Can the Constitution Protect Digital Policing?

From small-town police forces to major metropolitan squads, technology has supplanted traditional policing tactics.

But the new digital tool of American policing —ranging from GPS surveillance to facial recognition and artificial intelligence — is rife with all of policing’s old problems. Embedded in law enforcement’s high-tech repertoire, for one, is programmatic bias.

These technologies, too, are fundamentally unlike their “in-person” equivalents.

That’s the argument advanced by Andrew Guthrie Ferguson in “Why Digital Policing is Different,” a forthcoming Ohio State Law Journal article.

Ferguson, a law professor at American University Washington College of Law, argues that courts must apply a “different Fourth Amendment approach” to cases involving digital police technology, approaching the latter “not as enhancements of traditional analog policing practices, but as something completely different.”

Fourth Amendment debates, Ferguson explains, often apply the same constitutional principles to questions of digital and physical police tactics. But for all their apparent similarities, these seemingly similar technologies necessitate different legal approaches.

A detective staking out a home in a squad car, for instance, is fundamentally different from an agent affixing a camera to a pole and monitoring that building on surveillance footage.

“While superficially similar, in truth, everything from the act to the result is different in the digital world and needs to be appreciated as such,” Ferguson writes.

“Properly understood, certain digital searches should be legally distinguishable from analog search precedent such that the latter cases are no longer controlling law.”

Written in response to a series of “antiquated technologies,” the Fourth Amendment is insufficient to resolve legal disputes about city-wide camera systems, self-driving smart cars, and sensor-equipped drones.

Its grounding in cassette tape technology — such was the technology in Katz v. United States that gave rise to the “reasonable expectation of privacy” test and current Fourth Amendment doctrine, as Ferguson writes — makes the amendment no match to contend with contemporary, algorithm-based tactics.

Although certain court cases — Riley v. California, United States v. Jones, and Carpenter v. United States — have underscored the principle that “digital is different,” new digital technologies continue to develop, many of which remain out-of-step with the technological principles that originally dictated the Fourth Amendment.

Take, for example, the “Persistent Surveillance Planes, ” a drone pilot program launched by the Baltimore Police Department in 2016 and then revived in 2020  to record all vehicle and pedestrian movements with digital cameras.

Altogether unlike the cassette tapes of the past, the aerial mechanics were exceedingly technical; this tactic afforded analysts second-by-second footage of Baltimore streets and enabled prosecutors to examine such precise footage in trial.

“At a gut level, it is easy to see that there is a difference between a plane flying over a single backyard, and a plane that can record all the backyards in a city,” Ferguson writes.

To adapt the Fourth Amendment to the unending spate of sophisticated police tactics, Ferguson proposes a “digitally aware Fourth Amendment.”

The study doesn’t advance a new Fourth Amendment search theory; nevertheless, Ferguson articulates the need for a constitutional amendment that acknowledges the fundamental differences between physical and digital police tactics.

“Digital surveillance is already changing policing,” Ferguson writes. “The still open question is how will it change the Fourth Amendment.”

The Ohio State Law Journal article can be downloaded here.

Eva Herscowitz is a contributing writer to The Crime Report.

via The Crime Report

July 31, 2022 at 10:51PM

Court Says Cops Can’t Search People’s Garbage Without A Warrant

A search is a search, even when the intrusion is minimal. The court cites the US Supreme Court’s Jones decision, which said the warrantless placement of a tracking device on a vehicle was a trespass.

Here, Heinz testified he opened the garbage to “obtain information about what Mr. Wright may have been doing inside [his] house” and obtain evidence “related to drug activity.” A constitutional search occurs whenever the government commits a physical trespass against property, even where de minimis, conjoined with “an attempt to find something or to obtain information.”

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June 25, 2021 at 11:50AM

“Cops Say Encryption Hinders Investigations. These Documents Say Otherwise.”

