For a long time, law enforcement and mobile carriers alike have been advocating for a universal “kill switch” in all smartphones that would render stolen phones useless to thieves and thus help cut down on mobile device thefts.
Now, however, the Department of Justice is arguing that that remote data-wiping technology could hinder police investigations, unless officers are allowed to search phones without a warrant at the time of arrest.
In a brief discovered by Wired that was filed with the U.S. Supreme Court, the Justice Department argues that police should be allowed to search mobile phones taken from suspects immediately at the time of the arrest, even without a warrant, so they wouldn’t have to risk letting the suspect or a partner lock or remotely wipe the phone before it’s searched.
The statement responds to briefs made to the court by the Center for Democracy and Technology and the Electronic Frontier Foundation that argued that the warrantless search of phones for evidence is a serious violation of privacy beyond that of the usual search of a suspect ‘s pockets, backpack, or car.
“You have this weird scenario where law enforcement has demanded remote wiping be deployed,” ACLU principal technologist Chris Soghoian told Wired, “And now they’re using that to also justify warrantless searches.”
An attorney with the EFF points out that instead of going through a suspect ‘s phone immediately after the arrest without a warrant to prevent the destruction of evidence, police could simply remove the phone’s battery, turn it off, or put it in a Faraday cage that blocks all radio communications while they wait for a warrant to be obtained.
The brief from the Department of Justice also asks that regardless of the Supreme Court’s decision on warrantless access to the entire phone, police should at least be able to look at suspects’ call logs, because that information is also shared with a third party: the phone companies (the Fourth Amendment doesn’t cover “third party docrines”).
“They’re saying that there are certain things on your phone that have less protections than others under the law, which is crazy,” Soghoian says.
Read the Department of Justice’s full brief to the Supreme Court on Wired.
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