More bad news on the privacy front pushes us closer to an police state in an electronic age. Monday, in a 5-2 split decision [PDF], the California Supreme Court ruled that police do not need a warrant before searching cell phone text messages of someone who has been arrested. In fact, the court determined that an arrested person has no privacy rights over any personal belongings they're carrying on them when taken into custody. Police are allowed to seize and examine anything they find in the arrestee's possession.
The court's reasoning was based on previous decisions in the 1970s when it was decided legal for officers to search cigarette packages and clothing of an arrested person without a search warrant.
But in a dissenting opinion, Justice Kathryn Werdegar warned that examining a mobile phone without a warrant may violate the U.S. Constitution's Fourth Amendment.
Justice Werdegar wrote:
A contemporary smartphone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents, as well as records of the user's telephone calls and Web browsing. Never before has it been possible to carry so much personal or business information in one's pocket or purse. The potential impairment to privacy if arrestees' mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great...
The majority's holding... apparently allow[s] police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution.
This ruling upheld the drug conviction of Gregory Diaz, arrested in 2007 after participating in a drug deal. An officer took Diaz's cell phone from his pocket, looked through his text messages 90 minutes later, and found the message "6 4 80" which meant six ecstasy pills for $80. Diaz pleaded guilty, was placed on probation and appealed the search.
Forbes' Kashmir Hill noted that in December, however, the Ohio Supreme Court ruled a cell phone is much more like a laptop and therefore entitled to greater privacy protection...as in needing a warrant to search it. The Ohio decision took into account the vast and private data that can be stored on a smart phone, making a cell phone much more than a cigarette pack or purse "container" and requiring a warrant before being searched.
Most of us don't intend to be arrested, but where would you rather use your smartphone - warm and sunny California or cold and snowy Ohio? The California ruling seems to step America closer to an electronic police state.
Rodrigue Tremblay, professor emeritus of economics at the University of Montreal, wrote, "And today, modern governments have all the tools to transform their country into a creeping police state, more so now then ever before, in this electronic age. They have access to information technology that previous full-fledged "police state" governments could only have dreamed about... George Orwell must be turning in his grave." Tremblay warns, "CYBER BIG BROTHER would know it all and it will be watching you."
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Ms. Smith (not her real name) is a freelance writer and programmer with a special and somewhat personal interest in IT privacy and security issues. Smith has a diverse background in information technology, programming, web development, IT consulting, and information security. She focuses on the unique challenges of maintaining privacy and security, both for individuals and enterprises. She has worked as a journalist and has also penned many technical papers and guides covering various technologies. Smith is herself a self-described privacy and security freak.
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