Despite much whining on the part of law enforcement about the alleged perils to public order posed by encryption, it’s no secret that cops can often bypass measures intended to protect privacy. Now, documents obtained by Vice‘s Motherboard describe just how police agencies use one tool to extract data from Apple devices. It’s more evidence that officials aren’t stymied by encryption half as often as they claim, but just want to paw through our information without effort or expense.

“‘How to unlock and EXTRACT DATA from Apple Mobile Devices with GrayKey,’ the instructions, seemingly written by the San Diego Police Department, read,” Vice‘s Joseph Cox reveals of the documentation obtained with a public records request. “The instructions describe the various conditions it claims allow a GrayKey connection: the device being turned off (known as Before First Unlock, or BFU); the phone is turned on (After First Unlock, or AFU); the device having a damaged display, and when the phone has low battery,” he adds.

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June 28, 2021 at 08:36PM

“A whiff of pot alone no longer airtight probable cause for police to search cars in several states”

In other states where marijuana is legal, the rules regarding searches are being hammered out in the courts. In Maryland, for instance, where 10 grams or less of marijuana has been decriminalized, an appellate court concluded in April that the odor of marijuana by itself does not provide reasonable suspicion of criminal activity, and thus the search of a pedestrian on this basis was unreasonable under the Fourth Amendment.

The Colorado Supreme Court threw out a drug conviction in 2019 because police had no justification for having a dog sniff the defendant’s truck, given that they had no reasonable suspicion a crime was being committed now that marijuana is legal there.

Yet last year, the high court in Michigan said evidence of illegal guns and drugs should not be suppressed, saying the odor of marijuana was sufficient to justify a warrantless search, and that the defendant initially denying having any made the officer believe he had more than the 2.5 ounces allowed by law.

And in March in Florida, where only medical marijuana has been decriminalized, an appellate court ruled the smell of marijuana was enough to justify a search, particularly if the vehicle was being driven recklessly or erratically.

via CrimProf Blog

June 29, 2021 at 03:51PM

Supreme Court Weighs in on Warrantless Searches of Phones, Laptops at Border

A lawsuit has been brought before the Supreme Court by eight plaintiffs challenging warrantless searches of phones and other devices at the U.S. border, reports USA Today. U.S. Customs and Border Protection reports it performed 40,913 so-called basic searches of electronic devices in 2019, a 22 percent increase from the prior fiscal year. Those searches involve an officer looking through a phone – reading emails, texts and calendar items – without the help of third-party software. Varying opinions by different appeals courts on border officials authority in these circumstances around the country means that an international passenger entering the United States at Boston Logan International Airport faces a different set of rules than if that same passenger touches down in Los Angeles.

The government told the high court in May that federal agencies “enforce a wide range of federal laws at the border” and said that the court’s past precedents permit the device searches while the Biden administration said that the plaintiffs have not established what happened when agents seized their phones. In a statement, U.S. Customs and Border Protection said searches have helped to detect terrorist activity and thwart international crimes. The American Civil Liberties Union, argues that phones, computers and other devices chock full of personal information should be subject to a higher standard than a passenger’s luggage.

via The Crime Report

June 22, 2021 at 11:06AM

Supreme Court Finds Cops Cannot Simply Barge into a Home in Pursuit of Someone Suspected of a Misdemeanor

The Supreme Court ruled 9-0 on Wednesday in Lange v. California that the police are not universally authorized to make warrantless entries into private homes based on an officer’s suspicion that a person has committed a misdemeanor-level offense.

The case presented a tough question for the Court, and it became clear during oral arguments that justices were loathe to create a categorical rule would extend an exception to the warrant rule to every case involving a suspected misdemeanor.

The facts are as follows.  A police officer followed Arthur Gregory Lange one night as Lange drove home listening to loud music and honking his horn. As Lange approached his own driveway, the officer (who had, at that point activated his signal lights), continued to trail him. Lange opened his own garage door, pulled into the garage, and tried to close the electric garage door before the officer could follow him.

The officer, however, exited his squad car, stuck his foot under Lange’s garage door, and stopped the door from closing. When the officer got close to Lange, the officer allegedly smelled alcohol on Lange’s breath. The officer then ordered Lange out of the garage for a DUI investigation.

