Rand Paul to SCOTUS: 'The Founding Fathers Would Have Protected Your Smartphone'

On April 29, the U.S. Supreme Court heard oral arguments in a pair of cases asking whether the Fourth Amendment requires the police to get a warrant before searching the cellphones of people they've placed under arrest. As I noted in a recent column, the Obama administration has come down squarely on the side of the police in those cases, arguing, "Although cell phones can contain a great deal of personal information, so can many other items that officers have long had authority to search, and the search of a cell phone is no more intrusive than other actions that the police may take once a person has been lawfully arrested."

Credit: C-SpanCredit: C-SpanIn the latest issue of Politico Magazine, Sen. Rand Paul (R-Ky.) and Sen. Chris Coons (D-Del.) take the opposite view, urging the Supreme Court to rule against the police and in favor of broad Fourth Amendment protections:

Today, many Americans keep their entire lives on their phones: family photos, emails, calendar appointments, Internet searches and even location history. Considered separately, each of these categories can reveal very private information. Taken together, they can present a pretty good picture of who you are, what you do, where you go, what you read and what you write. What protection does the Constitution offer them from suspicionless search by the government?...

Technology will continue to evolve, but our Constitution endures. We took an oath to uphold the Constitution. So did every member of the U.S. Supreme Court. The government says that it has the authority to search phones without a warrant.

As a matter of text and history, however, the Fourth Amendment says that they do not. We hope the Supreme Court agrees.

For more on the Fourth Amendment issues at stake in the cellphone cases Riley v. California and U.S. v. Wurie, see here.

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  • Paul.||

    I have it on very good authority, from a serious student of history, that the founders were trying to create a stronger, more powerful central government, than what the King of England was currently providing.

  • robc||

    Alexander Hamilton, maybe.

  • Notorious G.K.C.||

    Isn't it time that H&R gives Hamilton his own theme song?

    https://www.youtube.com/watch?v=xPK3IJBiTDs

  • Pro Libertate||

    Even he was a friggin' anarchist compared to what we have today.

  • ||

    I think, if anything, Hamilton isn't held up often enough as an example of how statism should be executed.

  • sarcasmic||

    but our Constitution endures. We took an oath to uphold the Constitution. So did every member of the U.S. Supreme Court.

    That's a joke, right?

  • Paul.||

    No, no joke. They took an oath.

    Just like I promised I'd attend that meeting this morning.

  • Pro Libertate||

    They swore an oath: "Motherfucker!"

  • Zeb||

    Which is an oath because that is how Jesus addresses God.

  • R C Dean||

    They did protect your smartphone.

    The 4A protects "The right of the people to be secure in their persons, houses, papers, and effects".

    Its not just that your person, your house, and your papers can't be searched without a warrant. It also means none of your shit, none of it, can be searched without a warrant.

  • ||

    This is just so blindingly obvious, how can the justices miss it?

    For that matter, how can police and prosecutors miss it?

    The founders were encoding a principle in the language they had available to them. The principle stands. The spirit stands. And it is utterly trivial to extend it to new technologies.

  • Bo Cara Esq.||

    The idea that the 4th requires a warrant was a quaint Warren Court idea that has since been swallowed up by numerous 'warrant exceptions' and the Rehnquist Court's idea that the only issue is whether the search was reasonable or not (in other words, warrants are not required by the text).

  • Francisco d'Anconia||

    Oh, thank god, Bo, you're still alive. I was worried sick.

    I was almost certain you were Elliot Rodger.

  • Bo Cara Esq.||

    Likewise I heard about your primary loss. Sorry about that, but 34 years is a good run.

  • Francisco d'Anconia||

    Well, my mistake was certainly understandable. How many 22 year old virgins who've never kissed a girl can there be out there?

  • Bo Cara Esq.||

    Ah, the jealousy. Look, just because the only girl kissing in your recent days and upcoming future likely involves great grandchildren don't begrudge me my more interesting pursuits.

  • Thea||

    What makes you think any of them 'missed' it?

  • Brandon||

    This is just so blindingly obvious, how can the justices miss it?

