Police Push for Warrantless Searches of Cell Phones

February 22, 2010

CNet

By Declan McCullagh

When Christian Taylor stopped by the Sprint store in Daly City, Calif., last November, he was planning to buy around 30 BlackBerry handhelds.

But a Sprint employee on the lookout for fraud grew suspicious about the address and other details relating to Taylor’s company, “Hype Univercity,” and called the police. Taylor was arrested on charges of felony identity fraud, his car was impounded, and his iPhone was confiscated and searched by police without a warrant.

A San Mateo County judge is scheduled to hear testimony on Thursday morning in this case, which could set new ground rules for when police can conduct warrantless searches of iPhones, laptops, and similarly capacious electronic gadgets.

This is an important legal question that remains unresolved: as our gadgets store more and more information about us, including our appointments, correspondence, and personal photos and videos, what rules should police investigators be required to follow? The Obama administration and many local prosecutors’ answer is that warrantless searches are perfectly constitutional during arrests.

“There are very, very few cases involving smartphones,” Chris Feasel, deputy district attorney for San Mateo County, said in an interview on Wednesday. “The law has not necessarily caught up to the technology.”

Feasel said the county’s position is that a search of a handheld device that takes place soon after an arrest is lawful. “It’s an interesting issue that may decide the future of how courts handle these kinds of cases, especially smartphones and iPhones,” he said.

Attorneys for the Electronic Frontier Foundation, the San Francisco civil liberties group that’s representing Taylor, have asked the court to suppress any evidence obtained from the search of his iPhone. They say the search was “unconstitutional” because it was done without a warrant–and they say it also may have violated a 1986 federal law designed to protect the privacy of e-mail messages.

Privacy advocates say that long-standing legal rules allowing police to search suspects during an arrest–including looking through their wallets and pockets–should not apply to smartphones because the amount of material they store is so much greater and the risks of intrusive searches are so much higher. A 32GB iPhone 3GS, for instance, can hold approximately 220,000 copies of the unabridged text of Lewis Carroll’s Alice’s Adventures in Wonderland.

“Neither the search of (Taylor’s) vehicle nor the search of his iPhone was justified by any exception to the warrant requirement,” the EFF and its co-counsel, San Francisco attorney Randall Garteiser wrote in a brief filed earlier this month.

Sex photos drew federal lawsuit
Concerns about privacy are not merely hypothetical. In March 2008, Nathan Newhard was arrested on suspicion of drunken driving in Culpeper, Va., and his cell phone was seized. In the pictures folder of the cell phone were multiple pictures of Newhard and his then-girlfriend, Jessie Casella, nude in sexually compromising positions.

Newhard and Casella–at that point no longer a couple–filed separate civil rights lawsuits against Sgt. Matt Borders, who they said alerted the rest of the police department on the radio “that the private pictures were available for their viewing and enjoyment.” Newhard claimed that, as a result of the incident, he was nonrecommended for continued employment with the Culpeper school system, where he had worked before the arrest.

A federal judge in Virginia last year agreed that the police conduct was “irresponsible, unprofessional, and reprehensible” but said that Culpeper police officers could not be held legally responsible because they did not violate any clearly established constitutional rights. In addition, the court pointed out, the Fourth Circuit Court of Appeals had ruled that “officers may retrieve text messages and other information from cell phones and pagers seized incident to an arrest” to preserve evidence.

The problem for EFF and its co-counsel in the San Mateo County case is that, while the U.S. Supreme Court has not taken up the issue, a number of other courts have reached similar conclusions. In 2007, the Fifth Circuit concluded that police were permitted to conduct a warrantless search for call records and text messages during an arrest. So did the Seventh Circuit in a 1996 case dealing with information from numeric pagers (“It is imperative that law enforcement officers have the authority to immediately ’search’ or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.”)

“There’s a very good case that the police, as awful as it sounds, should be able to go through the contents of this phone,” said Adam Gershowitz, a professor at the South Texas College of Law who has written a paper on the topic. “Courts for the most part have held that a phone is like a container, a wallet or a purse.”

