Warrantless search and seizure!
You are driving a little too fast on a Michigan highway when suddenly you see police lights flashing in your rearview mirror. It is a routine traffic stop except this time the officer asks for something in addition to your license and proof of insurance. He asks for your cell phone. Not being one to cause trouble you hand it over. He hooks it up to a mobile computer that downloads all of the data on your phone without your knowledge or consent. Believe it or not that is what is going on in Michigan and it is causing a stir with privacy advocates. From CNet:
The Michigan State Police have started using handheld machines called “extraction devices” to download personal information from motorists they pull over, even if they’re not suspected of any crime. Naturally, the ACLU has a problem with this.
The devices, sold by a company called Cellebrite, can download text messages, photos, video, and even GPS data from most brands of cell phones. The handheld machines have various interfaces to work with different models and can even bypass security passwords and access some information.
The American Civil Liberties Union of Michigan urged the Michigan State Police (MSP) today to release information regarding the use of portable devices which can be used to secretly extract personal information from cell phones during routine stops.
For nearly three years, the ACLU has repeatedly asked for this information through dozens of Freedom of Information Act requests, but to date it has not been provided.
“Transparency and government accountability are the bedrocks of our democracy,” said Mark P. Fancher, ACLU of Michigan Racial Justice Project staff attorney. “Through these many requests for information we have tried to establish whether these devices are being used legally. It’s telling that Michigan State Police would rather play this stalling game than respect the public’s right to know.”
Several years ago, MSP acquired portable devices that have the potential to quickly download data from cell phones without the owner of the cellphone knowing.
The ACLU of Michigan expressed concern about the possible constitutional implications of using these devices to conduct suspicionless searches without consent or a search warrant.
In August 2008, the ACLU of Michigan filed its first FOIA request to acquire records, reports and logs of actual use.
Documents provided in response confirmed the existence of these devices, but MSP claimed that the cost of retrieving and assembling the documents that disclose how five of the devices are being used is $544,680. The ACLU was then asked to pay a $272,340 deposit before the organization could receive a single document.
In order to reduce the cost, the ACLU of Michigan narrowed the scope of its request. However, each time the ACLU submitted more narrow requests, MSP claimed that no documents exist for that time period and then it refused to reveal when the devices were used so a proper request could be made.
“We should not have to go on expensive fishing expeditions in order to discover whether police are violating the rights of residents they have resolved to protect and serve,” said Fancher.
According to CelleBrite, the manufacturer of at least some of the devices acquired by MSP, the product can extract a wide variety of data from cellphones including contacts, text messages, deleted text messages, call history, pictures, audio and video recordings, phone details including the phone number and complete memory file dumps on some handsets.
In its three-page letter, the ACLU of Michigan explained that the use of such devices may violate Fourth Amendment protections against unreasonable searches if a warrant is not issued. In addition, the organization would like to determine if MSP is disproportionally downloading the personal information of people of color.
Recently, the national ACLU took on a similar issue challenging a federal policy of searching, copying and detaining travelers’ laptops, cell phones and other electronic devices at airports and the border without suspicion of wrongdoing.
Today’s letter was signed by Fancher and Michael J. Steinberg, ACLU of Michigan legal director.