All this was done without a warrant. The officer maintained that under the Fourth Amendment, no warrant was necessary given that he had been in hot pursuit of Lange — an example of “exigent circumstances” that justify a warrantless search under a long-recognized exception to the constitutional requirement of a warrant as a general matter of law.

The case was complicated by the nature of the crime upon which the officer had based his warrantless search; the officer maintained that he believed Lange had committed misdemeanor violations of the California Vehicle Code by playing music and honking.

The Supreme Court decided that while suspicion of some misdemeanors might form the basis of a proper warrantless search, the rule is not absolute across all misdemeanors.

Justice Elena Kagan wrote for the Court, explaining the rationale behind the long-standing rule which allows warrantless searches in certain more serious circumstances:

One important exception is for exigent circumstances. It applies when “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.” The exception enables law enforcement officers to handle “emergenc[ies]”—situations presenting a “compelling need for official action and no time to secure a warrant.

Misdemeanors, however, range in seriousness from the violent to the trivial; therefore, the court ruled that the commission of a misdemeanor should not trigger any across-the-board right for police to enter a home without a warrant. Rather, Kagan explained, the gravity of the offense and the surrounding circumstances must be examined on case-by-case basis in order to determine whether the police are justified in departing from the usual Fourth Amendment requirement that a warrant be issued by a neutral magistrate upon a showing of probable cause prior to any police search.

Although the Court’s ruling was a win for Lange, it is by no means a basis to invalidate an entire class of warrantless searches. Moreover, Lange’s win may be short-lived, as the case is remanded for the lower court to determine whether the officer’s entry had been appropriate.

Kagan explained that the ruling declined to create a categorical rule applicable to all suspected misdemeanants:

When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances, as described just above, include the flight itself. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency.

Kagan concluded:

On many occasions, the officer will have good reason to enter — to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so — even though the misdemeanant fled.

While all the justices agreed with the outcome in the Lange case, several justices opted to pen their own concurrences, elaborating on their reasoning.

Chief Justice John Roberts wrote his own opinion, which was joined by Justice Samuel Alito — and it sounded more like a dissent than a concurrence. Specifically, Roberts and Alito took issue with the Court’s holding that flight itself is insufficient to trigger an exception to the warrant requirement.

“Suppose a police officer on patrol responds to a report of a man assaulting a teenager,” Roberts hypothesized. He laid out the hypothetical problem as follows:

Arriving at the scene, the officer sees the teenager vainly trying to ward off the assailant. The officer attempts to place the assailant under arrest, but he takes off on foot. He leads the officer on a chase over several blocks as the officer yells for him to stop. With the officer closing in, the suspect leaps over a fence and then stands on a home’s front yard. He claims it’s his home and tells the officer to stay away. What is the officer to do?

Roberts reasoned that both the Fourth Amendment and common sense support the officer’s right to proceed without a warrant. Requiring the police to obtain a warrant in this situation would cause delay such that “the suspect may stroll into the home and then dash out the back door,” or perhaps worse, that the suspect could “get a gun and take aim from inside.”

According to Roberts, the issue isn’t whether the suspect may have committed a misdemeanor or a felony, but rather, that the person fled. “It is the flight, not the underlying offense, that has always been understood to justify the general rule” which excuses the need for a warrant, explained the Chief Justice.  “The Court errs by departing from that well-established rule.”

Justice Brett Kavanaugh penned his own concurrence highlighting his agreement with Roberts’ point, but Kavanaugh took a distinct “there’s more that unites us than divides us” approach to the case.

“[I]n my view,” Kavanaugh wrote, “there is almost no daylight in practice between the Court’s opinion and THE CHIEF JUSTICE’s opinion concurring in the judgment.”

Calling Roberts’ concurrence “thoughtful,” Kavanaugh explained that in his view, fleeing misdemeanants “will almost always also involve a recognized exigent circumstance — such as a risk of escape, destruction of evidence, or harm to others,” and that therefore, Kagan’s and Roberts’ approaches may contain distinctions without meaningful differences.