Then again, does an iPhone or Nexus One really have that much in common with a numeric pager? “The Fourth Amendment requires a search to be reasonable,” Gershowitz said. “At a certain point it just becomes so excessive as to be unreasonable, and we may be getting close to that point.”

From pagers to iPhones
The Fourth Amendment to the U.S. Constitution, of course, prohibits “unreasonable” searches and seizures.

Warrantless searches generally violate the Fourth Amendment. But the Supreme Court has allowed an exception permitting warrantless searches at the time that someone is being arrested, on the grounds that police should be allowed to look for weapons or items that could be linked to an alleged crime. A second exception to the warrant requirement is a “booking search” that allows police to establish an inventory of the defendant’s possessions.

The examination of Taylor’s iPhone by the Daly City police department was a two-step process. After Taylor was taken to the prisoner processing center, Daly City detective Joseph Bocci conducted what prosecutors describe as a “limited search of the iPhone.” Then, armed with a search warrant, Bocci completed an analysis of the phone’s contents.

Meanwhile, Taylor’s business seems to be languishing. The HypeUOnline.com blog, created after his arrest, features only three test posts. And the linked Twitter account features only a series of messages titled “2,218 New Followers Within 7 Days” and “Make Money On Twitter” that include links to a non-existent Web page. (Prosecutors say Taylor has prior convictions for forgery, fraud, and identity theft.)

Another reason why a search of Taylor’s phone was constitutional, said Feasel, the deputy district attorney, is because “of the transitory nature of that information, because iPhones do present interesting issues with regards to e-mails, and because the iPhone with the 3.0 operating system does have a feature known as a remote wipe.”

“The potential for destruction of evidence by a defendant further bolsters our argument regarding limited search incident to arrest,” Feasel said.

There is a dispute about whether the iPhone was protected with a password. San Mateo County said in court papers that there is no evidence “that the iPhone was locked.” Feasel said that if there had been a password, “there would need to be a search warrant.”

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545 People Responsible For All Of U.S. Woes

February 2, 2010

Orlando Sentinel Star

By Charley Reese

Politicians are the only people in the world who create problems and then campaign against them.

Have you ever wondered why, if both the Democrats and the Republicans are against deficits, we have deficits? Have you ever wondered why, if all the politicians are against inflation and high taxes, we have inflation and high taxes?

You and I don’t propose a federal budget. The president does. You and I don’t have the Constitutional authority to vote on appropriations. The House of Representatives does. You and I don’t write the tax code. Congress does. You and I don’t set fiscal policy. Congress does. You and I don’t control monetary policy. The Federal Reserve Bank does.

One hundred senators, 435 congressmen, one president and nine Supreme Court justices – 545 human beings out of the 235 million – are directly, legally, morally and individually responsible for the domestic problems that plague this country.

I excluded the members of the Federal Reserve Board because that problem was created by the Congress. In 1913, Congress delegated its Constitutional duty to provide a sound currency to a federally chartered but private central bank.

I excluded all but the special interests and lobbyists for a sound reason. They have no legal authority. They have no ability to coerce a senator, a congressman or a president to do one cotton-picking thing. I don’t care if they offer a politician $1 million dollars in cash. The politician has the power to accept or reject it.

No matter what the lobbyist promises, it is the legislation’s responsibility to determine how he votes.

A CONFIDENCE CONSPIRACY

Don’t you see how the con game that is played on the people by the politicians? Those 545 human beings spend much of their energy convincing you that what they did is not their fault. They cooperate in this common con regardless of party.

What separates a politician from a normal human being is an excessive amount of gall. No normal human being would have the gall of Tip O’Neill, who stood up and criticized Ronald Reagan for creating deficits.

The president can only propose a budget. He cannot force the Congress to accept it. The Constitution, which is the supreme law of the land, gives sole responsibility to the House of Representatives for originating appropriations and taxes.

