While in the midst of a scandal over illegal spying programs, the Obama Administration is attempting to legalize warrantless cellphone searches.  The administration has written a formal petition to the Supreme Court in favor of allowing law enforcement to search a suspect’s cell phone without a warrant. The administration wants a cell phone to be considered fair game and offered no protections.

In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns. The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights.

Earlier this year, the First Circuit Court of Appeals accepted the man’s argument, ruling that the police should have gotten a warrant before accessing any information on the man’s phone.

The Obama Administration disagrees. In a petition filed earlier this month asking the Supreme Court to hear the case, the government argues that the First Circuit’s ruling conflicts with the rulings of several other appeals courts, as well as with earlier Supreme Court cases. Those earlier cases have given the police broad discretion to search possessions on the person of an arrested suspect, including notebooks, calendars and pagers. The government contends that a cellphone is no different than any other object a suspect might be carrying.

Right, it’s not like a cell phone contains massive amounts of personal information. And hey, if the cell phone is grabbed by agents of state power and downloaded into their system and later it turns out you are innocent – well no harm, no foul. Though they keep the information, obviously.

If the Obama Administration is successful and cell phones are considered no different than any other object it could be harder to make the case that searching them remotely without a warrant isn’t also legal. The trend towards greater state power is quite clear.

It is an open question whether laws like the Patriot Act are creating new domestic spying activity or just legalizing behavior that was already occurring. We know the Obama Administration is spying on the American people’s phone calls and emails.  Now they want some of their activity legalized. It seems to be a two-tracked system – if it’s illegal the government will do it in secret and if it’s legal they will do it openly. In other words, the government plans on spying on the American people regardless of the law, but it would like whatever it is going to do anyway to be legal.

Photo by Movieevery under public domain.