After pushing for a universal “kill switch” in cellphones to cut down on theft, American law enforcement are now using the technology as an excuse to search phones belonging to suspects without a warrant.
Law enforcement originally advocated for the tech as a way of reducing the incentive for the escalating problem of smartphone theft by rendering stolen devices useless, and was manifested in a U.S. Senate bill earlier this year. According to police the kill switch concept, which remotely locks a device and wipes all of its data, represents a threat to investigations by giving suspects an opportunity to completely wipe away their digital history.
“You have this weird scenario where law enforcement has demanded remote wiping be deployed,” ACLU principal technologist Chris Soghoian said in a Wired report. “And now they’re using that to also justify warrantless searches.”
The U.S. Department of Justice filed a brief with the Supreme Court earlier this week in a related case arguing that police should be able to immediately search a suspect’s cellphone at the time of arrest in order to secure any incriminating evidence, and should not have to wait for a warrant. Not doing so could potentially give suspects time to erase such data after the implementation of kill switches before police could get a warrant from a judge.
Statements from the Center for Democracy and Technology and the Electronic Frontier Foundation previously filed to the court asserted the opposite, and said warrantless searches of cellphones would be a tremendous violation of suspects’ right to privacy. Warrantless searches are already allowed for items like backpacks, pockets and cars in some instances, and adding cellphones to the list goes to far, the groups argued.
“This Court should not deprive officers of an investigative tool that is increasingly important for preserving evidence of serious crimes based on purely imaginary fears that police officers will invoke their authority to review drug dealers’ ‘reading history,’ … ‘appointments with marital counselors,’ or armed robbers’ ‘apps to help smokers quit,’” DOJ attorney Donald Verrilli Jr. said while responding to specific examples given by the privacy groups.
Verrilli also said that “searching an arrestee’s cell phone immediately upon arrest is often critical to protecting evidence against concealment in a locked or encrypted phone or remote destruction.”
“For example, in one California case,the members of a narcotics-trafficking organization ‘admitted that they had a security procedure, complete with an IT department, to immediately and remotely wipe all digital evidence from their cellphones,’” the brief reads. “And because remote-wiping capability is widely and freely available to all users of every major mobile communications platform, individuals have used the same tactic. That problem will only increase as mobile technology improves and criminals become more sophisticated.”
Electronic Frontier Foundation Hanni Fakhoury said warrantless searching isn’t necessary, and that police could easily confiscate suspects’ phones, remove the batteries and place them in a signal-blocking cage until obtaining a warrant.
“The government can point to no actual statistics that show this is a widespread problem,” Fakhoury said. “And the reality is that most people don’t even have remote wiping technology on their phone.”
According to the DOJ, suspects have no “reasonable expectation of privacy” because they already share their information with phone companies — therefore their data isn’t private anyway, and not covered by the Fourth Amendment.
The ACLU’s Soghoian said that argument is flawed, because in the instance described by police, the data in question is being held and examined on a suspect’s personal device — otherwise police wouldn’t need to search it at all, and could ascertain a warrant for data from service providers themselves.
Beyond that argument, the legal justification cited by DOJ is deeply flawed for several reasons, chief among them being that police have no right or reasonable expectation to any personal data simply because it passes through a private third party. Such passage does not re-define it as public data (otherwise warrantless wiretapping of telephone lines would have always been justifiable), and the Fourth Amendment itself outlines privacy protection from government specifically, not private companies.
“What matters isn’t just the information, but where they get it from,” says Soghoian. “They’re saying that there are certain things on your phone that have less protections than others under the law, which is crazy.”