Privacy Group Files Legal Complaint Over UK Law Enforcement's Warrantless Phone Searches

from the we-did-it-because-no-one-said-not-to dept

Privacy International, which has successfully challenged UK surveillance programs, is bringing its heat to the local level. In a report PI released towards the end of March, the group noted several law enforcement agencies were seizing and searching phones -- often deploying forensic software -- without warrants. This went further than devices owned by criminal suspects. Searches were also performed on phones of crime victims and witnesses.

At no point does it appear warrants were sought. Documents obtained by PI showed UK police forces are operating under a melange of self-written policies or citing random portions of the Police and Criminal Evidence Act (PACE) to support their warrantless searches. It also appears there is no national oversight of this process, which has allowed this current policy patchwork to develop.

This is working out badly for UK citizens, as Privacy International points out.

Data can be taken from victims, witnesses and suspects without informing them. With no clear policies or guidance on the use of this technology, individuals are unaware of their legal rights in terms of:

- Whether data is only taken when necessary and proportionate;

- Getting the police to delete this data when there is no legal reason to retain it, particularly if they are innocent of any crime;

- Ensuring data is held securely to prevent exposure of their personal data as a result of loss of records, misuse or security breach.

Since it appears leaving law enforcement agencies to their own devices (and those owned by others) is only making things worse, Privacy International is pressing the issue.

Campaigners from U.K.-based Privacy International have formally complained about British police being able to download the contents of people’s phones—phones, photos, even fragments of deleted conversations—without a warrant.

While warrants are required to do this in countries such as the U.S., in the U.K. dozens of police forces point to various pieces of legislation to support the idea that they don’t need them. Privacy International says the practice is illegal, however, and has complained to the Information Commissioner’s Office, the British privacy regulator.

PI points to the UK's Data Protection Act, which provides protection for citizens from government harvesting of data and communications. This is being circumvented by common law enforcement practices that neither inform device owners of the extent of the search nor seek informed consent before performing forensic searches. On top of that, data housed in devices may fall under other protections as well. Phones can contain privileged communications with legal representation or information about journalists' sources.

It also notes the updated Data Protection Act, meant to align the UK with the EU's General Data Protection Regulation, will make these efforts even more illegal than they already are. PI is pretty sure law enforcement agencies won't have these policies rewritten before the new law comes into force, which means its complaint will still be on solid legal ground even after the new law is enacted.

This is what happens when law enforcement obtains powerful tech but answers to almost no one. The lack of oversight -- at local or national level -- has allowed law enforcement to perform invasive searches with a minimum of notification or paperwork. Hopefully, this will change soon.

Filed Under: phone searches, privacy, uk, warrants
Companies: privacy international

Court: Unsupported Assertions And Broad Language Aren't Enough To Support Cell Phone Searches

from the this-isn't-a-box-of-papers-in-an-unused-outbuilding dept

Another court has stepped up to inform law enforcement that just because criminals are known to use cell phones doesn't mean any cell phone possessed by a suspect is fair game -- warrant or no warrant.

This time it's the Superior Court of Delaware making the point. In its suppression of evidence found on a seized cell phone, the Superior Court makes it clear that cell phones are used by everyone -- not just criminals. Not only that, but if an officer is going to seek a warrant that effectively allows them access to the owner's entire life, the warrant needs to contain more specifics and limitations than this one did.

During a consensual search of an apartment where a homicide suspect (Qualeel Westcott) was staying, police came across heroin and three mobile phones. All three of the phones were seized. A warrant was obtained to search the content of the phones. But a warrant alone isn't good enough. While a warrant is better than nothing at all, the warrant here -- according to the court -- barely exceeded "nothing at all."

While the court does recognize [PDF] there's a good likelihood that phones possessed by suspects will often contain useful evidence of criminal activity, it takes far more than the bare bones assertions made by the officer obtaining the warrant, which did almost nothing to establish a relationship between the phone and suspected criminal activity. (via FourthAmendment.com)

[H]owever, Detective Sergeant Horsman did not expressly state any nexus between Mr. Westcott's ownership of the mobile phone and the existence of evidence of the crimes (including a confession) on that mobile phone. Although the magistrate may draw reasonable inferences from the factual allegations of the affidavit, the leap required here is a long one. The mere fact that a defendant owns a mobile phone is not, in and of itself, sufficient to warrant an inference that evidence of any crime he or she commits may be found on that mobile phone. The affidavit did not provide probable cause for a search.

The court goes on to point out that even if Sergeant Horsman had managed to do a better job establishing a nexus, the warrant would still fail because of how broadly written it was. State law, along with judicial precedent, have set the bar higher for warrants seeking information stored in citizens' cell phones. As the Supreme Court pointed out in its Riley decision, phones are not simply "containers" that can be rifled through with a minimum of particularity. They are people's "entire lives." With that in mind, the warrant sought in this case is an abject failure.

Here, the search warrant authorizes a search of all "data and cellular logs." This description does not limit the scope of the officer's search of the mobile phones to relevant material and does not place any limitation on the types of "data, media, and files" to be searched.

