Tuesday, February 03, 2009

Cellular Phones, Warrantless Searches

Cellular Phones, Warrantless Searches
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I have just read an interesting paper, published at the Social Science Research Network (SSRN) website on January 18, 2009, which has a very long title:
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Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence.
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Written by Matthew E. Orso of the Saint Louis University School of Law, the theme of his paper is written in context of the US Constitution Fourth Amendment and searches and, having read the paper, I took the view it raised the US question, do they understand what they are doing in the name of it? The Fourth Amendment, that is.
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To assist his proposition Matthew Orso opens with the volley, "As one court has observed, The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored. A quick glance at the edge of this new frontier might reveal the following: the FBI's Magic Lantern technology, a Trojan horse virus that remotely injects surveillance programs onto a suspect's computer and records every keystroke; x-ray devices that allow law enforcement to see through people's clothing; and police tracking the geographical location of a cell phone (and its owner) by obtaining the service provider's records without probable cause or a warrant. There are countless examples, but all hold at least one trait in common: Fourth Amendment questions abound while legal precedent often lacks, leading to tenuous conclusions."
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The clarity with which some arguments are presented raise other questions, too, such as, who is in control? The people democratically elect politicians to Govern for the purposes of running the country. That requires fulfilling the tenets in the doctrinces set out in the US Constitution. Power is lent and never given absolutely. Thus, once in office, to abrogate powers through devolvement to public servants because the minutiae of running the country is problematical and then not keeping an eye on the possible erosion of Constitutional principles leads, at best, to conclusions that are based upon the flimsiest of evidence and at worse decay at its foundation. Whatever it is that the US Government expects of their Superior Courts to maintain Constitutional principles, it might probably be based on whether those Courts see the flimsy or erosion at first instance? It could be said, Matthew Orso raises that old chestnut, he couldn't be saying it if it wasn't happening.
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Given the enormity of the technological landscape identified by Orso at the outset, his paper sensibly explores only a tiny thread of this "vast new frontier", as he calls it, by focussing in particular on "one intersection between technology and Fourth Amendment jurisprudence that has ballooned in commonality yet remains untouched by the Supreme Court - the warrantless search of a cellular phone's contents."
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As my webblog is about thoughts and discussions on mobile telehone evidence and Forensic Focus discusses Mobile Forensics, I think Matthew Orso's paper makes an excellent contribution to this arena.

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