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Weighing The Risks Of Warrantless Phone Searches During Arrests

Weighing The Risks Of Warrantless Phone Searches During Arrests | Cultural Trendz | Scoop.it

The U.S. Supreme Court hears arguments Tuesday in two cases testing whether police can search cellphones without a warrant at the time of an arrest, be it for a traffic violation or for a felony.

The Supreme Court has interpreted the Fourth Amendment ban on unreasonable searches to require that police obtain a search warrant from a neutral judge upon a showing that there is probable cause to believe a crime has been committed. The warrant is to specify where the search will be conducted and the evidence being sought.

There are, however, exceptions to the warrant requirement.

The court has long allowed police to search people without a warrant at the time of their arrest. But as privacy advocate Andrew Pincus points out, until very recently, those searches were self-limiting, meaning they were limited by the amount of information an individual could carry on his person.

Now, however, because cellphones can store so much information, a person can carry more than any one of the Founding Fathers had amassed in a lifetime.

"The Library of Congress' entire collection of James Madison's papers is 72,000 pages," Pincus observes, adding, "he couldn't have carried them. They would have weighed 675 pounds." And, says Pincus, today's cellphones carry 100 times that much information.

Indeed, the iPhone 5 in its smallest storage version keeps 800 million words of text, Pincus says. That's enough to fill more than a football field's length of books, or over 8,000 photos, 260,000 private voice mails and hundreds of home videos.

"It's misleading to even think of them as phones," says George Washington University professor Orin Kerr, an expert on technology and the law. They are "general purpose computers" that have a bunch of apps, one of which is the telephone function.

And just as there is a mass of private information on smartphones, there is also a mass of information about criminal activity, which is why law enforcement wants to preserve the warrantless search at the time of an arrest.

"It's not at all uncommon now for drug rings, prostitution rings, child-trafficking rings [to have] emails, texts, pictures, all kinds of other important information on the phone that are not only important to solving crime in the long run and making sure the bad guys are convicted, but might be necessary to protect someone right now," says law enforcement advocate John Bursch.

The Cases At Hand

The two cases before the court offer an illustration of the potential advantages — and dangers — of warrantless cellphone searches.

One case involves a traffic stop in San Diego. Officer Charles Dunnigan saw David Riley driving a Lexus with expired tags. After pulling Riley over, the officer found that his driver's license was suspended. Following standard procedure, the car was brought in for impoundment and inventoried, whereupon police found two guns under the hood and arrested Riley.

During the arrest, police took his Samsung smartphone from his pocket and conducted a two-stage search of the phone. First, Officer Dunnigan scrolled through the text entries and saw abbreviations that he thought indicated gang activities. Two hours later, a detective specializing in gang investigations went through the phone's digital files — containing photos, videos, a contacts list — and downloaded "a lot of stuff."

Based on some of that information, and one of the guns, police linked Riley to a gang shooting three weeks earlier in which nobody was injured. They charged him with several serious felonies, including shooting at an occupied vehicle, a crime normally punishable by up to seven years in prison. But because he was charged with a gang-related offense, that sentence was enhanced to a mandatory term of 15 years to life.

The second case before the court goes back seven years and involves an older flip phone containing much less information. But here, too, Boston police opened the suspect's phone when he was arrested, pushed two buttons, and found information that would lead to drug and gun evidence used to win a conviction.

In both cases, the defendants contend that the information taken from their phones without a warrant should not have been used against them at trial because it was obtained in violation of the constitutional ban on unreasonable searches.

They contend that cellphone searches are not targeted, as the Fourth Amendment requires, but are more like the "general warrants" the British used to rummage through the papers belonging to the colonists. Those unlimited, unsupervised searches were the inspiration for the Fourth Amendment. That's what the Founding Fathers were trying to prevent.

Preserving Evidence

The long-established rule allowing a search incident to arrest was aimed at finding weapons that might be a threat to an officer's safety and to prevent evidence from being destroyed.

But privacy advocates say those concerns — safety and destruction of evidence — play out differently with cellphones. They maintain that police can secure a cellphone at the time of an arrest and then seek a warrant to search it later. They note that there are inexpensive bags that insulate cellphones from being wiped clean from a remote location.

Not so, reply law enforcement groups. "The bag and other tricks are far from foolproof," says Bursch. "In fact, they are kind of riddled with holes like Swiss cheese.