There is also no temporal limitation on the search. The police alleged that the shooting occurred on May 11 and the presence of heroin at the apartment provided probable cause for its recent distribution. The police should have sought a more limited search warrant permitting the search of suitably recent data from the phones.

Instead, the application sought a general search "of the three phones." The warrant thus provides broad permission to rummage through the entire digital lives of the phones' owners. Accordingly, it does not contain the level of particularity required under the Constitution of the United States, the Delaware Constitution, or Delaware statute.

Yes, it's true that criminals use cell phones. That makes them indistinguishable from a majority of the United States' population. But the wealth of information stored in the average cell phone makes them far different than a filing cabinet or a cardboard box full of personal papers. Courts are doing a (slightly) better job at demanding more from law enforcement officers when they seek to access these contents. The first part of it is to establish something more than "criminals use cell phones" when seeking a warrant. The second part is even more important: limiting the search to just what's needed to uncover evidence related to the criminal act. Particularity is a must. Without it, a cell phone search warrant is nothing more than a boilerplate-backed Law Enforcement Fishing Expedition (Short Form).

Filed Under: 4th amendment, delaware, law enforcement, phone searches, privacy

Court: Border Search Warrant Exception Beats Riley In The 'Constitution-Free Zone'

from the protections-arbitrarily-applied-to-protect-inland-electronic-devices dept

The Supreme Court declared in 2014 that law enforcement could no longer perform searches of cellphones incident to arrest without a warrant. The exceptions to this ruling are making themselves apparent already.

The area of the United States where the Constitution does not apply -- while still being fully within the borders of the US -- apparently exempts law enforcement from following this ruling in regards to cellphone searches. The Southern District of California has come to the conclusion that border searches are not Fourth Amendment searches and that the government has no need to seek a warrant before searching a cellphone.

The court notes the Riley decision says one thing but the "border exception" says another.

Heading in one direction is the Supreme Court’s bright line rule in Riley: law enforcement officers must obtain a warrant to search a cell phone incident to an arrest. Heading on a different course is the border search exception. The border search exception describes an exception to general Fourth Amendment principles. It is the notion that the government may search without a warrant anyone and anything coming across its border to protect its national sovereignty.

Balancing the two competing interests in this case, the court ultimately finds the government's national security interest outweighs citizens' privacy interests. As it weighs this against cases dealing with more elaborate and lengthy device searches at the border, the court basically finds that if the Fourth Amendment is violated by "cursory" searches of devices, it is only violated a little.

Reviewing the totality of the circumstances, the Caballero cell phone search: (1) took place at a port of entry; (2) was based on reasonable suspicion of criminal activity; (3) was conducted manually and appeared to be a cursory search of the device’s contents; (4) did not involve the application of forensic software; (5) did not destroy the cell phone; (6) was performed in minutes, as opposed to hours or days; (7) was performed upon a device being brought into the country, rather than being taken out of the country; and (8) was performed approximately four hours after Caballero was placed under arrest. Other than the last factor, each of these factors was either similar to or less intrusive than the warrantless search Cotterman decided was reasonable.

The "border exception" the court carves out for a warrantless search of cellphones at the border somehow relies on exceptions carved out in the original Riley decision, despite saying Riley doesn't control border searches.

The two cases can be reconciled. The most obvious path for reconciliation is to conclude that the border search exception is among the traditional exceptions to which Riley’s warrant requirement does not apply. This approach finds safe footing in the Supreme Court’s statement that “other” “exceptions” may continue to justify a warrantless search. Riley, 134 S. Ct. at 2494 (“Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.”). It also is consistent with the observation from Montoya de Hernandez, (473 U.S. at 539), about when balancing individual privacy rights against rights of the sovereign, the balance “is qualitatively different . . . than in the interior” and the balance is “struck much more favorably to the Government.” This approach also avoids the spectacle of deeming that Riley undercut 200 years of border search doctrine without even a mention.

Not as much of a "spectacle" as the California court would think, considering the Riley decision set aside years and years of the government relying on dubious analogies like "containers" or "pair of pants" to justify the search and seizure of anything carried on or near a person (like in their vehicle) incident to arrest. It may not date back 200 years, but it does date back to the Fourth Amendment itself, which is a controlling authority with more than 200 years worth of history.

The case here deals with an actual border crossing (Calexico, California) but the government has basically declared any area within 100 miles of a border can be called "the border" for the sake of searches and detainments predicated on reasonable suspicion or, in many cases, law enforcement hunches.

As for this case, it's hardly the ideal test for balancing Riley against the border search exception. For one, the defendant challenging the warrantless cellphone search was already neck-deep in reasonable suspicion, thanks to the discovery of drugs in his vehicle. Officers on scene had more than enough reason to detain him and likely had uncovered enough damning evidence to support a warrant affidavit. Of course, they did not seek one. Instead, they briefly browsed his phone until they found further suspicious content.

Some courts refuse to give officers a pass when they could have gotten a warrant but choose not to. Those courts are in the minority. This court is part of the majority.

