Law in the Internet Society

View   r6  >  r5  ...
SpencerWanFirstPaper 6 - 21 Jan 2012 - Main.EbenMoglen
Line: 1 to 1
 
META TOPICPARENT name="FirstPaper"
Deleted:
<
<
2ND DRAFT. READY FOR EDIT
 

Warrantless Searches of Smart Phones in the 21st Century

Added:
>
>
Are you saying that you're not trying to write about the state of the law 88 years from now, in the 22nd century? Or distinguishing the situation from the 20th century, when there were no smartphones anyway? How about just "Warrantless Searches of Smartphones"?
 -- By SpencerWan - 22 Oct 2011
Changed:
<
<
With new technology being innovated and used in everyday society, laws have been more and more increasingly insufficient to protect citizens from violations of their rights. One important issue that remains unresolved by courts is whether law enforcement can search through the digital content of a smart phone. I am using the term "smart phone" to mean a cell phone that has increased technological capabilities such as email, software applications, and internet access. Imagine a situation where a man is arrested and his smart phone is confiscated. Under the current law that has not adjusted to the reality of a mobile phone being more than just a telephonic device, the police can now search the phone and its digital content. This can potentially include text messages, emails, bank account numbers and passwords, photos of loved ones, correspondence with lawyers or doctors, and contact information of family and friends. The amount of information we hold fundamentally private can now be found on a device that fits in our pocket. Technology has now put more private information on an individual than ever before. The law must adapt to prevent abuse of this new 21st century reality.
>
>
With new technology being innovated and used in everyday society,

Is there a society we don't use everyday? Is technology innovated?

laws have been more and more increasingly insufficient to protect citizens from violations of their rights.

What is the difference between "more and more increasingly" and "increasingly"? This sentence appears to mean "Technological change has outstripped the law's ability to protect citizens' rights." You have used 26 words where 11 would do. That means this draft hasn't been edited by you at all.

One important issue that remains unresolved by courts is whether law enforcement can search through the digital content of a smart phone. I am using the term "smart phone" to mean a cell phone that has increased technological capabilities such as email, software applications, and internet access. Imagine a situation where a man is arrested and his smart phone is confiscated. Under the current law that has not adjusted to the reality of a mobile phone being more than just a telephonic device, the police can now search the phone and its digital content. This can potentially include text messages, emails, bank account numbers and passwords, photos of loved ones, correspondence with lawyers or doctors, and contact information of family and friends. The amount of information we hold fundamentally private can now be found on a device that fits in our pocket. Technology has now put more private information on an individual than ever before. The law must adapt to prevent abuse of this new 21st century reality.

 Courts have made exceptions for warrantless searches in two situations: exigent circumstances and searches incident to arrest. The rule for exigent circumstances has been set forth by the Supreme Court as such: “[w]here there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.” Exigent circumstances can always exist, and courts may use the exception on a case-by-case analysis.
Line: 39 to 58
 There are many dangers of treating smart phones like old-generation "dumb phones" as current jurisprudence has seemingly failed to prevent. Police now have access to every bit of information about a person at the time of arrest. Loss of privacy can now occur with mere probable cause. This outcome is incongruent with our fundamental values of privacy and needs to be prevented as the number of smart phone users rapidly increase.
Changed:
<
<

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line:

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, SpencerWan

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list

>
>
Because it has not been edited, this draft is blowsy. It says half as much as can be put in the space. It interferes with its own progress the way you would be hampered if you filled your apartment with junk until you could barely walk the halls. Analytically, you never explain why the category "computer" is more important than the category "stuff you had in your pockets when you were arrested." You do not review the law of search incident to arrest very comprehensively, citing a single "closed-container" case as though that were the only point in the space, and as though a box and a briefcase are always the same, and printed papers are always the same as white powders. Your discussion of the California situation is limited in the end to the use of an editorial adverb. Whether Brown's veto is "fortunate" or "unfortunate" is probably less important than the stated rationale you punt on discussing, or the political and industrial context you could have summoned to enlighten the reader as to other reasons why he cast it.

I don't want to perform the first edit here. That prevents you from learning how to do it. Cut the existing material by 50% and put the analysis in that the junk currently forces you to leave out. The we'll be cooking with gas.

 

--


Revision 6r6 - 21 Jan 2012 - 16:11:56 - EbenMoglen
Revision 5r5 - 05 Dec 2011 - 07:00:09 - SpencerWan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM