Category Archives: Privacy

Cell Phone Searches

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The Supreme Court ruled Wednesday police must almost always obtain a warrant before searching mobile devices seized when arresting someone….

Chief Justice John Roberts, writing the Court’s unanimously held opinion, said

Modern cellphones aren’t a technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.”

Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant[.]

With this ruling the Court, among other things, placed the contents of cell phones outside the permissible warrantless searches allowed pursuant to an arrest that’s for the safety of the police (to ensure, for instance, the arrestee has no weapons or other devices that he could use to harm the arresting officer(s) and/or to attempt escape) and to safeguard related evidence until a warrant otherwise could be obtained.

Someone wrote earlier that this is the ruling that was warranted.

The opinion can be read here.

IRS’ Computers

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During Monday night’s House Oversight Committee hearing, IRS Commissioner John Koskinen tried to deflect blame for the missing Lerner Emails by claiming that the IRS’ computer systems were outdated, obsolete, prone to PC hard drive crashes, and it’s all due to lack of funding:

It is not unusual for computers anywhere to fail, especially at the IRS in light of the aged equipment IRS employees often have to use in light of the continual cuts in its budget these past four years. Since January 1 of this year, for example, over 2,000 employees have suffered hard drive crashes.

The IRS has, despite all those enormous budget cuts, a $1.8 billion IT budget. Regarding those obsolete systems, The New York Times had some thoughts:

After five years, a project to replace the Internal Revenue Service’s aging file-keeping computer system with modern technology is so far behind schedule that the IRS has told the prime contractor that unless it improves its performance by the end of the month [31 December 2003], the government may have no choice but to fire it.

The project, which was expected to cost $8 billion when completed, has spent less than $1 billion so far, but it is already 40% over budget for what it has done, according to the IRS Oversight Board, an independent watchdog body that Congress created in 1998.

And this:

”This is not about a one-time delay,” said Larry Levitan, chairman of the Oversight Board. ”Every single major project under way experienced a significant delay in time and overrun in budget—not two or three out of five, but five out of five. What we have here is a five-year track record of absolute consistency of cost overruns and delayed deliveries.”

In fact, some parts of the computer system upgrade project had fallen 27 months behind schedule in those five years.

There’s this update from Bloomberg:

The upgrade, which will allow the IRS to process the returns on a daily instead of a weekly cycle during the 2012 filing season, is part of a business systems modernization program, begun 12 years ago, that also includes overhauls of the agency’s electronic tax filing and data retrieval systems.

To get even this far, the IRS had to dumb down the project and not include, as originally planned and scheduled, retirement plan and business tax records in the database upgrade part of their project.

Of course, Turn-around Artist and part-time IRS Commissioner John Koskinen knows this history, but that’s a small point here. The larger point is that the IRS has had lots of time and lots of money with which to upgrade its systems—including the PCs its personnel have on their desk, PCs (and OEM hard drives) that cost jingle money compared to their systems upgrade project. In fact, were I to buy an adequate PC from Dell (adequate: no knock on Dell, meaning satisfactory for the job) for each of the 89,500 IRS employees, it would cost me just $125 million out of that $1.8 billion budget, or about 7% of the budget—and this would be expense that wouldn’t need to be repeated for four or five years.

Koskinen’s attempt to blame his “lost” emails on poor Congressional budget decisions is just another example of his, and the IRS’, general mendacity.

Aside: how well were the data on those 2,000 hard drives backed up?

The Courts Get Another One Right

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Quartavius Davis was convicted of robbing, in 2010, seven stores in and around Miami and sentenced to roughly 162 years in prison. His prosecutors based their case, in large part, on cellphone records that placed Davis near the scene.

The evidence included records of the cell towers to which their phones were connected when they placed and received calls, according to court documents.

These data were obtained solely on the basis of a claim “that the records were relevant and material to an ongoing investigation.”

The 11th Circuit demurred. Writing for a unanimous court, Judge David Sentelle wrote in part

[I]t cannot be denied that the Fourth Amendment protection against unreasonable searches and seizures shields the people from the warrantless interception of electronic data or sound waves carrying communications. The next step of analysis, then, is to inquire whether that protection covers not only content, but also the transmission itself when it reveals information about the personal source of the transmission, specifically his location.

