US DOJ asks Supreme Court to allow warrantless cell phone search

“Kill switches” for mobile phones seems like a great idea for discouraging rampant mobile phone theft going on in the US.

As a matter of fact, a bill introduced to the Senate in February that, if passed, will require manufacturers to equipe all smartphones with a way to disable and/or wipe them remotely, i.e. a “kill switch”, has even been backed by a number of law enforcement officials including the New York State Attorney General, the San Francisco District Attorney General and several police commissioners of larger US cities.

A similar law has been rejected by the California Senate on Thursday, but whether the proposed national legislation will pass is still difficult to tell.

But in the event that it does, the US department of Justice has filed a brief to the US Supreme Court on Tuesday, asking them to allow police officers to search without a warrant a suspect’s phone(s) immediately after the arrest. The request has been made because they fear that the suspects will be able to wipe the handsets remotely before the police gets the warrant allowing them to root through it.

The case that spurred it all is that made against one Brima Wurie, alleged drug dealer from Boston, whom the police arrested back in 2007, and whose phone’s call log they searched to discover who was calling him at the moment of the arrest. This allowed them to discover the address of the house from which the call was made, and to prevent the destruction of evidence in it before a search warrant was secured.

The Center for Democracy and Technology and the Electronic Frontier Foundation have already agued that such a move would violate the suspect’s Fourth Amendment rights “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” if there is not probable cause and a specific warrant is issued.

In the response brief, DOJ Solicitor General Donald Verrilli Jr. argues that “if an officer does not search an unlocked cell phone as soon as she finds it, a significant risk exists that the police will never be able to recover evidence contained on the phone.”

He maintains that “wallets, diaries, letters, or address books—have long been held searchable by virtue of the arrest. No different rule is required for cell phones,” that “searching an arrestee’s cell phone immediately upon arrest is often critical to protecting evidence against concealment in a locked or encrypted phone or remote destruction, ” and that there have been documented instances when remote wiping was successfully employed to destroy evidence.

“For example, in one California case, the members of a narcotics-trafficking organization ‘admitted that they had a security procedure, complete with an IT department, to immediately and remotely wipe all digital evidence from their cell phones,'” he pointed out. “[The problem od remote wiping] will only increase as mobile technology improves and criminals become more sophisticated.”

He also argues that even if a warrant was required to access most of the things held in the suspect’s phone, officers should still be allowed to access to the phone’ call logs, as that information can also be shared by the phone company, and the users can’t have a reasonable expectation of privacy when it comes to this type of information.

But according to ACLU principal technologist Chris Soghoian, that’s not true. The information in question isn’t held by the phone companies, but is stored on the device, he told Wired, and that’s why law enforcement wants access to it.