Warrantless Cell Phone Searches on the Rise

Tuesday, May 31, 2011

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Back in April, privacy proponents were in an uproar over revelations that the Michigan State Police had been using data extraction devices to collect information from the cell phones of motorists detained for traffic infractions.

The controversial searches are now an issue in several states, and the issue is whether or not mobile devices can be searched without the a court ordered search warrant.

The mobile forensics units, such as those made by the company CelleBrite, have the ability to download the data stored on more than 3000 models of cell phone, and are capable of defeating password protection.

A CelleBrite brochure claims the devices perform "complete extraction of existing, hidden, and deleted phone data, including call history, text messages, contacts, images, and geotags. The Physical Analyzer allows visualization of both existing and deleted locations on Google Earth. In addition, location information from GPS devices and image geotags can be mapped on Google Maps."

The American Civil Liberties Union (ACLU) first learned of the Michigan State Police program back in 2008, and filed official requests for documentation on the standards for using the CelleBrite devices.

The Michigan State Police replied they would be happy to release the information provided the ACLU pays a fee of more than $544,000 for the data, an amount the ACLU finds to be unreasonable.

"Law enforcement officers are known, on occasion, to encourage citizens to cooperate if they have nothing to hide. No less should be expected of law enforcement, and the Michigan State Police should be willing to assuage concerns that these powerful extraction devices are being used illegally by honoring our requests for cooperation and disclosure," ACLU staff attorney Mark P. Fancher wrote.

Following a January decision by the California Supreme Court, is is currently legal for authorities to search the mobile devices of anyone officially "under arrest".a bill under consideration by the California Assembly would reguire law enforcement secure a search warrant prior to the search, and is being supported by the Electronic Frontier Foundation (EFF) and other privacy advocates.

The EFF has also filed an amicus brief in an Oregon case where police searched the contents of a cell phone while the suspect was already in custody, without first obtaining a search warrant, arguing that the search was incidental to the subject's arrest.

According to EFF, "forty minutes after the arrest, without a warrant, an investigator fished through the suspect's cell phone looking for evidence related to his alleged crime. Law enforcement officials claim they didn't need a warrant because the search was 'incident to arrest' -- an exception to the warrant requirement intended to allow officers to perform a search for weapons or to prevent evidence from being destroyed in exigent circumstances."

"This is an empty excuse from the police -- the suspect was in custody and unable to destroy evidence on his cell phone," said EFF's senior staff attorney Marcia Hofmann.

In other recent actions, a Georgia appellate court upheld the search of a cell phone obtained during the search of a suspect's vehicle, and a Florida appellate court ruled that a mobile device is nothing more than a container and thus subject to search at the time of of a suspect's arrest.

The Florida decision may be on its way to the state's Supreme Court were the ruling may be overturned. An Ohio Supreme court decision maintains that warrantless cell phone searches are in fact illegal.

It is likely that one or more of the cases may eventually be offered up to the United States Supreme Court for a final decision.

"The police can ask you to unlock the phone -- which many people will do -- but they almost certainly cannot compel you to unlock your phone without the involvement of a judge," said the ACLU's Catherine Crump.

Source:  http://www.cnn.com/2011/TECH/mobile/05/31/warrantless.phone.searches/index.html

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