Justice Clarence Thomas authored a concurrence of his own, which was joined in part by Justice Kavanaugh. Thomas wrote:

I write separately to note two things: the general case-by-case rule that the Court announces today is subject to historical, categorical exceptions; and under our precedent, the federal exclusionary rule does not apply to evidence discovered in the course of pursuing a fleeing suspect.

Justice Thomas detailed some examples of relevant “historical, categorical exceptions,” such as a person escaping after having been arrested, or a person en route to committing a felony.

On another topic entirely, Justice Thomas took the opportunity to make a point with which Justice Kavanaugh agreed: “even if the state courts on remand conclude that the officer’s entry here was unlawful, the federal exclusionary rule does not require suppressing any evidence.”

If the court below ultimately finds that entering Lange’s home was illegal, Lange might have some remedy at law — but that remedy does not require that evidence the officer obtained be suppressed.

[image via Erin Schaff/pool/AFP via Getty Images]

The post Supreme Court Finds Cops Cannot Simply Barge into a Home in Pursuit of Someone Suspected of a Misdemeanor first appeared on Law & Crime.

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June 23, 2021 at 12:19PM

Can the FBI Seize Millions From Customers of Private Company Under Indictment?

While U.S. Private Vaults, a Beverly Hills safe deposit box company, has been charged in a sealed indictment with conspiring to sell drugs and launder money, its customers have not, and now the FBI trying to confiscate $86 million in cash and millions of dollars more in jewelry and other valuables that agents found in 369 of the boxes in what box holders and their lawyers have denounced as a brazen abuse of forfeiture laws, reports the Los Angeles Times. Prosecutors claim the forfeiture is justified because the unnamed box holders were engaged in criminal activity but have disclosed no evidence to support the allegation. Attorneys for the customers say that if the FBI wanted to search the boxes it first needed to meet the standard for a court-issued warrant: Probable cause that evidence of specific crimes would be found. Forfeiture laws enable the government to confiscate assets tied to criminal activity. The generally low standard of proof makes it an appealing tool for prosecutors.

The indictment says U.S. Private Vaults marketed itself to attract criminals who wanted to store valuables anonymously and keep tax authorities at bay. An owner and a manager of U.S. Private Vaults were involved in drug sales, it says, and co-conspirators helped customers convert cash into gold to evade government suspicion. Proponents of forfeiture say it deters crime with the threat that cash, cars and other property acquired illegally, or used for illicit purposes, might be confiscated. Critics, however, say it is often abused by police and prosecutors who can seize of people’s property even if they lack evidence to prove their guilt in a criminal trial. In their lawsuits, box holders claim the FBI is forcing them to give up either their Fourth Amendment protection against unreasonable searches and seizures or their Fifth Amendment right not to incriminate themselves.

via The Crime Report

June 10, 2021 at 11:29AM

The FBI Returned This Innocent Couple’s Safe Deposit Box. It Refuses To Give Back Many Others—and Is Trying To Seize $85 Million in Cash.

“The silence is deafening,” said attorney Jennifer Snitko, who briefly choked up on Thursday as she exited the West Los Angeles Federal Building on Wilshire Boulevard, home to the FBI’s area field office.

She’d just piled into a small interrogation room to meet with two agents. Rifling through a brown paper bag, she furnished a series of documents and items recently withdrawn from sterile bags marked EVIDENCE. None seemed more out of place than a folded, thin white paper with a cross. It was a baptismal certificate.

“Evidence of what?” asks her husband Paul Snitko.

They’re still not sure. Jennifer wasn’t there to defend a client. It was her and her husband in the hot seat, tasked with proving that they were worthy of retrieving a trove of deeply personal items that the FBI seized about three months ago—without a warrant—from the U.S. Private Vaults (USPV) in Beverly Hills, California.