"Criminal rings have gotten pretty sophisticated about this," Bursch adds, pointing to an investigation in Orange County, Calif., that he says was almost derailed. While the sheriff's department obtained search warrants, the drug ring's members were instructed to immediately wipe all the digital information from their cellphones. And only one phone found in the raid was still intact with its information, according to Bursch.

Experts say they know of few such examples, but they do expect that with or without cellphone search warrants, there will be something of an arms race between cops and criminals, and between securing and erasing incriminating information.

Threat To Individual Liberties?

For the Supreme Court, however, the question is whether to stick with the rules allowing warrantless searches at the time of arrest, or whether to adapt those rules to the modern digital era and the ubiquitous smartphone.

As law enforcement sees it, there is no great threat to individual liberties. "You're only going to be in this position if you're arrested for a crime," Bursch says.

But countering that argument, civil libertarians on the left and right note that 12 million people are arrested each year, and most are never convicted of any crime. Moreover, while some of these arrests arise from felony investigations, the vast majority are for alleged misdemeanors, such as driving under the influence or shoplifting cheap items.

Professor Kerr concedes that police and prosecutors don't want to search every cellphone in every case. But because they want that power in some cases, they want a rule that allows it in all cases.

"Of course," Kerr observes, "whether you accept that or not hinges on whether you trust the government to actually only conduct the search when it would actually be appropriate."

Vilma Bonilla's insight:

"Police have long been able to search people without a warrant at the time of their arrest. Two cases before the Supreme Court ask whether cellphones should be off-limits until police get permission."

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Why is our banking system so far behind?

Why is our banking system so far behind? | Cultural Trendz | Scoop.it

Say you owe money to a friend. How do you pay?

If you live in the United States, your fastest option is probably withdrawing cash from an ATM. Another possibility is writing a check.

But even after the check gets deposited, the cash won’t be available for hours, or days.

You can also wire the money electronically. Incredibly, that option often takes the longest of all.

These slow, inefficient choices seem normal to Americans, because we’re used to them. But when you examine what’s happening in other countries, it becomes clear just how antiquated the U.S. payments system has become.

In the United Kingdom, you log into your online banking account, hit send, and the money arrives in your friend’s account within 10 seconds. In Sweden, you pick up your mobile phone, and the transaction takes only about six seconds to process. Even less wealthy countries like Mexico and South Africa have moved to near-real-time payments.

In contrast, the U.S. still relies on infrastructure that dates back to the 1970s. If you pay your cable TV bill online on a Thursday, the payment may not be completed until the following Monday.

So why have we fallen so far behind? The root of the problem, according to experts, is a lack of leadership. No one is really in charge of our payments system.

"You would need somebody like the Federal Reserve, somebody who is a neutral third party, with impeccable credentials, to show leadership and to set goals," says Gene Neyer, global product manager at FundTech, a company that has helped other countries move to near-real-time systems.

The good news is that the U.S. Federal Reserve recognizes the problem. Last autumn the central bank laid out a vision of the future for payments. That vision looks a lot like where Sweden already is today.

"Today, U.S. consumers can’t make a near-real-time payment in a convenient and cost effective way from any bank account to any other bank account," the Fed’s 13-page paper noted. "In a world where several other countries are moving to ubiquitous near-real-time retail payment systems, the U.S. payment system does not have this capability."

But the Fed, which historically has been wary of imposing mandates on banks, is trying not to come off as heavy-handed. And that cautious approach may make it harder to bring about change in the banking industry.

In the U.K. and some of the other countries that now have fast payment systems, the government required banks to make the upgrades.

"The banks were being bullied into doing it here," says Dave Birch, a U.K. payments consultant.

Already, the Fed’s vision is sparking signs of resistance from the biggest U.S. banks. A trade group representing the nation’s largest banks, the Clearing House, recently filed comments arguing that any overhaul should pay for itself – not just in the long run, but also in the short-term.

That’s setting a high bar for change, because banks will have to make sizable upfront investments to upgrade their computer systems.

Eventually, those investments could reach the break-even point, says Craig Tillotson, managing director of Britain’s Faster Payments Scheme. He notes that electronic payments are cheaper to process than checks.

But Tillotson argues that fast payments have other, less tangible benefits for the banking sector.

"I think you have to see this as an investment an industry makes to meet the needs of its customers," he says. "You have to ask the question of whether you want to be in the modern world, whether you want to stay at the heart of how consumers and business manage their finances and the flow of their money."

The holy grail of person-to-person payments is the ability to send money instantaneously to anyone else’s mobile phone number. In Sweden, that’s been reality for over a year now, since the rollout of a system known as "Swish."