    There are none so blind as those who have professional incentives not to see.

  • Grand Moff Serious Man||

    I'd argue that emails and the contents of any storage device should fall under 'papers' just like 'the press' protects radio and television.

    But your point is still valid the way it is.

  • Notorious G.K.C.||

    "Now, Mr. Madison, surely you agree that, if we could devise a mechanical box containing virtually all information pertaining to our lives, then the officers of the government should be able to examine the contents of that box without needing to undergo the inconvenience of convincing some judge to authorize the search?"

  • Paul.||

    This is actually an excellent analogy. Had the founders envisioned a magical box that could contain literally millions of writs and leaflets, thousands of realistic portraits etc., they would have been even MORE concerned with protecting it. Not less so.

  • Caleb Turberville||

    Just as the 2nd Amendment didn't anticipate automatic machine guns, the 4th Amendment didn't anticipate electronic storage of information.

    /proglogic

  • Bo Cara Esq.||

    If you listened to the oral arguments you'd know that generally it was not the 'progs' on the bench that were seeming to come down on the government's side, but the conservatives.

  • Caleb Turberville||

    I was making the case that /proglogic with regards to the 2nd Amendment leads to very bad results when applied to the amendments that progs like (well, "like" more than the 2nd Amendment).

  • Bo Cara Esq.||

    Fair enough.

    At oral arguments Alito seemed clearly the most supportive of the government's position, the Chief Justice did as well, though less so. Scalia seemed inclined to the police, but made some comments the other way. Kennedy, as usual, seemed to go back and forth. Kagan and Sotomayer really spoke out against the government's position, emphasizing we live in a 'brave new world' where so much information is in a phone. I'm betting we get a 6-3 or 5-4 on this one.

  • Caleb Turberville||

    Well, if /Obamacarelogic gets applied, we'll see a 5-4 decision in favor of the government based on judicial deference.

  • Caleb Turberville||

    or judicial restrain. Whatever the philosophy is called.

  • Toki Wartooth||

    Well since real progs believe the 2nd only protects the states rights so they can have "well regulated" militias, you get half credit.

  • Matrix||

    They wouldn't even want state NG units if this argument didn't fit their agenda to disarm ordinary citizens.

  • Grand Moff Serious Man||

    Rand Paul is just all kinds of awesome.

  • ||

    "Rand Paul to SCOTUS: 'The Founding Fathers Would Have Protected Your Smartphone' "

    They did. They wrote this and made it the supreme law of the land:

    "The right of the people to be secure in their persons, houses, papers, and EFFECTS, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    What we need to do is make this government stop breaking the law.

  • sarcasmic||

    What we need to do is make this government stop breaking the law.

    Good luck with that.

  • Bo Cara Esq.||

    The problem is that the SCOTUS has said that in a search incident to arrest an officers search of the immediate area of the arrested is not unreasonable.

  • Notorious G.K.C.||

    Yeah, who are we going to believe, the experts on the Supreme Court, or our own eyes?

  • Bo Cara Esq.||

    I'm not sure what your eyes see, but mine see an 'and' in the second line which suggests that the Warrant Clause is separate from the first clause. That's the crux of the problem.

  • Zeb||

    Yeah. Like it or not, some things in the Constitution really are worded in such a way as to be open to interpretation. I wish some of the authors had worried less about sparse and elegant prose and more about clarity of meaning.

    I don't think it has ever been assumed that a warrant is necessary for every and any search. So the question of what searches require a warrant and which do not is one that should be asked.

  • Notorious G.K.C.||

    As a matter of fact, I was questioning whether a warrantless search of a device containing all one's personal information is reasonable.

    It's one thing to notice that the knife you seized from the guy you arrested is crusted in blood - I don't think a warrant would be needed - it's another thing to go through all the information on the guy's cell without a warrant.

  • Notorious G.K.C.||

    The Supreme Court can say what it pleases, it can't make the unreasonable, reasonable.

  • Notorious G.K.C.||

    I'd think a magazine called Reason would understand this...I hope nobody's still doing that drinking game...

