South Florida
by charles rabin
ORDER REPRINT→Criminals, like the rest of us, use their mobile phones a lot, devices that have become a primary target for the police. But getting access to information stored on phones isn't as easy as asking Siri to find it.
There are technical hurdles, as well as legal and civil rights questions, before police can begin to investigate the information stored on suspects' phones.
Faced with these challenges, law enforcement agencies across the country have turned to what some critics have called spyware: a device with special software that connects to phones and can extract and store contacts, photos, GPS coordinates, and the most visited social media platforms by the user, information that has the potential to contribute significantly to criminal cases.
The Miami Police Department, which purchased the software a little over a year ago, is the latest police department in South Florida to join the long list of authorities using it. The Miami-Dade Police Department, the largest in the southeastern United States, has used this type of device for more than a decade, and has updated the software several times, the last time in August 2017.
Law enforcement agencies stress that there are strict laws that limit how they can use the device. It is not simply about extracting information from a suspect's phone via Bluetooth or Wi-Fi, for example. They must first have the phone in their possession, and the police insist that they do not use the system without the owner's authorization or a search warrant.
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Once a phone is confiscated, it is placed in a location that blocks communication, so the information on the device cannot be updated, altered, or erased.
There are also technical obstacles: authorities do not have access to information on all mobile phones, and technological advances in phone security systems make it difficult to access. Newer versions of the iPhone, for example, lock information out of the hands of authorities without a password.
“They constantly update [the technology] to try to get around the key,” said Eldys Diaz, executive assistant to the Miami police chief. "In some cases you can't access all the information without the key."
Defense attorneys and civil rights groups are also fighting spyware, claiming the system is an invasion of privacy protections built on the strict limits of a search warrant. For example, if the police are looking for evidence of a crime and find information that supports another charge, should they be allowed to use it?
A case pending last summer in a Miami-Dade court shows some of the obstacles authorities face in gaining access to information stored on mobile phones.
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#YourLocalNewsIn a case closely watched by lawyers, a Miami-Dade judge decided not to hold reality TV star Hencha Voigt in contempt of court for failing to hand over the key to her iPhone. Voigt and a man named Wesley Victor were accused of extorting $18,000 from a social media personality in exchange for not posting sex videos stolen from YesJulz, a well-known social personality.
Authorities seized Voigt's phone when she was arrested a year earlier. Twice before the judge ruled on her, Voigt said she didn't remember the password. Civil rights advocates supported the judge's decision, arguing that handing over the key would have violated Voigt's Fifth Amendment rights not to incriminate herself.
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A month after the judge's ruling, the FBI somehow gained access to the information on Voigt's phone. Text messages exchanged between the sports model and Victor, in which the sexual videos were discussed, seemed to support the authorities' case.
Lieutenant Juan Villalba Jr., of the Miami-Dade Police, who has had the necessary equipment for more than a decade, acquired from the digital intelligence company Cellebrite, said that using spyware is not very different from an agent of the Internal Revenue Service shows up at a company with a court order to demand the release of financial information.
"We are going to use new technologies to fight crime," said the lieutenant. "These days everyone walks around with a smartphone in their pocket."
However, civil rights groups, such as the American Civil Liberties Union (ACLU), are concerned that investigators who do not honor specific searches on personal devices may extract information that has nothing to do with a specific case.
“It's important that the search warrant specifically describe what the police are looking for,” said Nate Wessler, an attorney with the ACLU, who is currently pleading a case involving a cell phone in the US Supreme Court. "Most of the time, personal photos are irrelevant."
Wessler said there are a handful of judges across the country who have begun to include limitations on search warrants. A good practice, he said, is for an expert other than the police investigator to search for and extract from the phone the specific information included in the search warrant.
Diaz, executive assistant to the Miami Police Chief, said getting a search warrant for a cell phone is similar to getting a search warrant for a home: Police have to show that the phone is part of a crime or that there is probable evidence related to a crime on the device.
"That would depend on the facts of the case and its relationship to a crime," he said. Diaz added that all search warrants in Miami are reviewed by the Miami-Dade State Attorney's Office before they are presented to a judge.
Information mining devices have become so popular that research last year by CityLab, the digital arm of The Atlantic magazine, found that the vast majority of America's 50 largest police departments use them. CityLab began the investigation after The Intercept website published a catalog of military tools used by US law enforcement entities, which was leaked to it by an intelligence source concerned about the militarization of US police forces.
Mobile phones have forced police and courts to constantly change tactics to keep up with today's criminals, all amid the limitations of evolving surveillance laws.
There are no longer many traditional telephone lines and cheap mobile phones, used a few times and thrown away, have become common. In the past, courts have reprimanded police for using a tracking device called the Stingray, a cell tower simulator that sends signals to phones in a given area to broadcast their location, all without a warrant.
In September 2017, a Washington appeals court ruled that police have to apply for a search warrant to use the Stingray. This was the fourth similar ruling by a state appeals court or federal district court on the controversial technology.
Wessler, the ACLU's attorney, argued in November in a U.S. Supreme Court case that raised the issue of whether the Fourth Amendment, which protects people from unreasonable searches and seizures, is violated when law enforcement authorities they get cell phone location records without a court order.
The case involved four armed men who robbed Radio Shack and T-Mobile stores in Detroit between 2010 and 2011. The suspects were arrested, and one turned his cell phone over to police, who used information stored on the device to determine that Timothy Carpenter—who was not one of the four originally arrested—participated in the crime. Carpenter was subsequently arrested.
Carpenter then filed a lawsuit in which he alleged that authorities have to apply for a search warrant to access the information that led to his arrest. When a judge ruled that the FBI did not need a search warrant to learn where and when the suspect's mobile phone was used, the case went to the US Supreme Court, which is expected to rule on the case this summer.
Since 9/11, local law enforcement agencies have received a large amount of funding that has been used to strengthen the fight against crime and terrorism.
It's already common to see what were once strictly military-grade vehicles, such as the eight-ton, tank-like Bearcat with sniper turrets, during cases where suspects barricade themselves or when dangerous arrests are made. Police also use bus-like mobile command centers that have closed-circuit cameras. And the police often also have gas detectors, thermal and night sights.
With federal donations this year reaching nearly $5 million, the Miami Police Department is making purchases that include four huge cameras with a 360-degree field of view and high-definition images. Authorities used similar cameras during Art Basel in December and say they use them for big events like the Coconut Grove Festival of the Arts.
“They are a vital part of our operations,” Diaz said. "Some of those things are expensive and we wouldn't have the budget to buy them."
For less intimidating tools, like the phone data extraction device, Diaz says Miami Police take every precaution to ensure laws are followed and privacy protections are not violated.
“We have to follow legal procedures,” he said. "We have to request a court order because they are devices that store private information."
This story was originally published on February 12, 2018 at 1:25 pm.