Eric Boehm, who reported this story for Reason last month, notes that on March 22, law enforcement officials with the bureau raided the establishment as part of an ongoing criminal investigation into the business itself. The warrant allowed agents to confiscate a laundry list of things: the company’s security cameras, computers, the steel frames that nest the containers. Deemed off-limits: “a criminal search or seizure of the contents of the safe-deposit boxes.”

The agents were unfazed. They did it anyway, wantonly rummaging through the personal property in approximately 800 boxes—belonging to people who were not suspected of committing any crimes—and then holding those items hostage. (If you feel like getting mad today, feel free to watch them in action.)

“It’s changed me,” says Jennifer. “The emotional impact this has had on me is unlike anything I’ve ever experienced….To have this type of sustained stress, insecurity, uncertainty as to what’s happening next…to constantly have to be making this a priority in your mind to get your stuff back is just, it’s not only emotionally draining.” She pauses. “I don’t even know how to describe it….I will not look at life the same.”

Paul’s reaction has admittedly been a bit more erratic. “There was the shock, and the anger, and then the extraordinary anxiety that came the day after I read [about the raid],” referencing a Los Angeles Times article in April detailing the search—which is how he found out about it. His apprehension makes sense for obvious reasons. Yet that’s only exacerbated by the fact that the piece partially reads like an FBI press release, centered around prosecutorial allegations that agents seized the bulk of the property from “drug dealers” who were anonymously allowed to “stash guns, fentanyl, and stacks of $100 bills in security boxes.”

In the Snitkos’ box, along with the baptismal certificate: a pilot’s log, heirloom jewelry, collectible coins, a marriage certificate, a birth certificate.

The day after he read it, “I woke up,” he says, “and I was looking at the ceiling, and my heart was racing, and I’m like ‘Now what?’ The FBI has my stuff. Where is it? Why do they have it? How long are they going to keep it? Am I a criminal? You start to make ridiculous assessments like that.” He notes that he fell into a depression after processing the news.

“Not only was my stuff taken without just cause…It was taken by my own government, and they were asking me to prove my innocence and subject myself to an investigation to get my stuff back, which was unlawfully taken to begin with, and had no evidentiary value.”

Perhaps most pitiful is that the Snitkos are two of the lucky ones in this story. That word feels ill-fitting for anyone in their shoes. But while the FBI has acquiesced to giving select deposit boxes back, including the one owned by the Snitkos, they are refusing to surrender others, seeking instead to keep a collective $85 million in cash and an unspecified amount of gold, silver, and precious metals from unsuspecting people.

That includes Travis May, who stored gold and $63,000 in cash, and Joseph Ruiz, who had $57,000 in his box—his life savings, which he uses to pay his living and medical expenses, according to a recently amended lawsuit.

“After the government seized this property on March 22, 2021, [Ruiz] filed a claim with the FBI to retrieve it,” notes the complaint from the Institute for Justice (IJ), a libertarian public interest law firm representing both men. “However, the government has informed attorneys for USPV that it intends to civilly forfeit Joseph’s property. At this time, the government has not provided Joseph with any notice of the purported civil forfeiture proceeding.”

Travis May

May, who is on the board of trustees at Reason Foundation, the nonprofit that publishes this website, is “not the least bit surprised,” he says. “I never suspected it in a million years, but on the other hand, when it happened, I just wasn’t surprised.”

He is, however, righteously angry. “We’re raised with the understanding that you have a right to privacy in this country,” he tells Reason. “They targeted [USPV] for the specific reason that there’s privacy there.”

It appears agents at the West L.A. Federal Building care a great deal about their own privacy, however. A group of officers threatened to arrest me yesterday for waiting outside in the courtyard, where I posted up to take pictures of the Snitkos exiting the building. I needed a media permit, they said.

Yet parsing through the clients listed on the lawsuit, it’s hard not to conclude that this is part of the federal government’s war on privacy. It’s also likely part of their war on cash tender. The FBI seemingly has little desire to hold onto baptismal certificates or personal documents, but when it comes to silver, gold, and cold hard cash, they suddenly have an interest. Should the government succeed, plaintiffs Jeni Verdon-Pearsons and Michael Storc, for instance, will forcibly donate their silver, though the suit notes that they, too, have not been provided with “the factual or legal basis for the purported civil forfeiture proceeding.”

