Monday, June 3, 2013

Police Can Search Your Cell Phone When They Arrest You

Yes my friends, our fourth amendment rights are being continuously trounced upon time and time again, as we blindly stumble along the fine line of personal privacy versus law enforcement. It almost feels Orwellian...and perhaps he may have only been a half-century premature. The California Supreme court says it’s OK for police to search the cell phones of people they arrest. Cops don’t need to get a search warrant first. This and related cases raise serious law enforcement and data privacy issues. I suppose this adds more fodder for the privacy experts out there that urge us to not only password protect our phones, but to encrypt our data as well to add an extra layer of protection! At leasrt if your data is encrypted, it would likely cause the police or other agency increased effort and time to decode and gain access to the data on your device. 

In legal world, time is money. The more time and manpower the police or prosecution allocates to decoding your cellphone or computer, the less manpower and time they have to allocate or use for their other cases. Granted, it is taxpayer dollars at work, which present another quandary, but I believe that over time the police and/or prosecution will be less likely to spend the aforementioned time and resources on every case. For example, if everyone encrypts their phones and computers, it becomes more difficult for them to retrieve the data to even determine if it is relevant for prosecution, indictment, or even if a case exists altogether. Furthermore, I suspect that law enforcement will eventually grow tired of spending countless hours and resources decrypting photos of "Fluffy" and "Fido" (the family pets) from your cellphone or computer while looking for criminal activity. This correlates directly to the bottom line: literally! If law enforcement (local, state, or federal) spend more time and resources trying to decrypt our cellphones and computers in an attempt to find us "guilty" of something, but instead find nothing but cute photos of fluffy, not only will they grow frustrated and tire of it... they will exhaust their budget doing so. That is why I am asking for some sort of oversight or for people to stand up for their rights. If this continues and remains unchecked by some sort of oversight committee, when the Feds exhaust their budget decrypting our electronic devices and exhaust their budget (thank you Sequestration 2013), I suppose they will simply vote a spending increase in DHS spending; ultimately coming out of the tax payer's coffer. Increased taxes for all... Hooray!

It seems likely that if we standup for our rights and remain vigilant, we can send a clear message that these invasions of privacy shall not tolerated. We should not remain apathetic, and bury our head's in the sand, while we remain indifferent to invasions of our privacy and our personal data by law enforcement under the guise of protection from the 'criminal' element. The Fourth Amendment in The United States Bill of Rights provides and outlines protection from unreasonable search and seizures. Now that the California Supreme Court has set precedence and essentially made it legal for police to confiscate, unlock, decrypt, open up, read your texts, see your contacts, view your calls, and look at all your photos and more; all without needing a judge to sign a search warrant. The police officer simply has to have probable cause to arrest you. One you are under arrest, your cell phone is now fair game. I wonder if that also applies to other electronic devices like laptop, iPad, or Tablet PC? It is even likely in an extreme circumstance that a police officer could do all of the aforementioned things, simply because you jaywalked across the street. State codes vary and most are a misdemeanor, but watch out! Once you are arrested, anything on your person or in your vehicle is fair game. Don't believe me? Just ask any number of New York City residents who are harassed by the city's "Stop & Frisk" program. It permits officers to do just as the title suggests. As long as the officer "reasonably suspects" that the individual has committed, is committing, or is likely going to commit a felony or major-misdemeanor crime. I suppose that simply boils down to racial profiling at its best.

Please, do not misunderstand me. I have the utmost respect for law enforcement officers as they put their lives on the line each and every day and often receive little or no respect for it. I acknowledge that they are simply enforcing the laws set forth by the state and federal legislators. While that is not an excuse for overzealously enforcing or selectively enforcing laws, I believe the officers themselves should speak up if they agree with us. 

What if the situation were reversed and they were not law enforcement or sworn peace officers? I have heard those very same officers (and other friends/family of mine) say that "they had nothing to hide on their phones..." But what about that one photo or text message you thought you deleted? What about certain late-night phone calls or phonebook entry in your 'little black book' that isn't anyone's business but yours? I still argue, though, even if you had done nothing wrong and had nothing to hide in your phone in terms of photos, calls, or texts... you still are leaving digital footprints everywhere you go now. 

