Technology and the law. What would you want to see done?

[OriginalShroom]

One thing I think most of us, if not all, can agree on is that the laws when it comes to technology are way behind.

When a Smart Phone is considered the same as a dumb phone under the law, there are some serious problems out there.

And here is another...

Deadline Looms for Suspect to Decrypt Laptop, or Go Directly to Jail | Threat Level | Wired.com

If a judge orders you to decrypt the only existing copies of incriminating files, are your constitutional rights against compelled self-incrimination being violated?

That’s the provocative question being raised as a Wisconsin man faces a deadline today either to give up his encryption keys or risk indefinite imprisonment without a trial. The defendant’s attorney, Robin Shellow of Milwaukee, said it’s “one of the most important constitutional issues of the wired era.”

Shellow is making a novel argument that the federal magistrate’s decryption order is akin to forcing her client to build a case for the government. That’s because encryption basically transforms files into unreadable text, which is then rebuilt when the proper password is entered, she said.

“Some encryption effects erasure of the encrypted data (so it ceases to exist), in which case decryption constitutes re-creation of the data, rather than simply unlocking still-existing data,” Shellow wrote in a court filing. (.pdf)

In a telephone interview Monday, she said “this area is a new way of thinking about encryption.”

UPDATE: A federal judge this afternoon halted the decryption order, and demanded further briefing on the constitutional implications.

Personally I have my smartphone not only passworded, ( 9th CoA recently ruled that even a simple password is enough to require a warrant for inspection by police ) but I have all my files that I keep on there encrypted.

Not that I am doing anything illegal, but I do have stuff on my phone no one else should be able to see.

It is my own opinion that any Government Agency and / or agent should be required to have a warrant to inspect either my phone or my computer anywhere except when crossing the boarder and that should be limited to the size of the border crossing building itself, not the 150 miles (IIRC) that it is now.

The Smart Phones of today, not the dumb phones , are really more of a computer that has the capability of making a phone call than it is a phone that has other capabilities. When was the last time anyone phone ad extolled it's call making capabilities? Now it is about it's computing power. It's ability to multi-task. Even to take and share photos. But make a call and have a great sounding phone call? I haven't seen that ad in years, if I even did back then.

 

[Glensather]

Laws have always been behind in regards to technology. I'm not surprised to read something like this.

 

[OriginalShroom]

WOW

I just found this....

Had no idea it was happening.

Florida justices say warrant needed to search cell phone | May 2, 2013 | The News Service of Florida | HT Politics

Florida justices say warrant needed to search cell phone
By The News Service of Florida, Herald-Tribune/ Thursday, May 2, 2013 TALLAHASSEE

Police officers need a warrant if they want to search through photos on a cell phone in possession of a defendant at the time of arrest, the Florida Supreme Court ruled on Thursday.

The ruling, which overturns an opinion from the 1st District Court of Appeal, also is related to an issue before the Legislature, which this session has considered putting the warrant requirement in statute.

While police officers in Jacksonville had the right to take the defendant's cell phone, they should have gotten a warrant to look at the photos on the device, the Supreme Court ruled in a 5-2 decision. Justices R. Fred Lewis, Barbara Pariente, Peggy Quince, Jorge Labarga and James E.C. Perry were in the majority. Justice Charles Canady and Chief Justice Ricky Polston dissented.

The district appeals court had ruled that the cell phone search was legal but asked the state's high court to take the issue, calling it a matter of great importance that should get a statewide ruling.

 

[Glensather]

...but wouldn't it be obvious that you need a search warrant for a cell phone? You need one to pry open a computer.

Man, it's worse than I thought.

 

[OriginalShroom]

...but wouldn't it be obvious that you need a search warrant for a cell phone? You need one to pry open a computer.

Man, it's worse than I thought.

The courts have not considered cell phones in the same light as a computer. More like a billfold or wallet, which can be searched when taken off of a person under arrest without a warrant.

 

[OKTexas]

In my opinion he is protected by the 5th Amendment court ordered provision of the encryption key is the same a coerced statements. If the states computer geeks can't crack it maybe they should get better geeks.

 

[Glensather]

The courts have not considered cell phones in the same light as a computer. More like a billfold or wallet, which can be searched when taken off of a person under arrest without a warrant.

...do any of these people have or have ever owned a smart phone?

In my opinion he is protected by the 5th Amendment court ordered provision of the encryption key is the same a coerced statements. If the states computer geeks can't crack it maybe they should get better geeks.

Or hire the Internet.
In my glory days I could crack some of the first smart phones. The newer ones are a bit too advanced for me.

 

[OriginalShroom]

Here is a court ruling that I strongly disagree with..

Federal Judge: No Warrant Needed to Track Your Cell Phone Data

A federal judge recently ruled that no warrant is necessary for real-time tracking of cell phone data, stating that keeping your cell phone on waives your Fourth Amendment right to due process.

New York magistrate Gary Brown ruled that “cell phone users who fail to turn off their cell phones do not exhibit an expectation of privacy.”

He wrote a 30-page opinion brief explaining his ruling in a case against a physician charged with being paid thousands to dispense prescriptions. Brown ruled in favor of the Drug Enforcement Administration (DEA) which asked for a warrant to compel the cell phone carrier to release real-time tracking data on the physician's phone.

