Friday, May 27, 2011

iPhone Spies

Atoms vs. Bits: Your Phone in the Eyes of the Law (The Atlantic, 26 April 2011) - On the last Friday in November in 2007, James Nix was riding shotgun in a car driving through the streets of Albany, Oregon, a freeway passthrough town between Salem and Eugene. Nix had several outstanding warrants for possession of a controlled substance, endangering the welfare of a minor and violating his parole on an earlier drug conviction. Earlier that day, an Albany police officer saw Nix take a call on his cell and then immediately after sell drugs to someone in classic hand-to-hand, money for drugs, switch. So, he’d tipped off another officer by the name of Jones to watch for the car. After investigating Nix for several weeks, they were going to make an arrest. Officer Jones pulled Nix’s friend over in a lawful traffic stop and Nix bolted. He didn’t get far before being apprehended, though, and Jones patted him down, finding 22 clear plastic baggies often associated with drug dealing, $370 in cash and a cellphone. Jones said while he counted the money, the phone rang “continually.” With enough evidence to make an arrest for selling drugs, Jones called Nix’s investigators, who told him to deliver the phone to the Albany PD’s mobile phone expert. Without a warrant, the forensics analyst searched the entire contents of the phone and “found text messages that he believed were drug related and images ‘consistent with methamphetamine.’” They were subsequently used against Nix in a trial which found him guilty. Ask yourself: Do you think it was OK for the police to search the contents of Nix’s phone without a warrant? It’s a complicated issue. We have rules against warrantless searches for good reason. On the other hand, law enforcement doesn’t want to lose the ability to do everything it can to catch people they think are criminals. Here’s the legal issue at the heart of the case, which will be argued before the Oregon Supreme Court next week. We all know that the Fourth Amendment to the Constitution protects everyone from “unreasonable” search and seizure. Since the 18th century, though, many cases have touched on how to define what is and is not unreasonable. Under English common law, it was generally considered reasonable for the police to search you while you were being arrested. It became known as the “search incident to arrest exception” and has been around in American law for well over 100 years. The big change to the exception came in the 1969 case Chimel vs. California, which laid out a key exception to the exception. Namely, if a suspect was arrested in his home, the police couldn’t search his whole house. As Wikipedia summarizes it, the police could only search, “the area within the immediate control of the suspect,” or as James Nix’s attorney Bronson James more colorfully put it, there is a “wingspan rule.” If you can reach it, the cops can search it.

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