The upgrades have brought Swedish consumers a lot of benefits, according to Lars Gunnstam, who heads the consortium of banks that runs Swish.

You can split a dinner bill while you’re still sitting in the restaurant. Or make a last-minute payment to your utility company. A food truck owner, who would otherwise waste a lot of time handling cash, can instead get paid via mobile phone.

"He can immediately see that he has received the money," explains Gunnstam, an executive at the Swedish bank Nordea. "And you can immediately shake hands and say, ‘Fine, done.’ That is very important if you do business out in the street."

To be fair, there is innovation happening here in the U.S., too. Services like Popmoney and Chase QuickPay allow you to send money to a friend over your mobile phone.

But in terms of fast payments, those services don’t even come close to linking every U.S. bank and credit union. That makes them a lot less useful than a near-real-time system that’s available to every bank.

"You must build a sector solution that’s open for everybody," Gunnstam says. "If you can secure that, it will be a success."

In Sweden, as consumers use the Swish payment system, "the social media, the blog world, has been extremely positive. And that is very unusual for a bank, I can promise you,” Gunnstam chuckles.

For U.S. banks, that kind of glowing PR is likely to be a long way off. Under the timeline established by the Federal Reserve, the desired completion date for the overhaul is still a decade away.

Vilma Bonilla's insight:

Near real time payment system in the U.S. ~ "In U.S., it takes days for a bank payment to clear. In foreign countries, it happens in seconds."

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Obama administration knew millions could not keep their health insurance

Obama administration knew millions could not keep their health insurance | Cultural Trendz | Scoop.it

By Lisa Myers and Hannah Rappleye, NBC News

President Obama repeatedly assured Americans that after the Affordable Care Act became law, people who liked their health insurance would be able to keep it. But millions of Americans are getting or are about to get cancellation letters for their health insurance under Obamacare, say experts, and the Obama administration has known that for at least three years.

Four sources deeply involved in the Affordable Care Act tell NBC News that 50 to 75 percent of the 14 million consumers who buy their insurance individually can expect to receive a “cancellation” letter or the equivalent over the next year because their existing policies don’t meet the standards mandated by the new health care law. One expert predicts that number could reach as high as 80 percent. And all say that many of those forced to buy pricier new policies will experience “sticker shock.”

None of this should come as a shock to the Obama administration. The law states that policies in effect as of March 23, 2010 will be “grandfathered,” meaning consumers can keep those policies even though they don’t meet requirements of the new health care law. But the Department of Health and Human Services then wrote regulations that narrowed that provision, by saying that if any part of a policy was significantly changed since that date -- the deductible, co-pay, or benefits, for example -- the policy would not be grandfathered.

Buried in Obamacare regulations from July 2010 is an estimate that because of normal turnover in the individual insurance market, “40 to 67 percent” of customers will not be able to keep their policy. And because many policies will have been changed since the key date, “the percentage of individual market policies losing grandfather status in a given year exceeds the 40 to 67 percent range.”  

That means the administration knew that more than 40 to 67 percent of those in the individual market would not be able to keep their plans, even if they liked them.

Yet President Obama, who had promised in 2009, “if you like your health plan, you will be able to keep your health plan,” was still saying in 2012, “If [you] already have health insurance, you will keep your health insurance.”

“This says that when they made the promise, they knew half the people in this market outright couldn’t keep what they had and then they wrote the rules so that others couldn’t make it either,” said  Robert Laszewski, of Health Policy and Strategy Associates, a consultant who works for health industry firms. Laszewski estimates that 80 percent of those in the individual market will not be able to keep their current policies and will have to buy insurance that meets requirements of the new law, which generally requires a richer package of benefits than most policies today.

The White House does not dispute that many in the individual market will lose their current coverage, but argues they will be offered better coverage in its place, and that many will get tax subsidies that would offset any increased costs.

“One of the main goals of the law is to ensure that people have insurance they can rely on – that doesn’t discriminate or charge more based on pre-existing conditions.  The consumers who are getting notices are in plans that do not provide all these protections – but in the vast majority of cases, those same insurers will automatically shift their enrollees to a plan that provides new consumer protections and, for nearly half of individual market enrollees, discounts through premium tax credits,” said White House spokesperson Jessica Santillo.

“Nothing in the Affordable Care Act forces people out of their health plans: The law allows plans that covered people at the time the law was enacted to continue to offer that same coverage to the same enrollees – nothing has changed and that coverage can continue into 2014,” she said.

