When humans offload most of who we are onto handheld devices, the fifth amendment will not be necessary, just take the phone and query it for thought histories of the guilty, er, suspect.
Torturing a suspect for self incriminating details: not ok. Breaking encryption on a phone, bypassing security password lockouts and accessing memory history: ok!
I think he is implying these are the two tactics police used to obtain evidence; the old style is active coercion (which is illegal but fairly common in police arrests and interrogation), the new style is querying phone, email, device records, decrypting harddrives (is now potentially legal).
By 'coercion', I don't think he meant "bludgeoning". When the police tell you that you've already been identified by a witness, when it is a complete lie, I take that to be coercion. Or when they inflict emotional turmoil by arresting you publicly, handcuffing you in public, running your prints in a police station, and treat the innocent as guilty in order to 'coerce' them into an unstable state of mind. Coercion is inflicting duress, which doesn't have to be similar to physical torture, imo.
"tell us every crime you have ever committed" is a question you can plead the 5th on in court. But the phone will one day make it unnecessary to ask the person, all you need is the brain's loyal assistant. I personally don't care about human rights so everything is fine here.
Coercion is illegal? I've seen coercion used in every police investigation I've ever seen. It's so common I had no idea anyone thought it was illegal. Police isolate and begin lying to suspects immediately after they're identified.
Not only that, but if I'm reading the article correctly the ruling only refers to turning on the phone in order to find out its number. They didn't actually rifle through the phone's phone-book, call history, or anything of the sort.
This quote FTA extrapolates the definition to include all kinds of data:
"So opening the diary found on the suspect whom the police have arrested, to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested, clearly is permissible...
these are searches incident to arrest. they can already search anything found on your person when they arrest you. it makes sense that they can search your phone, which is an item found on your person.
IANAL, but several sources declare that the opening of locked containers incident to arrest is determined by local enforcement policy and NOT by precedent or federal law:
yeah, your sources say that the police, if they have consistent policies about searching arrestees containers, they can search any container they find that is locked.
Posner's opinion is strange. Robinson (the main precedent) held that the 4th amendment permits the police to search any property on a person incident to arrest.
The tension is that the case is almost 40 years old, well before cell phones, or any other technology that let someone carry around every detail of their life with something the size of a pad of paper.
So one side (the government) says: "Robinson is clear. We can search the phone."
The other side says: "No, cell phones are different. We need a precedent that makes sense in the 21st century."
This binary can-search/can't-search is the "bright line" rule Kerr talks about. Posner comes out of left field and argues as if it's some kind of sliding scale. NEW RULE.
Robinson is only about property on the arrestee. There are other cases about property in the car but not on the arrestee, e.g., Gant.
Both Gant and Robinson have give really clear rules, and Posner does a good job muddling it all up. It's sort of funny coming from a so-called "law and economics" guy -- you'd think all else being equal, you'd prefer opinions with clear rules so as to lower the costs of administration.
As I understand it, Orin's position is that cell phones are like cars (so Gant is controlling), not like cigarette containers (so Robinson is controlling).
Gant says that police can search your car incident to an arrest if they believe it contains evidence of the crime for which you were arrested.
Applying that rule is a principled way to avoid the problem with Robinson and cell phones, i.e., you get arrested for speeding and the police download your whole browser history.
16 comments
[ 3.1 ms ] story [ 27.6 ms ] threadTorturing a suspect for self incriminating details: not ok. Breaking encryption on a phone, bypassing security password lockouts and accessing memory history: ok!
"So opening the diary found on the suspect whom the police have arrested, to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested, clearly is permissible...
IANAL, but several sources declare that the opening of locked containers incident to arrest is determined by local enforcement policy and NOT by precedent or federal law:
http://www.fbi.gov/stats-services/publications/law-enforceme...
http://www.llrmi.com/articles/legal_questions/4-aug09.shtml
http://www.jonesdayappellate.com/files/CaseStudy/4aaa6c32-8b... [PDF] (Google Quick View of PDF: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&... )
http://www.bernardbrody.com/law-v-technology-can-the-police-...
http://findarticles.com/p/articles/mi_m2194/is_n1_v65/ai_184...
Posner's opinion is strange. Robinson (the main precedent) held that the 4th amendment permits the police to search any property on a person incident to arrest.
The tension is that the case is almost 40 years old, well before cell phones, or any other technology that let someone carry around every detail of their life with something the size of a pad of paper.
So one side (the government) says: "Robinson is clear. We can search the phone."
The other side says: "No, cell phones are different. We need a precedent that makes sense in the 21st century."
This binary can-search/can't-search is the "bright line" rule Kerr talks about. Posner comes out of left field and argues as if it's some kind of sliding scale. NEW RULE.
Robinson is only about property on the arrestee. There are other cases about property in the car but not on the arrestee, e.g., Gant.
Both Gant and Robinson have give really clear rules, and Posner does a good job muddling it all up. It's sort of funny coming from a so-called "law and economics" guy -- you'd think all else being equal, you'd prefer opinions with clear rules so as to lower the costs of administration.
As I understand it, Orin's position is that cell phones are like cars (so Gant is controlling), not like cigarette containers (so Robinson is controlling).
Gant says that police can search your car incident to an arrest if they believe it contains evidence of the crime for which you were arrested.
Applying that rule is a principled way to avoid the problem with Robinson and cell phones, i.e., you get arrested for speeding and the police download your whole browser history.