O’neill is the speaker of the House. He is the leader of the majority party. He and his fellow Democrats, not the president, can approve any budget they want. If the president vetos it, they can pass it over his veto.

REPLACE SCOUNDRELS

It seems inconceivable to me that a nation of 235 million cannot replace 545 people who stand convicted — by present facts – of incompetence and irresponsibility.

I can’t think of a single domestic problem, from an unfair tax code to defense overruns, that is not traceable directly to those 545 people.

When you fully grasp the plain truth that 545 people exercise power of the federal government, then it must follow that what exists is what they want to exist.

If the tax code is unfair, it’s because they want it unfair. If the budget is in the red, it’s because they want it in the red. If the Marines are in Lebanon, it’s because they want them in Lebanon.

There are no insoluble government problems. Do not let these 545 people shift the blame to bureaucrats, whom they hire and whose jobs they can abolish; to lobbyists, whose gifts and advice they can reject; to regulators, to whom they give the power to regulate and from whom they can take it.

Above all, do not let them con you into the belief that there exist disembodied mystical forces like “the economy,” “inflation” or “politics” that prevent them from doing what they take an oath to do.

Those 545 people and they alone are responsible. They and they alone have the power. They and they alone should be held accountable by the people who are their bosses – provided they have the gumption to manage their own employees.

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Obamacare Income Tax Surcharge Is Unconstitutional

December 28, 2009

NewWithViews.com

By Phil Hart

The current attempt by today’s White House Administration to impose more big government on the American People by way of the “single payer option” for healthcare is as unconstitutional as gun confiscation or the elimination of free speech. Obamacare will be funded with a health care surcharge on the today’s income tax, which constitutes an unapportioned direct tax on the wages and salaries of the American People, not allowed by our Constitution.

How so you might ask? Good question. In order to answer that question, we must first review “Constitutional Taxation 101” a course that no lawyer ever took, nor has any judge, member of Congress nor has any PhD candidate in constitutional law. Law schools do not teach courses about the Constitution; they teach courses about litigated cases about the Constitution. The American People are nearly 100 percent illiterate, at all levels, when it comes to constitutional taxation. The higher the level of ignorance among the American people, the greater the amount of fleecing that takes place. t

To understand constitutional taxation, we must first understand the terms of the Constitution’s Framers. What is a direct tax? And what is an indirect tax? In 1787, those terms were widely used by the Framers as they debated and drafted our Constitution. These framers knew the meaning of these to terms. Very simply, a direct tax taxes a “noun”, and an indirect tax taxes a “verb”.

What is a tax on a noun? It is a tax on something that exists. A house exists. A tax on a house is a direct tax. The tax is levied on the house, and the tax must be paid. There is no getting out of paying a direct tax. Either the tax gets paid, or the house is eventually seized by the taxing authority. “Labor” is a noun too; and a tax on labor is a direct tax; it is a capitation tax, which must be apportioned.

The next question that begs to be answered is, “What is a tax on a verb?” This is a tax on the happening of an event. It is a tax on a choice a person makes. It is a tax that can be avoided, or the burden of the tax can be shifted to another. If you choose to buy gasoline, you choose to pay the excise tax on each gallon of gas. You could, of course, choose to ride your bicycle and avoid the tax. You pay the indirect tax because of choices you make.

If you are a bus company, you have to pay this excise tax when you put fuel into the fuel tank of your bus. However, you pass on the cost of the tax by charging more for the bus tickets; and the customers of the bus company pay the tax “indirectly”. Again, this tax can be avoided if the bus patron chooses not to travel, or to travel by some other means. An indirect tax is also a tax on a privilege, like operating a business in a corporate form. One chooses to do business as a corporation, and in doing so, chooses to pay the tax levied on the government granted privilege of limited liability and indefinite corporate existence.

