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Thread: Rights of Military Personnel

  1. #1
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    Rights of Military Personnel

    I'm having an argument with my well intentioned but mistaken Lieutenant.

    We work in a classified area, and cellular telephones are not permitted into the area - for a multitude of reasons.

    We are trying to formulate our plan of action for when someone mistakenly brings their personal cell phone into the area.

    The Lt is of the opinion that we can:
    Confiscate the phone from the member
    Search the phone for classified information
    Delete any photos / documents that were on the phone
    Have the member log into "the cloud" or whatever so we can search for information that may have been uploaded

    All of the above is based on the sign on the door saying "property is subject to search per order of the installation commander" without any consent from the member.

    My opinion is that in order to do any of that past confiscating the phone - we need either the member's permission (once he/she gives permission all bets are off in my opinion - same as with letting a cop search your car) or written approval for this action by AT LEAST the installation commander (almost a search warrant).

    I'm pretty sure that personal property rights do not get tossed out the window once you've enlisted. Granted - the probable cause for the commander to allow me to search your phone that was in my vault is pretty much guaranteed, but I still need some type of oversight.

    Does anyone know a good place to start in the UCMJ for this info?

    I'm going through Air Force regs now and I'm hoping there is a WABer who has experience with this that can point me in the right direction.


    Thanks
    "Bother", said Poo, chambering another round.

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    Go ask JAG

    They are the experts.
    "The genius of you Americans is that you make no clear-cut stupid moves, only complicated stupid moves which make us wonder at the possibility that there may be something to them we are missing." - Gamal Abdel Nasser

  3. #3
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    Quote Originally Posted by Albany Rifles View Post
    Go ask JAG

    They are the experts.
    True - they are also only in during UTA Weekends (Unit Training Assemblies).

    I'm full time National Guard, and trying to keep my Lt out of jail (and prove him wrong) without waiting for the UTA weekend.
    "Bother", said Poo, chambering another round.

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    That's definitely a question for the JAG and also for the Instillation Commander, Base Security and the Officer in Charge of the CMCC.

    Lots hinge on the type and level of the classified material. And what the Commander wants to do within regulations. Remember its his classified material.

    In my experience rules are very different when dealing with an area that contains Confidential/Secret, and one that contains TS. Lots also depend on any special handling restrictions

    We are trying to formulate our plan of action for when someone mistakenly brings their personal cell phone into the area.
    Don't let it happen. This has to do with entry procedures into the area. I have worked in places where we had to empty pockets and show that we didn't have any prohibited material , be verified on the access roster and sign in by a guard at the door. And those rules applied from the lowest private to Commander US Forces (That area)
    Its called Tourist Season. So why can't we shoot them?

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    Quote Originally Posted by tuna View Post
    I'm having an argument with my well intentioned but mistaken Lieutenant.

    We work in a classified area, and cellular telephones are not permitted into the area - for a multitude of reasons.

    We are trying to formulate our plan of action for when someone mistakenly brings their personal cell phone into the area.

    The Lt is of the opinion that we can:
    Confiscate the phone from the member
    Search the phone for classified information
    Delete any photos / documents that were on the phone
    Have the member log into "the cloud" or whatever so we can search for information that may have been uploaded

    All of the above is based on the sign on the door saying "property is subject to search per order of the installation commander" without any consent from the member.

    My opinion is that in order to do any of that past confiscating the phone - we need either the member's permission (once he/she gives permission all bets are off in my opinion - same as with letting a cop search your car) or written approval for this action by AT LEAST the installation commander (almost a search warrant).

    I'm pretty sure that personal property rights do not get tossed out the window once you've enlisted. Granted - the probable cause for the commander to allow me to search your phone that was in my vault is pretty much guaranteed, but I still need some type of oversight.

    Does anyone know a good place to start in the UCMJ for this info?

    I'm going through Air Force regs now and I'm hoping there is a WABer who has experience with this that can point me in the right direction.


    Thanks
    You'd turn the phone over to the security office and they would handle it from there. Your job is to prevent phones from getting in and stopping them from being used if you spot one. Your best bet to avoid having cell phones enter is to place small lockers outside of the room (they provide a visual reminder and provide confidence that they won't get taken), or barring funds for that, provide a conspicuous phone "humidor" just inside the room at the entrance for cell phones to be placed.
    "So little pains do the vulgar take in the investigation of truth, accepting readily the first story that comes to hand." Thucydides 1.20.3

  6. #6
    Senior Contributor DOR's Avatar
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    Simple solution: anyone entering the area must sign a document authorizing the level of search necessary.
    Regular staff would have this on file, just like some bosses (e.g., POTUS) hold letters of resignation until needed.

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    Pretty sure a clearly posted sign creates implied consent, let us know what JAG says.

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    Thanks for the help so far - I'm still trudging through.

    What I've found so far pretty much jibes with what I thought. Without approval from the member or commander - the phone cannot be searched. I can confiscate it and have it destroyed, but not search it - I'm sure I'll find a contradictory reg soon... Thus, the member "should" give permission to avoid losing their phone based on common sense, but doesn't have to.

    As for not letting them in - we've got everything mentioned but a guard checking pockets, which is impractical. We're trying to make sure that our "Oh crap" plan is legal and protects both security and the member's rights.

    I'm also finding out, as usual, that a lot of "regs" that have been quoted through the years don't really exist, it's just no one has ever questioned them.
    "Bother", said Poo, chambering another round.

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    Quote Originally Posted by tuna View Post
    Does anyone know a good place to start in the UCMJ for this info?
    Sounds like the perfect Article 134 to me. It's kind of like Mom saying, "Because I said so!"

