California Supreme Court Impales the Fourth Amendment

Previously, you'd only get this sort of treatment if you were a parolee. Known dissidents beware: cops in California can search your cell phone if you get arrested.

Delete the cockshots, people!


If you get arrested in California, better hope there are no incriminating texts or e-mails or sensitive data stored on your phone.

On Monday, the California Supreme Court ruled that police in that state can search the contents of an arrested person's cell phone.

Citing U.S. Supreme Court precedents, the ruling contends that "The loss of privacy upon arrest extends beyond the arrestee's body to include 'personal property ... immediately associated with the person of the arrestee' at the time of arrest."

Two justices (Kathryn Mickle Werdegar and Carlos Moreno) dissented from the majority opinion: "In light of the vast data storage capacity of smartphones and similar devices, the privacy interests that the federal Constitution's Fourth Amendment was intended to protect would be better served by a rule that did not allow police 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 war against your privacy is in full force and has been for quite some time. What precautions are you taking to protect yourself?

Sadly, the Fourth Amendment can no longer do it for you.

However, Ars Technica told a different story in December. Dick-growing pill mogul Steven Warshak triumphed against Big Brother and won one for the Constitution when the Sixth Circuit Court of Appeals ruled the government needs a search warrant to read your e-mails but don't tell California cops that.

The government must obtain a valid search warrant before infiltrating your e-mail in a criminal investigation, the Sixth Circuit Court of Appeals has ruled. The appeals court ruled Tuesday on US v. Warshak, noting that e-mail "requires strong protection under the Fourth Amendment," and that law enforcement can't demand for an ISP to give up e-mail with just a court order.

The story behind the case goes back to 2006, when the Feds gained access to e-mail belonging to Steven Warshak, the man behind the "natural male enhancement" product Enzyte. At the time, Warshak had already incurred the wrath of the FTC, which said that there was no evidence that his products worked and found that his company routinely signed up callers for a monthly subscription plan that was difficult to cancel. Soon the FBI and the Postal Inspectors got on Warshak's case for mail and wire fraud as well.

The government was able to gain access to Warshak's e-mail thanks to a court order—a move that requires a significantly lower burden of proof than a full-on warrant. Warshak pushed back on the grounds that the search violated his Fourth Amendment rights. The Sixth Circuit Court of Appeals eventually ruled in Warshak's civil case that his e-mail was indeed Constitutionally protected and that the ability to get the court order without notification was no longer allowed.

"Given the fundamental similarities between e-mail and traditional forms of communication, it would defy common sense to afford e-mails lesser Fourth Amendment protection," wrote the court.

Did California not get that memo?

Jr Deputy Accountant

Some say he’s half man half fish, others say he’s more of a seventy/thirty split. Either way he’s a fishy bastard.


beebs said...

The police weasels are jonesing on power.

Encryption is the answer unless you keep a clean phone.