The Affordable Care Act will not affect most traditional employer-based plans, but many of those who purchased insurance policies on their own will see higher premiums. This is in part due to the 10 essential health benefits insurance providers are now required to include. NBC's Peter Alexander reports.

Individual insurance plans with low premiums often lack basic benefits, such as prescription drug coverage, or carry high deductibles and out-of-pocket costs. The Affordable Care Act requires all companies to offer more benefits, such as mental health care, and also bars companies from denying coverage for preexisting conditions.

Today, White House spokesman Jay Carney was asked about the president’s promise that consumers would be able to keep their health care. “What the president said and what everybody said all along is that there are going to be changes brought about by the Affordable Care Act to create minimum standards of coverage, minimum services that every insurance plan has to provide,” Carney said. “So it's true that there are existing healthcare plans on the individual market that don't meet those minimum standards and therefore do not qualify for the Affordable Care Act.”

Other experts said that most consumers in the individual market will not be able to keep their policies. Nancy Thompson, senior vice president of CBIZ Benefits, which helps companies manage their employee benefits, says numbers in this market are hard to pin down, but that data from states and carriers suggests “anywhere from 50 to 75 percent” of individual policy holders will get cancellation letters. Kansas Insurance Commissioner Sandy Praeger, who chairs the health committee of the National Association of Insurance Commissioners, says that estimate is “probably about right.” She added that a few states are asking insurance companies to cancel and replace policies, rather than just amend them, to avoid confusion.

A spokesman for America's Health Plans says there are no precise numbers on how many will receive cancellations letters or get notices that their current policies don’t meet ACA standards. In both cases, consumers will not be able to keep their current coverage.

Those getting the cancellation letters are often shocked and unhappy.

George Schwab, 62, of North Carolina, said he was "perfectly happy" with his plan from Blue Cross Blue Shield, which also insured his wife for a $228 monthly premium. But this past September, he was surprised to receive a letter saying his policy was no longer available. The "comparable" plan the insurance company offered him carried a $1,208 monthly premium and a $5,500 deductible.

And the best option he’s found on the exchange so far offered a 415 percent jump in premium, to $948 a month.

"The deductible is less," he said, "But the plan doesn't meet my needs. Its unaffordable."

"I'm sitting here looking at this, thinking we ought to just pay the fine and just get insurance when we're sick," Schwab added. "Everybody's worried about whether the website works or not, but that's fixable. That's just the tip of the iceberg. This stuff isn't fixable."
 
Heather Goldwater, 38, of South Carolina, is raising a new baby while running her own PR firm. She said she received a letter last July from Cigna, her insurance company, that said the company would no longer offer her individual plan, and promised to send a letter by October offering a comparable option. So far, she hasn't received anything.
 
"I'm completely overwhelmed with a six-month-old and a business,” said Goldwater. “The last thing I can do is spend hours poring over a website that isn't working, trying to wrap my head around this entire health care overhaul."

Goldwater said she supports the new law and is grateful for provisions helping folks like her with pre-existing conditions, but she worries she won’t be able to afford the new insurance, which is expected to cost more because it has more benefits. "I'm jealous of people who have really good health insurance," she said. "It's people like me who are stuck in the middle who are going to get screwed."
 
Richard Helgren, a Lansing, Mich., retiree, said he was “irate” when he received a letter informing him that his wife Amy's $559 a month health plan was being changed because of the law. The plan the insurer offered raised his deductible from $0 to $2,500, and the company gave him 17 days to decide.

The higher costs spooked him and his wife, who have painstakingly planned for their retirement years. "Every dollar we didn't plan for erodes our standard of living," Helgren said.

Ulltimately, though Helgren opted not to shop through the ACA exchanges, he was able to apply for a good plan with a slightly lower premium through an insurance agent.

He said he never believed President Obama’s promise that people would be able to keep their current plans.

"I heard him only about a thousand times," he said. "I didn't believe him when he said it though because there was just no way that was going to happen. They wrote the regulations so strictly that none of the old polices can grandfather."

For months, Laszewski has warned that some consumers will face sticker shock. He recently got his own notice that he and his wife cannot keep their current policy, which he described as one of the best, so-called "Cadillac" plans offered for 2013. Now, he said, the best comparable plan he found for 2014 has a smaller doctor network, larger out-of-pocket costs, and a 66 percent premium increase.

“Mr. President, I like the coverage I have," Laszweski said. "It is the best health insurance policy you can buy."

Vilma Bonilla's insight:

Strict regulation will chip away at grandfathered plans. The new policies will cover more and will be more expensive..

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