We refer to Adam Smith, author of Wealth of Nations (1776), to support our above definitions. Adam Smith began writing his timeless work in 1765. By the time the Constitution was written, in 1787, Wealth of Nations was in its sixth edition. Every one of the Framers of the Constitution was familiar with Smith’s work. Here is what Adam Smith, the eighteenth century guru of economics, had to say about direct and indirect taxes:

“The impossibility of taxing the people, in proportion to their revenue, by any capitation, seems to have given occasion to the invention of taxes upon consumable commodities. The state not knowing how to tax, directly and proportionally, the revenue of its subjects, endeavors to tax it indirectly by taxing their expense, which, it is supposed, will in most cases be nearly in proportion to their revenue. Their expense is taxed by taxing the consumable commodities upon which it is laid out.” Adam Smith, Wealth of Nations, book V, pg. 541 (Prometheus Books, Amherst, New York, 1991) (1776).

We also find the following Adam Smith quote in Wealth of Nations, “Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labor.” Adam Smith, Wealth of Nations, id. at pg. 540.

A Capitation tax is a tax on wages and salaries, so says Adam Smith. Such a tax must meet the constitutional requirement that it be apportioned among the people, such that each person pays the same amount of tax.

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Obama’s Mission to Save Planet From Global Warming Could Violate Constitution

December 18, 2009

Fox News

President Obama’s mission to save the planet from global warming could end up trampling on the U.S. Constitution, critics say.

When Obama arrives in Copenhagen Friday, he is hoping to cut a deal on a new global-warming agreement. Even though the conference is not likely to produce a legally binding deal, critics say if the president signs an international climate treaty pledging reductions in carbon emissions, he will violate the Constitution.

“President Obama cannot bind the American people to job killing international agreements on climate change without the advice and consent of the United States Senate,” former Republican House Speaker Newt Gingrich wrote Wednesday at the conservative Web site Human Events.

The Constitution states that the president cannot sign treaties without the approval of two-thirds of the Senate.

But with climate change legislation stuck in the Senate after the House passed its version earlier this year, the White House is flirting with the possibility of taking action without Congress.

Last week, on the day the climate summit opened in Denmark, the EPA formally declared that greenhouse gases including carbon dioxide are a danger to human health — a finding that could pave the way for massive new regulations under the Clean Air Act for cars, power plants, crude-oil refineries and chemical plants.

While administration officials have said they would prefer Congress take action on regulating greenhouse gas emissions, Republicans fear the EPA, buoyed by its latest finding, is prepared to act unilaterally.

Democratic Rep. Ed Markey of Massachusetts, co-author of the House climate change bill, told Fox News that the Obama administration has the power to act without Congress through the EPA.

“It’s no longer a question of legislation or no legislation,” he told Fox News’ Chris Wallace. “It is now a question of legislation or regulation. The EPA can act.

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Blue Cross Thinks Health Care Reform is Unconstitutional

December 7, 2009

The Raw Story

By Sahil Kapur

As the battle for health care reform rages on in the Senate, the powerful insurance consortium Blue Cross Blue Shield appears to have embraced some rather unorthodox methods for achieving its goals.

After months of fierce insurance industry opposition to the bill, Blue Cross is working secretively with conservative front group American Legislative Exchange Council to use the issue of states’ rights as a pretext to declaring health reform unconstitutional.

ALEC has for months worked to spread the notion that all the proposals put forth by President Obama and Democrats — including industry regulations and a public option — violate states’ rights. The group wrote a resolution declaring as much this summer.

A senior executive at the Blue Cross Blue Shield Association (BCBS’ lobbying group) has admitted to Think Progress she played a vital role in crafting ALEC’s resolution, and insurance lobbyists have since worked in tandem with the group to promote it.

Numerous Republican lawmakers, including Texas Gov. Rick Perry, have co-opted the resolution, and amendments in its spirit have been reportedly introduced in at least half a dozen states.