This map  depicts data collected from an anonymous iPhone 4 in the UK,
Even with location services and the device's GPS turned off, a cellular or wireless device transmits small packets of data with the device's relative (and sometimes exact) location every few seconds. This was practically unheard of before the discovery in early 2011 that Apple's iPhone 4 had a security leak that documented a phone's longitude and latitude with a corresponding timestamp. It saved this data into a fairly unknown or innocuous file on the phone and then uploaded it when synchronized with Apple iTunes on their computer. Once the security issue was made public, it went viral. A third party developer created a program that would extract the data from the file stored on the iPhone and on the computer that it synchronized with and then plot all the points or "digital breadcrumbs" left behind on the owner' iPhone's journey. The larger the expanse and size of the plots corresponds to the increase of frequency and duration at any given location [shown above]. It was extracted from a relatively short amount of time from an anonymous user's iPhone 4. 

The aforementioned security issue was traced back to iPhone 4 models that performed an OS upgrade in June 2010. Apple made corrections on a later OS update and did attempt to clarify that the data was "aggregated" for "performance" and "functionality" issues for future updates... But does anyone really know what Apple did with all that data? It has been my observation that iPhone users are so loyal to their devices, that they would have them surgically implanted if possible. Suffice it to say, one could deduce that since they rarely parted with their beloved iPhone, Apple had an exact location of that person's whereabouts for every waking and sleeping moment of that individual...assuming the phone was powered on. A person's every movement from when they first powered up their new iPhone 4 until the alleged upgrade that "corrected" the reporting issue. So what exactly did Apple do with all that data that was uniquely identifiable and tied back to that person's Apple ID. Google did something equally as questionable in 2009 with the introduction of Latitude in Google Maps...though they were a bit more public about how one was sharing their location data and with who.

This is for you, Milton.
Alas, I have gone astray with privacy issues. Back to the point: now that we leave digital footprints or breadcrumbs, either knowingly or unknowingly, according to the precedence set by the Supreme Court of California, the police could use that information against you to find you guilty of a crime. Is it really that much of a leap of faith or stretch of the imagination? Hypothetically, what if there were robberies in an office building and the police find a way to arrest you (even for a misdemeanor in some states and circumstances) and they seize your phone and export the data. You could have been near the building or in the building where it occurred, but it doesn't look good for you circumstantially; even if you had never stolen a pen or pencil from the office supplies (I am partial toRed Swingline Staplers shown on the left) closet. Your handy electronic gadget has now made you guilty, circumstantially of course. This is only one of hundreds of examples. Where does it end?

Here are some heartwarming facts that I will leave you with...I warned you!

  • In 2011, Police Agencies requested over 1.3 million cell phone records, according to self-reported data to Congress from US Mobile Phone Carriers.
    • Is anyone else concerned with the company "self-reporting" these numbers to Congress? Are we to believe everything we are told without verification? I mean, Enron told Congress that everything was kosher while their accounting books were so hot they would often spontaneously combust.
    • It is unclear what percentage of those records were provided with or without properly executed warrants.
  • According to an AP report, AT&T created a special team of 100 employees whose only purpose is to process law enforcement requests for cellphone records and data. According to the report, AT&T handled over 250,000 requests last year alone.
  • Sprint handled nearly twice that amount by processing approximately 500,000 data and phone record requests from law enforcement.
  • It appears that US Cellular plans to turn the information and records request from law enforcement into a profitable service. They have established a "self-service" system for law enforcement that charges them $25 to locate a US Cellular phone via GPS for $25, a report of all text messages on a phone for $25, and for $50 law enforcement will be given all activity surrounding a given tower.

Yes, I acknowledge that the laws are still gray and ambiguous from county to county and state to state, but isn't there some sort of judicial oversight (Department of Justice... Congress? Supreme Court? State Legislators?) or perhaps a federal commission that administers telecom law (Federal Communications Commission?) that serve to protect the public? I recall the FCC overstepping their authority with regards to Janet Jackson's "Wardrobe Malfunction" and I also recall the FCC pole-vaulting past their authority when censoring and subjecting Howard Stern to ridiculous  and unimaginable fines... but where are they now? I firmly believe protecting the public's privacy is a far more important legal issue and fundamental right and expectation to protect than ensuring Miss Jackson's nipple is covered and Howard's farts are 'bleeped' off the air... When will it end? Perhaps we will only appreciate the privacy we once had, once we realize it has been systematically taken from us...