  • Zeb||

    I agree that searches of cell phones aren't reasonable and I think the arguments for it are ridiculous.

    But the question still needs to be answered since what is or is not reasonable is not defined in the text. I could be misinterpreting, but it seems like a lot of people assume that the 4th means that a warrant is necessary for any search.

  • Zeb||

    I thought that the reasoning behind that was to find weapons or other dangerous items and other things related to the crime they are being arrested for. In very few cases would it be possible for a person's phone to contain anything like that.

  • Brett L||

    Even were the phone dangerous in the hands of the person, there is no excuse for searching a phone, even if they remove it from your person in the name of safety.

  • Zeb||

    Yeah, take it and turn it off.

  • some guy||

    What we need to do is make this government stop breaking the law.

    Easy. I'll just call the police and they'll sort this whole thing out.

  • Zeb||

    What we need to do is make this government stop breaking the law.

    I don't know how you would make this happen, but it seems to me that if you could break up the "brotherhood in blue" bullshit, even if it was just making cops more loyal to their own department or organization than to other cops generally, you could make it so that calling the cops on the cops was something other than a joke. For example, make it part of the state police's job to arrest local police for violating the law or people's civil rights. State cops already seem to think pretty little of a lot of locals, so making a law empowering them to police the local police could just work.

    Maybe I'm missing something, there's always a downside, but it's an idea worth kicking around, I think.

  • Cytotoxic||

    Is it possible to create a 'dummy' login of your smartphone, where putting in your regular password grants you the normal access to your phone data but the alt password grants access to a dummy version of your smartphone with whatever trinkets of info you've put in there? Am I being clear?

  • sarcasmic||

    I don't believe the stripped down OS they use on smartphones supports multiple user accounts, but I could be wrong.

  • Way Of The Crane||

    I don't know about android phones but it is NOT possible on iPhones.

  • ||

    Am I being clear?

    Not really. The OS and GPS don't generally care about your email when they log your location or call connection details. You can create and then use a 'bogus' gmail account with android devices but, again, the OS doesn't record who's pocket it is in when it goes into a crack house or who's hand it is in when it calls in a bomb threat to the white house. Even if they did, the bill still comes to your house and you should expect uniformed men to show up asking questions if you let these sorts of things happen with your phone.

  • Cytotoxic||

    I'm not attempting to create a fake owner. What I want is a way that, in the event a cop asks me for my phone and what's on it, I can log into an 'alt' version of my phone. What I'd normally log into (by password or touchscreen thingy) has Radley Balko literature. What I want the cop to see is the 'alt login' with just lolcats and the dummy Gmail account.

  • Francisco d'Anconia||

    ...is no more intrusive than other actions that the police may take once a person has been lawfully arrested."

    So once I'm "lawfully arrested" do the pigs require a warrant to search my house?

  • Bo Cara Esq.||

    No, just the immediate area of the arrested person. The rationale was they officers could search that for 'officer safety' and to prevent destruction of evidence within the arrested's reach. Of course those do not seem to fit with the current question (the attempts of the government to make them fit at oral arguments were quite hilarious I thought, hypothesizing about remote kill switches that would erase the phones and calls made to set up ambushes for the arresting officers).

  • Zeb||

    If officer safety is the rationale, then extending it to phones is ridiculous. The most they should be allowed to do is to turn the phone off.

  • Bo Cara Esq.||

    The government offered some pretty funny ideas about how officers needed to search phones to protect their own safety, it was all in the Wurie oral arguments if you're interested.

  • ||

    If officer safety is the rationale, then extending it to phones is ridiculous. The most they should be allowed to do is to turn the phone off.

    or shoot it.

  • Francisco d'Anconia||

    Hmmmm.

    *rubs chin*

    persons, houses, papers, and effects

  • Warren's Strapon||

    Thank goodness Michael Winslow is protected.

  • Bo Cara Esq.||

    The issue is not whether it's an effect, it's whether a search of it incident to arrest is unreasonable.

