Department Of Justice Seeks Legal Power To Keep Detainees From Erasing Their Smartphones

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Close up of a man using mobile smart phone

U.S. law enforcement is petitioning the Supreme Court for the legal authority to snatch smartphones from detainees without a warrant and peruse the phones’ contents before their owners can activate a “kill switch” — an option on some smartphones that completely wipes or encrypts all their data.

It’s a request that’s loaded with irony. Law enforcement, ostensibly advocating for victims’ rights, originally had helped to persuade the smartphone industry to develop and deploy the kill switch technology, in order to give phone owners whose devices had been stolen a means of denying thieves access to any of their personal data.

But a kill switch can just as easily be used by the target of an officer’s suspicion to wipe data — and with it, potentially incriminating evidence — from a smartphone before its owner allows a cop to play with it. What the cops are asking the Supreme Court to do is to rule that a search warrant is not required in order for a cop to demand on-the-spot access to a private citizen’s smartphone, along with everything it contains.

According to Wired, the U.S. Department of Justice is leading the petition, arguing that suspects who wipe their phones are obstructing investigations and heightening law enforcement’s suspicion of their guilt.

Wired reported last week:

In a brief filed to the U.S. Supreme Court yesterday [April 22] in the case of alleged Boston drug dealer Brima Wurie, the Justice Department argues that police should be free to warrantlessly search cellphones taken from suspects immediately at the time of arrest, rather than risk letting the suspect or his associates lock or remotely wipe the phone before it can be searched.

The statement responds to briefs made to the court by the Center for Democracy and Technology and the Electronic Frontier Foundation arguing that warrantless searches of cellphones for evidence represents a serious violation of the suspect’s privacy beyond that of a usual warrantless search of a suspect’s pockets, backpack, or car interior.

On the other side of the petition is the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), along with other civil libertarians, who argue that law enforcement cannot have it both ways.

“You have this weird scenario where law enforcement has demanded remote wiping be deployed, and now they’re using that to also justify warrantless searches,” ACLU principal technologist Chris Soghoian told Wired. “… What matters isn’t just the information, but where they get it from. They’re saying that there are certain things on your phone that have less protections than others under the law, which is crazy.”

Opponents also point out that there’s no evidence that phone wiping is, at present, a true obstacle to law enforcement investigations. Rather, they argue, it’s simply the latest target in a long progression of the state’s slow encroachment on individual freedoms.

Personal Liberty

Ben Bullard

Reconciling the concept of individual sovereignty with conscientious participation in the modern American political process is a continuing preoccupation for staff writer Ben Bullard. A former community newspaper writer, Bullard has closely observed the manner in which well-meaning small-town politicians and policy makers often accept, unthinkingly, their increasingly marginal role in shaping the quality of their own lives, as well as those of the people whom they serve. He argues that American public policy is plagued by inscrutable and corrupt motives on a national scale, a fundamental problem which individuals, families and communities must strive to solve. This, he argues, can be achieved only as Americans rediscover the principal role each citizen plays in enriching the welfare of our Republic.

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