There’s the obvious implication: The government wants the proceeds. But there’s also the notion that carrying or storing large sums of money somehow incriminates you in the drug trade, evocative of the Department of Homeland Security’s sordid record of habitually seizing large sums of cash from airport travelers.

“What happened in this case is just an absolute staggering Fourth Amendment violation,” says Robert Johnson, an attorney with IJ. “There was no probable cause to think any of the box holders committed a crime.”

That includes the Snitkos, who finally have their stuff back. But it also includes May, Ruiz, Verdon-Pearsons, Storc, and numerous others who don’t, and who might never.

“What about the people who are so scared to come forward, that didn’t do anything wrong, that don’t feel like they have a voice, that don’t have someone supporting them?” asks Jennifer. “It makes me feel like the government is preying on the vulnerable and the weak to line their own pockets.”

I ask Paul how he’d respond if all of the systems, levers, and agents who violated his rights were aggregated into one person standing before him. What would he say? The Fourth Amendment “is not a lesson in civics,” he responds. “The Bill of Rights was established in 1791—read it.”

via Criminal Justice –

June 11, 2021 at 05:16PM

Supreme Court Allows Tribal Police to Detain Non-Indians

A Ninth Circuit decision, which limited tribal police authority on public highways within reservation boundaries, has been overturned by the U.S. Supreme Court, allowing tribal police the ability to detain non-Indian suspects. Previously, the Supreme Court held that tribal police had little authority over non-Indians, reports AP News.

The unanimous decision Tuesday was a turning point for Native American law cases at the High Court, amounting to a break from a reliance on “racist precedents” for guidance,  Mary Kathryn Nagle of Pipestem Law LLC, counsel for amicus National Indigenous Women’s Resource Center told Law360.

“Non-Indians…have had this expectation that they can go onto tribal lands and commit crimes with impunity, because the tribe won’t have criminal jurisdiction to prosecute them,” said Nagle, a citizen of the Cherokee Nation of Oklahoma.

Colette Routel of the Mitchell Hamline School of Law, counsel for amici Native American law and policy professors, called the 9-0 decision “pretty rare” for Native American cases.

“The court had the opportunity to decide this case on narrow grounds that may not have applied to all of Indian Country,” Routel told Law360.

“But the Supreme Court decided to render a decision that was broader than that and applies to all of Indian Country by deciding for the first time ever that the second Montana exception was satisfied.”

The original case concerns former highway safety officer James Saylor of the Crow Tribe of Montana who was prevented from temporarily detaining and search Joshua James Cooley, a non-Indian. Cooley was later arrested by county law enforcement and indicted on drug trafficking and firearm charges.

Explaining the decision, Supreme Court Justice Stephen Breyer cited a precedent from a 1981 case, Montana v. United States, in which the court ruled tribes couldn’t regulate hunting and fishing on reservations unless conduct threatens or directly impacts the health or wellbeing of the tribe.

“To deny a tribal police officer authority to search and detain for a reasonable time any person he or she believes may commit or has committed a crime would make it difficult for tribes to protect themselves against ongoing threats,” Breyer said.

“We see nothing in these provisions that shows that Congress sought to deny tribes the authority at issue, authority that rests upon a tribe’s retention of sovereignty as interpreted by Montana, and in particular its second exception.”

This summary was prepared by TCR Justice Reporting intern Gabriela Felitto

via The Crime Report

June 2, 2021 at 07:31AM

The FBI Should Stop Attacking Encryption and Tell Congress About All the Encrypted Phones It’s Already Hacking Into

Federal law enforcement has been asking for a backdoor to read Americans’ encrypted communications for years now. FBI Director Christopher Wray did it again last week in testimony to the Senate Judiciary Committee. As usual, the FBI’s complaints involved end-to-end encryption employed by popular messaging platforms, as well as the at-rest encryption of digital devices, which Wray described as offering “user-only access.”