Brown said there was already a valid arrest warrant on the individual, and the cell phone data would help the DEA locate and apprehend him. Furthermore, he claimed that by leaving the cell phone on, the suspect had forfeited his right to privacy.

In the brief Brown wrote, “given the ubiquity and celebrity of geolocation technologies, an individual has no legitimate expectation of privacy in the prospective location of a cellular telephone where that individual has failed to protect his privacy by taking the simple expedient of powering it off.”

The accused physician’s phone was tracked down to a car in Queens, and he was arrested on Mar. 20.

Brown wrote that, given how much data users share with retailers and other applications on their phones, “cell phone users cannot realistically entertain the notion that such information would (or should) be withheld from federal law enforcement agents searching for a fugitive.”

Chris Soghoian, principal technologist and senior policy analyst at the American Civil Liberties Union, called Brown’s opinion “ridiculous.”

“There is a big difference between location information you knowingly share with a select group of friends (or, in fact, the world) and information collected about you without your knowledge or consent,” Soghoian wrote.

Last week the Department of Justice admitted to secretly obtaining phone records for journalists and editors at the Associated Press. According to the AP, Verizon Wireless handed over the records on two journalists' personal cell phones before the Justice Department subpoena could be challenged.

"This is the phone companies putting the interest of law enforcement before their customers, and that's wrong," said Soghoian. "None of them tell users. They all suck."

Metadata in phone records indicates the phone number, time, call origin, call duration and the carrier.

Sources: RT, Gizmodo

 

[Glensather]

... I have no words.
Well, I have a few: I'd like to think that there are some Senators or Reps on both sides of the aisle that would take issue to this.

But then again, there's the Patriot Act, which basically gives the government the ability to say 'fuck you' when it comes to your privacy.

 

[percysunshine]

This is a weird one. The defense is arguing self incrimination, and the prosecution is pointing out probable cause because they decrypted some of it.

Hypothetical analogy: So if the police find stolen property in your front yard, they can probably claim probable cause for searching the house. But if they can't get in, and you do not even acknowledge that you have the keys, much less that it is even your house in the first place, can a judge place you in contempt forever? Say the proof of ownership, and the details about who has the keys are in the house...and thus the proof of contempt, is in the house.

 

[The2ndAmendment]

To quote my own writing on this particular subject, the final paragraph addresses yoru question, but you should read all of the prior paragraphs that I am going to post below:

Now we will return to Sir Robert's Patriarcha, and cast aside the involvement of religion (God) in doctrine of Divine Right. When we have removed religion, we are left with the raw embodiment of Statism, which decrees that the State is Sovereign over the people, and that the people exist at the mercy and grace of the State, thus these people are Subjects, and their rulers are Kings.

People living under this doctrine, willingly or unwillingly, possess no rights, for the State is sovereign over all things, and thus the State has unlimited rights, infinite in its power. The State will usually delegate most of its powers to the Subjects, as it would be both inconvenient and impractical to administer the entirety of its infinite power in finite Time. Thus the State must prioritize which powers it exercises, because it only has limited Time and resources to execute its authority.

The first among these priorities will be to exercise the powers required to preserve its authority. Any time the Subjects of the State use their delegated privileges to challenge the State, the State will hastily disparage that privilege among those who are resisting them, and sometimes deny the privilege completely. In times of great peril to the Kings who administer the State, they will revoke the privilege entirely among all their Subjects. Once revoked, it will never be regained by the Subjects; the State does not forgive, it does not forget, it will never relinquish that privilege again.

In order to make sure that the people no longer continue to exercise that privilege, it will perpetually police its Subjects, for the failure to police the Subjects will result in a challenge to the authority of the State, which must not be questioned. Herein is the guiding principle behind the Police State. A government founded on the doctrine of Statism cannot guarantee its infinite sovereignty by doctrine alone, it must rely upon a compliant police or military, a Privileged class of Subjects, granted innumerable benefits and privileges that no ordinary Subject may possess (in short, a Nobility).

Recalling that the State must prioritize which powers to invoke, because the State is limited by Time, we must pay heed to the innovations of modern technology. Technology is a neutral entity; it can be used for both good and ill. The most important feature of technology, is that it allows a person or party (government) to use its Time more efficiently, allowing the person or party to accomplish more tasks in a given measure of time than previously before. As a consequence, as technology improves, the State is able to exercise additional powers, because it can use its Time more efficiently, and thus can Police its citizens even more than ever before, further reducing any perceived threats. Remember, that any government operating under the Doctrine of Statism only delegates those privileges to its Subjects that it cannot reasonable exercise in respect to its other priorities. However, once the Government has the ability to Police that right without diminishing other priorities, it will immediately revoke that privilege among its Subjects and reserve that right exclusively to itself.

In other words, as technology improves, the Bill of Rights becomes more important, not less important (as Progressives always tout).

 

[Jarlaxle]

In my opinion he is protected by the 5th Amendment court ordered provision of the encryption key is the same a coerced statements. If the states computer geeks can't crack it maybe they should get better geeks.

Were he smart, he'd have a SECOND decryption key...which, when used, will instead of decrypting, DESTROY all data on the computer!