Here, illicit narcotics had been discovered. Caballero had been arrested. Reasonable suspicion had jelled into probable cause. For the time being, he and his cell phone were safely in the hands of government agents. Other than the increased administrative work required, there is no apparent reason why Riley’s search warrant requirement could not be applied without undercutting the interests supporting the border search doctrine. One can certainly say that Riley casts doubt on Cotterman’s approval of warrantless searches where an arrest is made. Nevertheless, as long as this Court can apply circuit precedent without running afoul of intervening authority, it must do so.

Being within 100 miles of the border means never having to seek a warrant, even if the government has both the time and the probable cause to do so… at least until someone manages to push a challenge up to the appeals court level or beyond.

Filed Under: 4th amendment, border searches, constitution free zones, phone searches, privacy, riley, supreme court, warrant

CA Legislators Pass Warrant Requirement For Phone Searches, Gut Transparency Stipulations To Appease Law Enforcement

from the for-some-reason,-a-law-is-needed-to-force-4th-Amendment-compliance dept

The California Senate has passed a bill that creates a warrant requirement for searches of cellphones, tablets and electronic devices. This would be slightly different than the recent Supreme Court decision, which only creates a warrant requirement for searches incident to arrest. In terms of this legislation, the proposed law would forbid warrantless access to personal electronic devices (whether or not "incident to arrest"), as well as data stored at third-parties but accessible through these devices. (via Boing Boing)

The state Senate on Wednesday approved a bill that would require law enforcement in California to obtain a search warrant or wiretap order before searching a person’s smartphone, laptop or other electronic device or accessing information stored on remote servers.

The bill, by Sen. Mark Leno (D-San Francisco), also would protect locational information stored on smartphones and other devices unless police officers show probable cause to a judge.

Good news for California residents, most of whom routinely abduct and abuse children -- at least according to those opposed to the legislation.

The bill is opposed by the California District Attorneys Assn., the California Police Chiefs Assn. and the California State Sheriffs Assn. as unnecessary and a burden to investigations.

By proposing new procedures, the bill “undermines critical efforts to stop child exploitation, mandates the destruction of evidence by law enforcement, and violates the California Constitution,” the prosecutors’ group said in a letter to lawmakers.

This "argument" has become so threadbare, it's hardly worth addressing. The addition of a warrant requirement doesn't make law enforcement efforts any less effective. All it does is require them to conform to the Fourth Amendment. The legislation -- like every other similar law -- contains exigent circumstances exceptions, so Amber Alerts, etc. will still allow officers to access data without warrants and still have a chance at saving All The Children™.

What's more depressing about the bill (other than the usual Appeal To Pedophilic Behavior fallacy) is the transparency language that's been stripped from it to appease law enforcement agencies, prosecutors and the state's governor.

There will be no forthcoming "transparency reports" from the state's DOJ detailing law enforcement demands for data and communications. The following stipulation has been removed from the bill:

The bill would also require a government entity that obtains electronic information pursuant to these provisions to make an annual report to the Attorney General, and would require the Department of Justice to annually publish a summary of the report on its Internet Web site. By requiring local law enforcement entities to make those annual reports, this bill would impose a state-mandated local program.

Another section routes around citizens whose data and communications are obtained by law enforcement, delaying notice from 72 hours to 90 days -- and only if the affected person happens to stumble across the presumably-heavily redacted report posted at the state DOJ website. (And then somehow manages to figure out that the posted info is about them despite all personal information being presumably withheld...)

If there is no identified target of a warrant, wiretap order, or emergency request or access at the time of its issuance, the government entity shall take reasonable steps to provide the notice, within three days of the execution of the warrant, wiretap order, or emergency request or access, to all individuals about whom information was disclosed or obtained. submit to the Department of Justice within 72 hours a report that states with reasonable specificity the nature of the government investigation under which the information was sought and includes a copy of the warrant, or order, or a written statement setting forth facts giving rise to the emergency. The Department of Justice shall publish each report received pursuant to this subdivision on its Internet Web site within 90 days of receiving the report.

Finally, the bill has also had a mandated annual report to the state's Attorney General removed from it, limiting reporting to only the periodic dispersal of information by the DOJ. So, it's basically no transparency and there's no hint that this new requirement will result in any additional oversight of questionable searches.

Given these removals, it must be sheer "principle" that compelled the Sheriffs' Association to make this statement:

The sheriffs' group added that “it conflates existing procedures for obtaining certain electronic information under state and federal law, contains burdensome and unnecessary reporting requirements, and will undermine investigations that are fully compliant with the 4th Amendment.”

These deletions may convince the governor to pass the bill, after rejecting last year's version in part for reporting requirements (mainly the notification of those affected by demands for content and data) that would supposedly "harm criminal investigations." What's good about the bill is that it extends Fourth Amendment protections to areas not normally considered covered by it, like cell site location info. Both the governor and law enforcement seem opposed to expansions of citizens' rights, so even in its stripped-down state, it may see another veto.

Filed Under: california, phone searches, phones, transparency, warrants