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    Quote Originally Posted by desertswo View Post
    Sounds like the perfect Article 134 to me. It's kind of like Mom saying, "Because I said so!"
    I was looking more in line with Article 31 - Prohibition against Compulsory Self Incrimination...
    "Bother", said Poo, chambering another round.

  11. #11
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    Tuna,
    Any update on this?
    Far better it is to dare mighty things, than to take rank with those poor, timid spirits who know neither victory nor defeat ~ Theodore Roosevelt

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    Quote Originally Posted by tuna View Post
    I'm having an argument with my well intentioned but mistaken Lieutenant.

    We work in a classified area, and cellular telephones are not permitted into the area - for a multitude of reasons.

    We are trying to formulate our plan of action for when someone mistakenly brings their personal cell phone into the area.

    The Lt is of the opinion that we can:
    Confiscate the phone from the member
    Search the phone for classified information
    Delete any photos / documents that were on the phone
    Have the member log into "the cloud" or whatever so we can search for information that may have been uploaded

    All of the above is based on the sign on the door saying "property is subject to search per order of the installation commander" without any consent from the member.

    My opinion is that in order to do any of that past confiscating the phone - we need either the member's permission (once he/she gives permission all bets are off in my opinion - same as with letting a cop search your car) or written approval for this action by AT LEAST the installation commander (almost a search warrant).

    I'm pretty sure that personal property rights do not get tossed out the window once you've enlisted. Granted - the probable cause for the commander to allow me to search your phone that was in my vault is pretty much guaranteed, but I still need some type of oversight.

    Does anyone know a good place to start in the UCMJ for this info?

    I'm going through Air Force regs now and I'm hoping there is a WABer who has experience with this that can point me in the right direction.


    Thanks
    Quote Originally Posted by tuna View Post
    Thanks for the help so far - I'm still trudging through.

    What I've found so far pretty much jibes with what I thought. Without approval from the member or commander - the phone cannot be searched. I can confiscate it and have it destroyed, but not search it - I'm sure I'll find a contradictory reg soon... Thus, the member "should" give permission to avoid losing their phone based on common sense, but doesn't have to.

    As for not letting them in - we've got everything mentioned but a guard checking pockets, which is impractical. We're trying to make sure that our "Oh crap" plan is legal and protects both security and the member's rights.

    I'm also finding out, as usual, that a lot of "regs" that have been quoted through the years don't really exist, it's just no one has ever questioned them.
    So...my two cents as an assistant security manager are this...

    Your overall security manager and/or SSO has the authority to confiscate the phone and turn it over for forensic evaluation. The servicemember has absolutely no say in this...The CO, hmm...not so much either - if the SM determines it to be a threat, then they have every right to turn it over to AFOSI/NCIS. This is because even CO's can get busted for this (I've seen it happen, hilarious). I would only do this if the person is a repeat offender, or raising suspicions.

    That being said, if this person is on the access list, then they have probably signed a Page 13 about this...then sure, you can bust their balls. But, if it was someone that is an owner of the space and allowed someone in that had a phone and didnt check them - then that is going to look really bad on you guys. Because YOU are supposed to be that guard at the door that makes them check their electronics at the door.

    Bottomline, you don't have to immediately confiscate the phone, but don't tolerate violations in excess, because your SCIF/space could lose accreditation.
    "We are all special cases." - Camus

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    Quote Originally Posted by Squirrel View Post
    So...my two cents as an assistant security manager are this...

    Your overall security manager and/or SSO has the authority to confiscate the phone and turn it over for forensic evaluation. The servicemember has absolutely no say in this...The CO, hmm...not so much either - if the SM determines it to be a threat, then they have every right to turn it over to AFOSI/NCIS. This is because even CO's can get busted for this (I've seen it happen, hilarious). I would only do this if the person is a repeat offender, or raising suspicions.

    That being said, if this person is on the access list, then they have probably signed a Page 13 about this...then sure, you can bust their balls. But, if it was someone that is an owner of the space and allowed someone in that had a phone and didnt check them - then that is going to look really bad on you guys. Because YOU are supposed to be that guard at the door that makes them check their electronics at the door.

    Bottomline, you don't have to immediately confiscate the phone, but don't tolerate violations in excess, because your SCIF/space could lose accreditation.
    Here's the thing about the original questions you quoted; email, unlike snail mail, has not been held by the Supreme Court as being private and therefore not subject to search limitations. Seems to me, it's not that big a step to confiscate the phone and check IMs, etc.

    Beyond that, true story, I was on the Joint Staff from '98 to '01, and cameras or anything that could be used like a camera were not allowed (the cellphones themselves would not work inside all that concrete) in any office, which were all SCIFs, but there was one other item not allowed . . .

    Attachment 39457

    Let's see if the younger folks know why.

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    Quote Originally Posted by desertswo View Post
    Here's the thing about the original questions you quoted; email, unlike snail mail, has not been held by the Supreme Court as being private and therefore not subject to search limitations. Seems to me, it's not that big a step to confiscate the phone and check IMs, etc.

    Beyond that, true story, I was on the Joint Staff from '98 to '01, and cameras or anything that could be used like a camera were not allowed (the cellphones themselves would not work inside all that concrete) in any office, which were all SCIFs, but there was one other item not allowed . . .

    Attachment 39457

    Let's see if the younger folks know why.
    Well, yes, the SM/SSO could look at the contents of the phone, but the owner would have to be cooperative and give them the code to unlock it. AFOSI/NCIS could do a much more detailed exploitation of the device.

    Nowdays, it's not so much about the phone transmitting while in the space, but the ability for phones to be collecting data and transmitting it later - even if the person doesnt realize that their phone is doing this.

    And, I am not that young Sir...I get it. We still wouldnt allow it today.
    "We are all special cases." - Camus

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    I'm glad we didn't have these issues when I was in.
    We just had to worry about floppy disks.

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