The insurance industry has spoken with a largely singular voice of opposition to the current reform effort. It has released various studies and reports promising that insurance premiums will rise and that the legislation will hurt consumers. Their claims have been widely challenged or debunked, and the industry has been accused of pushing their financial agendas at the expense of regular people.

The Huffington Post reported on Friday that Aetna, a large and influential insurance firm, is preparing to rescind coverage for 650,000 customers by raising prices, in an effort to achieve higher profit margins.

Former insurance executive Wendell Porter, who now favors reform, declared that private insurers have become “consumed by rising profits, grotesque executive salaries, huge administrative expenses, the cost of weeding out people with pre-existing conditions and claims review designed to wear out patients with denials and disapprovals of the care they need the most

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Neocon Trying to Oust Ron Paul

October 28, 2009

InfoWars

By Kurt Nimmo

Tim Graney of Katy, Texas, has announced a bid to unseat Ron Paul in the 14th congressional district of Texas. According to FortBendNow, a news website in Houston, Graney is a small business owner and this is his first political campaign. Graney told FortBendNow the district needs a new voice in Congress, particularly in the area of foreign policy.
 
Ron Paul adamantly opposes the invasions and occupations of Iraq and Afghanistan. “I believe our founding fathers had it right when they argued for peace and commerce between nations, and against entangling political and military alliances. In other words, noninterventionism,” Paul wrote in 2007. He believes Congress needs to reassert its authority over foreign policy. The Constitution makes no distinction between domestic and foreign matters, Paul insists. “Policy is policy, and it must be made by the legislature and not the executive.”

“I am a fiscal conservative, but I do not support Ron Paul’s weak foreign policy views, nor do I support his do whatever you want ultra-Libertarian views that conflict with our American values,” Graney said.

In other words, Graney subscribes to the unitary executive doctrine of an imperial presidency. The Constitution makes a distinction between the power of the Congress and that of the president by stating that Congress shall “make all laws” and the president shall “take care that the laws be faithfully executed.”

Graney apparently believes invading small countries and killing large numbers of people — more than a million so far in Iraq — represents “American values.”

Ron Paul is not an “ultra-Libertarian” (ultra-libertarianism would be defined as anarchism). Paul is a mainstream Libertarian. Mainstream Libertarians support free market capitalism by advocating a right to private property, minimal government regulation of property, minimal taxation, and rejection of the welfare state, all within the context of the rule of law.

According to Graney, Paul’s mainstream Libertarianism is not consistent with the beliefs of residents in the district. Mr. Graney apparently believes the residents support undeclared and illegal wars, unchecked federal power over the states, federalized local police, and an astronomical federal debt that threatens to impoverish them and their children.

It is not clear if Mr. Graney’s campaign is supported by defenders of the Federal Reserve and the bankers. In February, Ron Paul introduced HR 1207, a bill to audit the Federal Reserve. If enacted, the bill would enable the Comptroller General of the GAO to audit the Federal Reserve system before the end of 2010. HR 1207 now has 307 sponsors. Committee hearings were held on September 25.

On October 12, the neocon Republican Lindsey Graham, a senator from South Carolina, told a town hall meeting he would not allow Paul to “hijack” the Republican Party. Graham supports a big government climate bill “because it could mean good business,” according to Politico. He told Politico he backs “combining an energy independence bill with one to control carbon dioxide emissions.”

“I am more resolute than ever to help steer our nation back onto the path of common-sense energy initiatives,” said Graney.

Ron Paul has signed the “No Climate Tax Pledge” sponsored by Americans for Prosperity. The pledge opposes “legislation relating to climate change that includes a net increase in government revenue” through taxation.

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Obama Attacks 1st Amendment

October 8, 2009

The Weekly Standard

By Anne Bayefsky

The Obama administration has marked its first foray into the UN human rights establishment by backing calls for limits on freedom of expression. The newly-minted American policy was rolled out at the latest session of the UN Human Rights Council, which ended in Geneva on Friday. American diplomats were there for the first time as full Council members and intent on making friends.