  • ||

    Some near peak derp coming from the comment section of an LA Weekly article bemoaning how teh gunz caused the isla vista massacre. He's responding to both of us in one giant prog circle jerk shitpile of a comment.
    "Jack and Chris...its progressives that are responsible for all that's good in your life. In the not too distant human past, you'd be weeded out because of natural selection, but now we keep you alive and have to put up with you like parents put up with screaming children who don't understand why bedtime exists. Remember, you're just spewing nonsense, and the Mother Jones article quotes facts. Use this as a learning opportunity and open your minds to simply absorbing facts because the evidence is overwhelming. Try this on for size, a very comparable country changed everything, we can too: http://www.policymic.com/artic.....e-guts-for"
    Christ, the correlation causation fallacy apparently doesn't exist anywhere in prog think.

  • sarcasmic||

    You mean they string together unrelated facts (mostly outliers) and then call it logic?

  • ||

    I mean I had no idea that progressives are responsible for all that's good in my life.

  • Notorious G.K.C.||

    They're responsible for much of derpetologist's fun.

  • sarcasmic||

    Well, duh. If it wasn't for progressives we'd be toiling for the corporations, twenty four hours a day, in a barren wasteland. They would have all the money while we would have nothing. The environment would be completely destroyed, yet somehow there would be enough of it left for the rich to live in luxury while we toiled for them all day and night. There would be no schools (except for the rich), no hospitals (except for the rich), no environment (except for the rich), and everything that ever had any government funding would not exist. That means computers, internet, whatever. You name it and government had a hand in it. We'd all be slaves.
    You see, in this life it's us vs the corporations. Progressive government is on our side, while libertarians and conservatives support the corporations that want to enslave us all.
    Either you support progressives or you support slavery.
    Duh!

    Yes, you owe it all to progressives.

  • ||

    Yeah, I didn't care for that Matt Damon movie either.

  • Brett L||

    Well, duh. If it wasn't for progressives we'd be toiling for the corporations, twenty four hours a day, in a barren wasteland.

    So only doing 10-12 in a barren cubicle farm is victory?

  • Notorious G.K.C.||

  • pan fried wylie||

  • Notorious G.K.C.||

    much obliged

  • Cytotoxic||

    Progs love screaming the word FACTS like it's a talisman that makes their creed of evil righteous.

  • ||

    That's some serious messiah/savior complex right there.

  • ||

    You see this "we liberals are your parents and we're very disappointed in you" shit a lot. It's telling.

  • Almanian!||

    "And I hit 18 34 years ago and I haven't had to listen to you since then. Fuck off, slavers!"

  • Brett L||

    Ah yes, the adults in the room... who shit themselves more often than my infant son. I mean, maybe I'm raising a monster, but I hope he behaves from deeper principles than "dad won't like me" by the time he's able to hold a job. I'm looking forward to the day when he tells me he has his own life and money and I can accept it or fuck off just as I like.

  • Rev-Match||

    ...but now we keep you alive and have to put up with you...

    This part concerns me. But, I suppose it should, given that progs and their ideology are the biggest mass murderers in history.

  • sarcasmic||

    "...and the search of a cell phone is no more intrusive than other actions that the police may take once a person has been lawfully arrested."

    What if a person is unlawfully arrested? Oh yeah. Nothing else happens.

  • ||

    Smartphones, fine, great. Why is the NSA hacking reason?

  • Paul.||

    They're trying to disrupt the commenting. The outsized power of Hit & Run is destabilizing the country.

  • SIV||

    My best guess is the commenting is being disrupted by the new thing that refers us to alternet stories.

  • Andrew S.||

    I'm going to go ahead and get pissed off now about SCOTUS' holding in this case, so it will be easier when they issue the actual ruling against the 4th.

    My only question is whether the decision will be like 5-4 (with the three ladies and Scalia dissenting, similar to other 4th amendment cases this term) or an easy 9-0 decision. And which would piss me off more.

  • Paul.||

    Why not 7-2, Ginsberg and Breyer dissenting.

    Unless there were plans for a liberator pistol on the phone, then you're looking at a 5-4.

  • SIV||

    Chris Coons is the guy who beat Christine "the witch" O'Donnell. Good to see he doesn't suck on everything.

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