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Police Can Get More From Your Phone Than You May Believe

by Michael Dean Thompson

Most of us would feel violated to learn that our spouse or partner had been digging through our phone. Imagine if they were to use that access to determine where we have been and who we have been near and then to gain access to our cloud services to examine long forgotten backups, images, and documents. Insatiably, they move on to access our social media accounts and peek into every post we and our friends have made. Most people would shudder in horror at such an intrusive sifting of our lives by people we love and hold most intimate, even if we believed we had nothing to hide.

Emma Well, a policy analyst at the technology research and advocacy organization Upturn asserts, “At no point in human history have we collected and stored so much information about our lives in one place.”

The New York State Police, along with thousands of other law enforcement agencies in the U.S., wants to dig through your digital devices in such a manner. New York’s Gov. Kathy Hochul has announced a $20 million expansion on top of tens of millions already quietly eased into the state’s budget. Five-point-three million dollars of that set aside to modernize investigations by “linking devices to crimes.” Experts assumed that was a reference to a technology toolset known collectively as Mobile Device Forensic Tools (MDFT). One such MDFT comes from the Israeli company Cellebrite, whose product is capable of breaking into phones that many have been led to believe are highly secure.

From a technology perspective, some of the tools available from Cellebrite are impressive. The tools include software and devices with the availability to automatically crack highly secure phones, devices, and SIM cards without the need to send them to Cellebrite for processing. Once cracked, the software can access search and web histories as well as spoof the user’s identity to download social media, email, and cloud services. Information from a cracked phone can be analyzed and cross-referenced with information from other cracked phones. They have artificial intelligence to analyze images for content, including identifying faces, tattoos, drugs, weapons, and more. Other tools can then rifle through the collective data and create new leads without human assistance. Yet another AI aggregates the data and builds court documents.

Like most states, New York’s warrant statute was written long before we collectively digitized our lives and focused their access into small mobile devices. That single point-of-failure creates a significant problem with consent searches when we consider that most people are simply not aware how invasive an MDFT can be during a search.

Well of Upturn describes the use of MDFTs as “an escalator” because it lifts the probe far beyond the original investigation. A Wisconsin suspect in a hit-and-run case told investigators they could search his text messages and signed a general consent. The MDFT the investigators used in the search pulled across – and stored – all of his phone data. That data was later shared with another police department for a separate investigation without a warrant or consent. This is not analogous to cops serving a warrant within a home and happening on evidence of another crime. The use of an MDFT is more akin to investigators being given consent to search a home then using that consent to make unlimited copies of that home’s contents – down to the molecule – and sharing it with any interested parties. It is far beyond the scope of anything possible 50 years ago.  

There is no consistency either when it comes to the various law enforcement agencies, MDFTs, and how the data is acquired and used. Almost half the agencies Upturn studied admitted to having no policies concerning MDFT searches. Upturn used the phrase “remarkably vague” to describe the policies of most of the rest. And the courts are in no position to provide leadership on solutions as they can only address the problems in front them. By the time a given problem can acquire a solution, the technologies have already evolved. Jerome Greco, the supervising attorney at the Legal Aid Society’s digital forensics unit, noted, “Technology moves much faster than anything in law or politics.”

As in the Wisconsin case, neither are there clear delineations regarding with whom the pilfered data can be shared or how it might be used. Emma Well summed it up well, “This is unprecedented law enforcement power.”  




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