Law Enforcements New Super Snitch: Your Phone

I spend some time with each of my new client’s educating them about their constitutional rights as they relate to criminal law and teaching them how to handle future encounters with law enforcement. The conversation usually starts with me telling the client that about 75-80% of the cases I handle where the client is convicted rely on evidence the government would not have had if the client has simply exercised his or her rights. The rights I am speaking of are primarily those protected under the 4th, 5th and 6th Amendments to the U.S. Constitution and include:

• The right to be free from unreasonable searches of your person, car, home or personal effects;

• The right be free from warrantless seizure of your property;

• The right to remain silent and free from being compelled to make statements which may be incriminating; and

• The right to be represented by an attorney at all stages of the criminal process

I still do not end up with many cases where the client has properly exercised their constitutional rights and avoided providing the state with sufficient evidence to obtain a conviction. However, over the last several years I have faced a new problem that is even more of a challenge and a threat to the protection of citizen’s rights: the client’s cell phone.

By now everyone is well aware that technology companies including Google, Apple, Facebook, SnapChat and other social media companies gather and store and extraordinary amount of data about each of its users. The nature and extent of user data gathered by these companies, much of it without the user’s knowledge or consent, has become an issue of increasing concern since several whistle blowers and other privacy activists obtained and disclosed to the public what Big Tech was really up to. What we soon found out is that for most of these “free” services, the unwitting user was the product.

Most users of these social media sites or other Big Tech “products” were aware that the software was collecting some data about them while they were using the applications. What most users didn’t know was that these applications were gathering user data even when they were not using the application. What also became apparent is that users had no idea just exactly how much data was being collected about them, how it was being used and how to stop or limit the information the user wished to share with the application. In most cases, the applications made determining what information the user was sharing with the application impossible to find out. It was even more difficult to determine how to modify the privacy settings in such a way as to have any real impact on what was collected. And while we probably still do not know exactly what data is being collected, how it is being collected and how it is being used it is quite clear that these companies log, scrape and store enough information about us to know more about out daily activities than we probably know ourselves.

Unfortunately, law enforcement knows this very well and now a citizen’s cell phone is often all that is needed to gather sufficient evidence to convict an individual of a crime. In fact, a suspect’s cell phone is such a valuable treasure trove of information, police now regular ask citizen’s they stop for permission to look at their phones. If the citizen is arrested for whatever reason, the police now routinely seize the arrestees cell phone even though they have no warrant and even though there is no relationship between the phone and the alleged crime of which the individual is suspected of committing.

One the phone is seized, the police will often ask for and receive from the arrestee the passcode to the phone. Of course, this is a big mistake and should never be done. However, even if the accused refuses to provide the passcode for their phone, judges regularly sign search warrants for an individual’s entire phone for pretty much any crime. After all, our phones gather so much data on us that if we were involved in a crime there is a good chance there will be some evidence of it on the phone. While I don’t believe that a general allegation by police that a suspect’s phone might contain some information related to a crime is anywhere near sufficient to warrant the issuance of a search warrant under the U.S. constitution, it happens routinely.

And even in those cases where the police encounter a vigilante judge who insists on following the rule of law, law enforcement has found that they good friends at Big Tech are all too eager to help them out. In fact, most law enforcement agencies have done away with the pesky process of typing up a search warrant and trying to convince a judge that it meets the requirements of the constitution. That takes time, police work and finding a judge who is loose enough with the law to sign what amounts to a general warrant.

Fortunately for the police, companies like FaceBook have made the once time consuming process of conducting a thorough investigation and gathering sufficient evidence to convince a judge that probable cause for a warrant exists a snap. Now instead of fussing with all that due process to gain access to the treasure trove of personal data contained in a citizen’s cell phone, all an officer has to do is submit a simple web form.

The Facebook law enforcement page comes complete with a cool badge icon and assures us customers that: “We disclose account records solely in accordance with our terms of service and applicable law.”

So, if you are a cop all you have to do is complete their webform and convince them there is some sort of emergency. Once you’ve done that, they release all the data they have on a particular using including their last know location and just about anything else you can think of.

There is no hiding from Big Tech and now they’ve teamed up with the police state. If you want to retain any privacy at all you need to delete these apps, disconnect and use other software tools such a VPNs to protect yourself.