The FBI wants these terms to sound scary, but they actually describe security best practices. End-to-end encryption is what allows users to exchange messages without having them intercepted and read by repressive governments, corporations, and other bad actors. And “user-only access” is actually a perfect encapsulation of how device encryption should work; otherwise, anyone who got their hands on your phone or laptop—a thief, an abusive partner, or an employer—could access its most sensitive data. When you intentionally weaken these systems, it hurts our security and privacy, because there’s no magical kind of access that only works for the good guys. If Wray gets his special pass to listen in on our conversations and access our devices, corporations, criminals, and authoritarians will be able to get the same access.

It’s remarkable that Wray keeps getting invited to Congress to sing the same song. Notably, Wray was invited there to talk, in part, about the January 6th insurrection, a serious domestic attack in which the attackers—far from being concerned about secrecy—proudly broadcast many of their crimes, resulting in hundreds of arrests.

It’s also remarkable what Wray, once more, chose to leave out of this narrative. While Wray continues to express frustration about what his agents can’t get access to, he fails to brief Senators about the shocking frequency with which his agency already accesses Americans’ smartphones. Nevertheless, the scope of police snooping on Americans’ mobile phones is becoming clear, and it’s not just the FBI who is doing it. Instead of inviting Wray up to Capitol Hill to ask for special ways to invade our privacy and security, Senators should be asking Wray about the private data his agents are already trawling through.

Police Have An Incredible Number of Ways to Break Into Encrypted Phones

In all 50 states, police are breaking into phones on a vast scale. An October report from the non-profit Upturn, “Mass Extraction,” has revealed details of how invasive and widespread police hacking of our phones has become. Police can easily purchase forensic tools that extract data from nearly every popular phone. In March 2016, Cellebrite, a popular forensic tool company, supported “logical extractions” for 8,393 different devices, and “physical extractions,” which involves copying all the data on a phone bit-by-bit, for 4,254 devices. Cellebrite can bypass lock screens on about 1,500 different devices.

How do they bypass encryption? Often, they just guess the password. In 2018, Prof. Matthew Green estimated it would take no more than 22 hours for forensic tools to break into some older iPhones with a 6-digit passcode simply by continuously guessing passwords (i.e. “brute-force” entry). A 4-digit passcode would fail in about 13 minutes.

That brute force guessing was enabled by a hardware flaw that has been fixed since 2018, and the rate of password guessing is much more limited now. But even as smartphone companies like Apple improve their security, device hacking remains very much a cat-and-mouse game. As recently as September 2020, Cellebrite marketing materials boasted its tools can break into iPhone devices up to “the latest iPhone 11/ 11 Pro / Max running the latest iOS versions up to the latest 13.4.1”

Even when passwords can’t be broken, vendors like Cellebrite offer “advanced services” that can unlock even the newest iOS and Samsung devices. Upturn research suggests the base price on such services is $1,950, but it can be cheaper in bulk.

Buying electronic break-in technology on a wholesale basis represents the best deal for police departments around the U.S., and they avail themselves of these bargains regularly. In 2018, the Seattle Police Department purchased 20 such “actions” from Cellebrite for $33,000, allowing them to extract phone data within weeks or even days. Law enforcement agencies that want to unlock phones en masse can bring Cellebrite’s “advanced unlocking” in-house, for prices that range from $75,000 to $150,000.

That means for most police departments, breaking into phones isn’t just convenient, it’s relatively inexpensive. Even a mid-sized police department like Virginia Beach, VA has a police budget of more than $100 million; New York City’s police budget is over $5 billion. The FBI’s 2020 budget request is about $9 billion.

When the FBI says it’s “going dark” because it can’t beat encryption, what it’s really asking for is a method of breaking in that’s cheaper, easier, and more reliable than the methods they already have. The only way to fully meet the FBI’s demands would be to require a backdoor in all platforms, applications, and devices. Especially at a time when police abuses nationwide have come into new focus, this type of complaint should be a non-starter with elected officials. Instead, they should be questioning how and why police are already dodging encryption. These techniques aren’t just being used against criminals.

