Never mind the Feds. American police forces routinely “circumvent most security features” in smartphones to extract mountains of personal information, according to a report that details the massive, ubiquitous cracking of devices by cops.
Two years of public records requests by Upturn, a Washington DC non-profit, has revealed that every one of the United States’ largest 50 police departments, as well as half of the largest sheriff’s offices and two-thirds of the largest prosecuting attorney’s offices, regularly use specialist hardware and software to access the contents of suspects’ handhelds. There isn’t a state in the Union that hasn’t got some advanced phone-cracking capabilities.
The report concludes that, far from modern phones being a bastion of privacy and security, there are in fact routinely rifled through for trivial crimes without a warrant in sight. In one case, the cops confiscated and searched the phones of two men who were caught arguing over a $70 debt in a McDonalds.
In another, officers witnessed “suspicious behavior” in a Whole Foods grocery store parking lot and claimed to have smelt “the odor of marijuana” coming from a car. The car was stopped and searched, and the driver’s phone was seized and searched for “further evidence of the nature of the suspected controlled substance exchange.”
A third example given saw police officers shot and kill a man after he “ran from the driver’s side of the vehicle” during a traffic stop. They apparently discovered a small orange prescription pill container next to the victim, and tested the pills, which contained acetaminophen and fentanyl. They also discovered a phone in the empty car, and searched it for evidence related to “counterfeit Oxycodone” and “evidence relating to… motives for fleeing from the police.”
The report gives numerous other examples of phones taken from their owners and searched for evidence, without a warrant – many in cases where the value of the information was negligible such as cases involving graffiti, shoplifting, marijuana possession, prostitution, vandalism, car crashes, parole violations, petty theft, and public intoxication.
Not what you imagined
That is a completely different picture to the one, we imagine, most Americans assumed, particularly given the high legal protections afforded smartphones in recent high-profile court cases.
In 2018, the Supreme Court ruled that the government needs a warrant to access its citizens’ cellphone location data and talked extensively about a citizen’s expectation of privacy limiting “official intrusion” when it comes to smartphones.
In 2014, the court decided a warrant was required to search a mobile phone, and that the “reasonable expectation of privacy” that people have in their “physical movements” should extend to records stored by third parties. But the reality on the grounds is that those grand words mean nothing if the cops decide they want to look through your phone.
The report was based on reports from 44 law enforcement agencies across the US and covered 50,000 extractions of data from cellphones between 2015 and 2019, a figure that Upturn notes “represents a severe undercount” of the actual number of cellphone extractions.
They include banning the use of “consent searches” where the police ask the owner if they can search their phone and then require no further approval to go through a device. “Courts pretend that ‘consent searches’ are voluntary, when they are effectively coerced,” the report argues and notes that most people are probably unaware they by agreeing to it, they can have their phone’s entire contents downloaded and perused at will later on.
It also reckons that the argument that the contents of a phone are in “plain view” because a police officer can see a phone when at the scene of a crime, an important legal distinction that allows the police to search phones, is legally untenable because people carry their phones with them as a rule, and the contents are not themselves also visible – only the device itself.
The report also argues for more extensive audit logs of phone searches so there is a degree of accountability, particularly if evidence turned up is later used in court. And it argues for better and clearer data deletion rules, as well as more reporting requirements around phone searches by law enforcement.
It concludes: “For too long, public debate and discussion regarding these tools has been abstracted to the rarest and most sensational cases in which law enforcement cannot gain access to cellphone data. We hope that this report will help recenter the conversation regarding law enforcement’s use of mobile device forensic tools to the on-the-ground reality of cellphone searches today in the United States.”