President Obama chose to join the Council despite the fact that the Organization of the Islamic Conference holds the balance of power and human rights abusers are among its lead actors, including China, Cuba, and Saudi Arabia. Islamic states quickly interpreted the president’s penchant for “engagement” as meaning fundamental rights were now up for grabs. Few would have predicted, however, that the shift would begin with America’s most treasured freedom.

For more than a decade, a UN resolution on the freedom of expression was shepherded through the Council, and the now defunct Commission on Human Rights which it replaced, by Canada. Over the years, Canada tried mightily to garner consensus on certain minimum standards, but the “reformed” Council changed the distribution of seats on the UN’s lead human rights body. In 2008, against the backdrop of the publication of images of Mohammed in a Danish newspaper, Cuba and various Islamic countries destroyed the consensus and rammed through an amendment which introduced a limit on any speech they claimed was an “abuse . . . [that] constitutes an act of racial or religious discrimination.”

The Obama administration decided that a revamped freedom of expression resolution, extracted from Canadian hands, would be an ideal emblem for its new engagement policy. So it cosponsored a resolution on the subject with none other than Egypt–a country characterized by an absence of freedom of expression.

Privately, other Western governments were taken aback and watched the weeks of negotiations with dismay as it became clear that American negotiators wanted consensus at all costs. In introducing the resolution on Thursday, October 1–adopted by consensus the following day–the ranking U.S. diplomat, Chargé d’Affaires Douglas Griffiths, crowed:

“The United States is very pleased to present this joint project with Egypt. This initiative is a manifestation of the Obama administration’s commitment to multilateral engagement throughout the United Nations and of our genuine desire to seek and build cooperation based upon mutual interest and mutual respect in pursuit of our shared common principles of tolerance and the dignity of all human beings.”

His Egyptian counterpart, Ambassador Hisham Badr, was equally pleased–for all the wrong reasons. He praised the development by telling the Council that “freedom of expression . . . has been sometimes misused,” insisting on limits consistent with the “true nature of this right” and demanding that the “the media must . . . conduct . . . itself in a professional and ethical manner.”

The new resolution, championed by the Obama administration, has a number of disturbing elements. It emphasizes that “the exercise of the right to freedom of expression carries with it special duties and responsibilities . . .” which include taking action against anything meeting the description of “negative racial and religious stereotyping.” It also purports to “recognize . . . the moral and social responsibilities of the media” and supports “the media’s elaboration of voluntary codes of professional ethical conduct” in relation to “combating racism, racial discrimination, xenophobia and related intolerance.”

Pakistan’s Ambassador Zamir Akram, speaking on behalf of the Organization of the Islamic Conference, made it clear that they understand the resolution and its protection against religious stereotyping as allowing free speech to be trumped by anything that defames or negatively stereotypes religion. The idea of protecting the human rights “of religions” instead of individuals is a favorite of those countries that do not protect free speech and which use religion–as defined by government–to curtail it.

Even the normally feeble European Union tried to salvage the American capitulation by expressing the hope that the resolution might be read a different way. Speaking on behalf of the EU following the resolution’s adoption, French Ambassador Jean-Baptiste Mattéi declared that “human rights law does not, and should not, protect religions or belief systems, hence the language on stereotyping only applies to stereotyping of individuals . . . and not of ideologies, religions or abstract values. The EU rejects the concept of defamation of religions.” The EU also distanced itself from the American compromise on the media, declaring that “the notion of a moral and social responsibility of the media” goes “well beyond” existing international law and “the EU cannot subscribe to this concept in such general terms.”

In 1992 when the United States ratified the main international law treaty which addresses freedom of expression, the government carefully attached reservations to ensure that the treaty could not “restrict the right of free speech and association protected by the Constitution and laws of the United States.”

The Obama administration’s debut at the Human Rights Council laid bare its very different priorities. Threatening freedom of expression is a price for engagement with the Islamic world that it is evidently prepared to pay.

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