Should mobile phones be subject to warrantless police search?

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At what point do you consider something “unreasonable”? Let’s say you’re pulled over while speeding—do the police have the right to search your mobile phone? And let’s say they do, and they find other verboten material on the phone? Should you also be on the hook for that, on top of your speeding ticket? It’s a pretty important debate, and it’s one that going on right now.

A judge in San Mateo county, in California, is in the midst of a just such a case. A man there went to buy 30 BlackBerry phones, something that piqued the curiosity of the store clerk. The clerk called the police, and he was arrested on charges of felony identity fraud. His iPhone was confiscated, too,

There’s a case going on right now in California where a man was arrested at a store for felony identity fraud. His phone was later confiscated and searched by police without a warrant. There’s really no law on the books that says police can or cannot search your phone during an arrest. Some people make the case, “Well, if the police can search you wallet, then why shouldn’t they be able to search your phone?” What if you password protect the phone—do the police have the right to crack the password?

I think the overall issue when you deal with the intersection of high technology (let’s just consider your mobile phone to be “high technology”) and law is that law simply hasn’t evolved to the point where it adequately takes technology into account. Let’s say there’s a law that covers wire taps on phone lines—does that cover mobile phones? What about Skype, or instant messages? IRC? Message boards? Can a police officer sit outside a café while running something ettercap, capture you planning some sort of bank heist, then arrest you on the spot?

I actually had this conversation with an Electronic Frontier Foundation senior staff attorney at CES. The gist is, yeah, law simply doesn’t take into account of all the complexities of today’s technology. Let’s say you’re brought to court by the one of the record labels, and you try to argue your case in front of a 70-year-old judge who wouldn’t know the difference between “upload” and “download” if his life were on the line. It’s going to take quite a while before people with more than a basic understanding of technology are sitting on courtroom benches.

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