And [emphasis added]

One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts.
…
There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. [W]e do not see…Davis’s location outside his expectation of privacy.

And ultimately,

Cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.

Yewbetcha.

A 4th Amendment warrant requires a showing of probable cause, a rather stricter standard than just the government claiming an interest. However, the matter isn’t closed with this ruling; the 5th and 6th Circuits have ruled that warrants are not needed in such cases. This points to an eventual Supreme Court case.

The 11th Circuit’s opinion can be read here.

VA Union Mendacity

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This tale comes from Kimberly Strassel in her recent op-ed in The Wall Street Journal.

The Federal Labor Relations Authority, the agency that mediates federal labor disputes, earlier this month ruled in favor of this union president [Janice Perry of local lodge 1798 of the National Federation of Federal Employees], in a dispute over whether she need bother to show up at her workplace—the Veterans Affairs Medical Center in Martinsburg, W.Va. According to FLRA documents, this particular VA employee is 100% “official time”—D.C. parlance for federal employees who work every hour of every work day for their union, at the taxpayer’s expense.

In April 2012, this, ahem, VA “employee” broke her ankle and declared that she now wanted to do her nonwork for the VA entirely from the comfort of her home. Veterans Affairs attempted a compromise: Perhaps she could, pretty please, come in two days a week? She refused, and complained to the FLRA that the VA was interfering with her right to act as a union official.

The FLRA’s decision can be seen here.

There are two solutions to this. Disbanding the VA is one. That would eliminate the union’s ability to mishandle our veterans altogether. The other, now come to light, is to eliminate the FLRA altogether. It’s plainly become much too politicized—unionized—to be able to do its statutory job fairly, objectively, and honestly.

Another Thought on Privacy

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David Kravets, writing in ars technica had one concerning a couple of cases coming before the Supreme Court dealing with the legitimacy of warrantless searches of cell phones and other digital devices pursuant to an otherwise legitimate arrest.

President Barack Obama’s administration and prosecutors from states across the country have lobbied for police officers to be able to search arrestees’ gadgets—at or about the time of arrest—without a warrant. Such action, however, demands an examination of the Fourth Amendment’s protection against “unreasonable searches and seizures.” If nine out of 10 American adults own mobile phones and the devices have advanced to become virtual extensions of our personal and private lives, at what point does law enforcement’s access to their call logs, photos, and cloud-hosted data become “unreasonable” invasions of constitutionally protected privacy?

Indeed. It’s also necessary to keep such ancillary searches in context. The courts long have held that when a man is arrested, the police can pat him down, even do cursory inspections of his car if that’s where he was arrested—look in the trunk, for instance—to be sure he has no weapons that would enable him to harm the arresting officer(s) or devices that would facilitate him attempting to escape from them.

It’s clear, though, or it should be clear, that the electronic contents of a cell phone or of a laptop or…can present no danger of either of those possibilities.

It’s also apparent that the two characters in the cases before the Supreme Court are unsavory at best. It’s also clear that the cursory search of the car David Riley was driving at the time of his arrest was both legitimate and fruitful—the police found weapons secreted in it. However, the persons’ unsavoriness is not an excuse for proceeding with the illegitimate, in my view, searches of their cell phones—there were no dangers to be found in those electrons; a search warrant should have been obtained before the searches conducted.

If such warrantless searches are allowed, what’s to stop government from expanding the scope to the less unsavory among us? To the entirely savory, other than those of whom government disapproves (IRS, anyone)?

There wasn’t even any danger of evidence contained in the phones being destroyed before the warrants could be issued; the cells were safely in police custody.

In one of the two cases, Solicitor General Donald Verrilli Jr made explicit a part of the Federal government’s rationale for such warrantless searches:

[J]ustices “should not deprive officers of an investigative tool that is increasingly important for preserving evidence of serious crimes based on purely imaginary fears that police officers will invoke their authority to review drug dealers’…’appointments with marital counselors’ or armed robbers’ ‘apps to help smokers quit.'” (Verrilli was citing examples lodged with the court by the Center for Democracy & Technology.)

Yet in making this argument, Verrilli has shown his utter lack of understanding of our social compact. Our Declaration of Independence and our Constitution are designed to carry out exactly that prior restraint, because ultimately government cannot be trusted to restrain itself. This is what John Adams was talking about when he wrote to his wife

Liberty, once lost, is lost forever.