Phone Searches By Police Are Widespread and Commonplace

Upturn has documented more than 2,000 agencies across the U.S. that have purchased products or services from mobile device forensic tool vendors, including every one of the 50 largest police departments, and at least 25 of the 50 largest sheriffs’ offices.

Law enforcement officials like Wray want to convince us that encryption needs to be bypassed or broken for threats like terrorism or crimes against children, but in fact, Upturn’s public records requests show that police use forensic tools to search phones for everyday low-level crimes. Even when police don’t need to bypass encryption—such as when they convince someone to “consent” to the search of a phone and unlock it—these invasive police phone searches are used “as an all-purpose investigative tool, for an astonishingly broad array of offenses, often without a warrant,” as Upturn put it.

The 44 law enforcement agencies who provided records to Upturn revealed at least 50,000 extractions of cell phones between 2015 and 2019. And there’s no question that this number is a “severe undercount,” counting only 44 agencies, when at least 2,000 agencies have the tools. Many of the largest police departments, including New York, Chicago, Washington D.C., Baltimore, and Boston, either denied Upturn’s record requests or did not respond.

“Law enforcement… use these tools to investigate cases involving graffiti, shoplifting, marijuana possession, prostitution, vandalism, car crashes, parole violations, petty theft, public intoxication, and the full gamut of drug-related offenses,” Upturn reports. In Suffolk County, NY, 20 percent of the phones searched by police were for narcotics cases. Authorities in Santa Clara County, CA, San Bernardino County, CA, and Fort Worth, TX all reported that drug crimes were among the most common reasons for cell phone data extractions. Here are just a few examples of the everyday offenses in which Upturn found police searched phones:

  • In one case, police officers sought to search two phones for evidence of drug sales after a $220 undercover marijuana bust.
  • Police stopped a vehicle for a “left lane violation,” then “due to nervousness and inconsistent stories, a free air sniff was conducted by a … K9 with positive alert to narcotics.” The officers found bags of marijuana in the car, then seized eight phones from the car’s occupants, and sought to extract data from them for “evidence of drug transactions.”
  • Officers looking for a juvenile who allegedly violated terms of his electronic monitoring found him after a “short foot pursuit” in which the youngster threw his phone to the ground. Officers sought to search the phone for evidence of “escape in the second degree.”

And these searches often take place without judicial warrants, despite the U.S. Supreme Court’s clear ruling in Riley v. California that a warrant is required to search a cell phone. That’s because police frequently abuse rules around so-called consent searches. These types of searches are widespread, but they’re hardly consensual. In January, we wrote about how these so-called “consent searches” are extraordinary violations of our privacy.

Forensic searches of cell phones are increasingly common. The Las Vegas police, for instance, examined 260% more cell phones in 2018-2019 compared with 2015-2016.

The searches are often overbroad, as well. It’s not uncommon for data unrelated to the initial suspicions to be copied, kept, and used for other purposes later. For instance, police can deem unrelated data to be “gang related,” and keep it in a “gang database,” which have often vague standards. Being placed in such a database can easily affect peoples’ future employment options. Many police departments don’t have any policies in place about when forensic phone-searching tools can be used.

It’s Time for Oversight On Police Phone Searches

Rather than listening to a litany of requests for special access to personal data from federal agencies like the FBI, Congress should assert oversight over the inappropriate types of access that are already taking place.

The first step is to start keeping track of what’s happening. Congress should require that federal law enforcement agencies create detailed audit logs and screen recordings of digital searches. And we agree with Upturn that agencies nationwide should collect and publish aggregated information about how many phones were searched, and whether those searches involved warrants (with published warrant numbers), or so-called consent searches. Agencies should also disclose what tools were used for data extraction and analysis.

Congress should also consider placing sharp limits on when consent searches can take place at all. In our January blog post, we suggest that such searches be banned entirely in high-coercion settings like traffic stops, and suggest some specific limits that should be set in less-coercive settings.

via Updates

March 8, 2021 at 12:56PM