Tag Archives: Fourth Amendment

Sun, July 6th, 2014 by Graves and Allen

Privacy Is Not Just An Illusion

For some time we have found ourselves in the Internet Age and, as a result have given up much of what we used to call “privacy”.  As a practical matter, privacy as we knew it in the last century has ceased to exist. The Internet has proven a mixed blessing for us.  Along with all the advantages and benefits that the Internet brought us, it also brought a far more public presence for all of us.  As perceptions of expected privacy levels decreased, so did the protections of the 4th Amendment regarding “unreasonable” searches.

Recently, however, the United States Supreme Court struck a blow for traditional privacy rights in the face of modern technology.  By so doing, the Supremes potentially restored a bit of the privacy that we have lost due to technology. On June 25, 2014 in Riley v. California, Justice Roberts, writing for a unanimous court explained that the protections of the 4th Amendment extended to cellular telephones.  The court held that as a general rule, the police may not search the content of a cell phone seized during an arrest without first obtaining a search warrant.  

As obtaining a warrant requires the police to go to a judge and convince the judge that they have good cause to obtain the warrant, the process offers the potential of providing some protection to the information we carry on our cell phones.  While the ultimate question will move to the discretion of jurists approached for warrants, the process does, at least, provide the opportunity for protection and preservation of the privacy of our information.

In writing for the court, Justice Roberts noted that most of us carry a considerable amount of personal and professional information on our cell phones.  Given the correctness of that observation,  any protection is better than none.

Presumably, the Riley decision will ultimately result in similar protection for all portable digital devices seized by the police incident to an arrest.  It would be difficult to differentiate between information stored on an iPad or similar device from that stored on a cellular phone.

Kudos to the Supremes for stepping up the Constitution’s recognition that some privacy rights should continue to exist in the Internet Age.

 

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Wed, May 28th, 2008 by Graves and Allen

Protect your confidential data.

For those of you that have not yet heard this, your data can no longer travel securely across the United States’ national borders in your physical possession.  The United States Court of Appeals for the 9th Circuit ruled in April 2008 that a computer was like luggage and border guards can search it to determine its content and the propriety of allowing it to cross the national borders.   United States v. Arnold

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.  The Arnold Court’s ruling held that the Fourth Amendment does not require even a showing of reasonable cause to justify such a search under the border crossing exception to the Fourth Amendment protections.

The Arnold court held that ”… reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border“.  That language, appearing at the end of the opinion has particular importance as it makes it clear that the opinion does not limit itself to laptop computers.  It includes all forms of ”personal electronic storage devices“.  Accordingly, external hard disks, DVD and CD ROM disks,  flash drives, media cards, digital cameras, cell phones and PDA’s (without limitation) would all come under this exception.  Accordingly, you may find it uncomfortable to travel carrying private or confidential information with you in any of those forms or formats.

So, what do you do?  Fortunately, you can still travel and use your data on the trip, you just cannot safely carry it with you when crossing any US international border.  How do you do this?  Simple, first thing, you back up your data and leave a copy safely stored in a secure location.  Second, encrypt your data using a competent encryption program.  Be sure to set a strong password to access the encrypted data.  A ”strong“ password contains at least six characters and uses both numbers and letters. An example of a strong password:  ‘j104m234a756”.  After you encrypt the data, upload it to an on line storage location, erase the data from your computer, pack it up and off you go.  You can access your data anywhere in the world that you have Internet access.  Enjoy your trip!

When you want to access the data, download it, unencrypt it and use it.  Before you travel again, re-encrypt it, upload it to your on line storage and erase it from your computer.

Copyright 2008, Jeffrey Allen.  All rights reserved.

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