally encrypted. Heck, when I'm talking to someone in my house I don't use assymetric crypto. It doesn't mean you are free to put bugs in my house. Intercepting SMS-es clearly requires intent and a number of manipulations. It's not like you can pick it up on a ham radio.

So true. I think, if the legal construct is the same as the one used in Australia anyway, this activity required an interception warrant - which was harder to get than a normal warrant.

I'm wondering if the phone was locked, as this guys phone obviously wasn't, would the cops require a normal warrant to unlock and search the phone - just as they would require a warrant to search a car or house.

Of course there is the tantalising possibility of requiring the officers fingerprint or face recognition photograph to temporarily unlock the phone...

Re:Anyone can read your texts anyway (1)

citizenr (871508) | about a year and a half ago | (#43410179)

Of course they are encrypted. Whole control channel is.

The Solution: Burnnote.com (5, Interesting)

splitsevin (953745) | about a year and a half ago | (#43410175)

This is an Android, [google.com] iOS [apple.com] and web app [burnnote.com] that just came out a few weeks ago. I've been playing with it and it's perfect for sending messages you don't want to exist after the person reads them.

Basically, it's a free messaging services where the messages self-destruct. They never get written do disk, just to volatile memory. If there's an outage messages will be lost, which sucks, but it does mean that they kind of mean business about privacy. The messages have a maximum shelf life of 30 days.

Here's a writeup in Techcrunch. [techcrunch.com]

I don't know if it's going to get that big but I realized the other day that even in my non-criminal, law-abiding life there are still a lot of things that I send to people via SMS that I probably should not have. Lots. Of. Things.

They have a tech FAQ which goes into detail about encryption, privacy, etc. [burnnote.com]

Re:The Solution: Burnnote.com (1, Insightful)

SternisheFan (2529412) | about a year and a half ago | (#43410793)

Nothing would stop someone from snapping a pic of the screen with the text displayed, and it would live on that way. Just saying.

Re:The Solution: Burnnote.com (1)

Zero__Kelvin (151819) | about a year and a half ago | (#43413657)

Also, nothing would stop someone from reading it aloud into a recorder, or copying it down on paper. You seem to have missed the point. It is not designed so that the recipient cannot access it. The design is intended to keep unintended recipients from getting it via third party channels such as an ISP, etc. through strong arm techniques or other methods.

When you've got BurnNote, you've got nothing. (0)

Okian Warrior (537106) | about a year and a half ago | (#43412827)

...no cash, no credit, no job history.

You're stuck in whatever city they decide to dump you in.

key is suspected (0)

Anonymous Coward | about a year and a half ago | (#43410891)

if there searching him for drugs ok, but you can't hide drugs in a test message, this goes beyond probable cause

Umm... (0)

Anonymous Coward | about a year and a half ago | (#43411045)

" 'text messages are the 21st Century phone call.'""

And if the cops were standing in the drug dealer's home, and a phone rang on the counter, they could answer it, pretend to be the drug dealer, and setup the caller just like they did with the text message.

There's no law breaking there...

Supreme Court of Canada has protected stored texts (2)

davecb (6526) | about a year and a half ago | (#43411497)

Canada now requires a wiretap warrant, which is harder to get than a regular one. See http://www.cbc.ca/news/technology/story/2013/03/27/technology-telus-text-messages-scc-decision.html [www.cbc.ca]

In a separate decision, the Ontario appeal court ruled that one needs to put a password/passcode on your phone to demonstrate that you have and expect privacy in the data it contains. See http://www.cbc.ca/news/canada/ottawa/story/2013/02/21/ottawa-cell-phone-users-beware.html [www.cbc.ca]

--dave

McDonalds Scholarship Program (0)

Anonymous Coward | about a year and a half ago | (#43414563)

Remember the 4th amendment says "and papers" it does not say "and private papers that no one else can see" This is sloppy police work, nothing more, and now the public is being forced to pay
McDonalds Scholarship Program [getmoneyforschool.com]

Who really cares? Prolly not dear reader. (1)

Impy the Impiuos Imp (442658) | about a year and a half ago | (#43411761)

I am upset about government sophistry that the Constitution does not apply.

This has been going on for 70 years in the realm of economics. Many support those abridgements, though, and we run around like headless chickens, sqwaking in a quasi-sentient manner.

What? (1)

ranpel (1255408) | about a year and a half ago | (#43412349)

Fuck man. This shit is starting to drive me crazy. If you're not the sender and you're not the recipient you're not fucking privileged. My house. My phone. My mail. My text. Get a fucking warrant. Christ.

The cops should be arrested and prosecuted (1)

Zero__Kelvin (151819) | about a year and a half ago | (#43413887)

I had this happen to me once. A cop stopped me and asked me what I was doing as I was walking down the street shortly after moving to a new location. I told him I was just walking, at which point he searched me and confiscated my phone. He then proceeded to attempt to make drug deals with my phone! He then refused to return it to me, stating that he "needed it a little longer". He made me tell him my home address and informed me that he would drop it in my mail box when he was done! He finally did so, and it was attached with a note that I needed to contact a detective, which I did. Said detective proceeded to question me about a particular person who lived near the place I was harassed. When I told him I had no idea what he was talking about he called me a liar and said: ""We'll be watching you." I responded: "Have a ball" and hung up the phone.

Luckily for me he didn't call any potential or current employers in my contact list, or anyone to whom I would have had a hard time explaining the events. The cops I just described should be locked in a cell with these cops, and for a very long time.
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