From the opinion panel: New rules needed for phone-hacking tech

Friday, April 28, 2023

Boulder County recently used some of its opioid settlement money to expand its phone-hacking capabilities for the stated purpose of drug trafficking investigations. What are your thoughts on the tech? Is it a critical tool for fighting drug trafficking, or a worrying expansion of police power? What, if any, restrictions would you like to see placed on the technology?

 

Richard Kiefer: Police hacking of cellphones requires oversight

Boulder County recently spent $81,250 of its opioid settlement money for mobile device forensics tools (MDFT’s) to unlock and scan the content of cellphones. This type of software is useful in solving many types of crimes, and is proving especially helpful in catching local drug dealers.

Police hacking of phones is not new, but what are some of the implications of the electronic investigation of individuals who may have committed a crime? Should there be additional Fourth Amendment protections against “unreasonable searches and seizures” of phones?

It is imperative that police have the ability to gather digital evidence in a digital age. In a large number of crimes, crucial evidence is contained on a cellphone or computer. To search these devices, a warrant from a court is required, just as a warrant is required to search your house. The information on a phone is extensive, and much can be learned about where a person has been, who they have contacted; the phone may include records of financial transactions. This type of information could also be obtained by searching your home and your computer.

In practice, the police often search phones without a warrant by obtaining your consent to search your phone. Police may “ask” to examine your phone to establish that you were not involved in a crime. When confronted by the police, many people comply and hand over their phone.

Legally, consent to examine a phone is given if, according to the Supreme Court, “…a reasonable person would understand that he or she is free to refuse.” At the very least, there should be a Miranda type of warning given at the time of a police request for a “consent search” of a phone. The warning must indicate that if incriminating evidence is found on your phone, it may be used against you.

The scope of evidence which may be gathered and used in a prosecution is limited by the search warrant issued by a court. Once data is collected from a phone, the same sealing and deletion requirements as for any other evidence should apply, and only that evidence pertaining to the case under investigation may be used in a prosecution. All other phone data should be deleted to maintain privacy.

Ultimately, protection from unreasonable searches is the responsibility of the courts who issue search warrants. The appointment of reasonable judges is dependent on electing responsible politicians who value constitutional protections. Our politicians are also responsible for managing police departments. Bad police management by politicians is not an excuse for more rules.

We need proper management oversight of judicial appointments and police departments, which comes from good political leadership.

Richard Kiefer is an electrical design engineer who has lived and worked in Boulder since 1970. More about Richard

Jane Hummer: We need technology to ensure officers don’t abuse technology

To fight crime in the modern world, the police need tools that allow them to recover digital evidence. That is what these “mobile device forensics tools” do: allow law enforcement to get past any passwords or biometric log-ins (such as fingerprint scanners) on a mobile device belonging to a suspect or overdose victim and download metadata and deleted data. Police officers say this is a crucial way to trace the supply of illegal drugs and hopefully prevent future drug overdoses.

Preventing overdoses is a noble goal, and there is no doubt that organized crime related to drug trafficking causes harm to communities well beyond overdoses. However, the power of these digital forensics tools concerns me.

So many details of our lives are contained within the phones, as well as details of the lives of those around us. Our phones can reveal people’s locations, finances, health information, social connections, sexual histories, family scandals and much more.

Any access that the police have to this type of information needs to be carefully controlled and recorded in an automatic and tamper-proof way. Officers are only supposed to use these tools after obtaining a warrant, and the warrant should specify exactly what type of information the officer is looking for and what apps they are authorized to open. Perhaps a digital warrant could be developed that limits which apps the officer is able to open.

Furthermore, the tool should automatically record everything an officer does with the phone: which apps they open, how long they spend in each app, what data they download as evidence, and potentially screenshots of all information that they see. These records would then be automatically uploaded to a secure third-party server as a paper trail in case the officer violated the narrow provisions of the warrant or used any information to blackmail or harass the suspect or anyone else connected to the suspect. Suspects and their attorneys should have access to these records so they know exactly what the police officer saw and did while using their phones.

Am I being paranoid? I don’t think so.

Hacking and other forms of digital abuse are common tactics used by stalkers and domestic abusers. Police officers commit domestic violence at a much higher rate (approximately 2-4X higher) than people in other professions. It is rational to be concerned that giving police officers a tool that allows them to easily hack people’s phones may lead to increased abuse.

Jane lives car-free and navigates Boulder by foot, bus and bike. She is currently enjoying life as a full time stay-at-home dog mom whilst pursuing a career change. More about Jane

Ted Rockwell: Unregulated use of MDFT’s is a dangerous expansion of power

“County officials were unaware of any policies crafted specifically for MDFTs.”

This line from Boulder Beat’s reporting on the use of opioid settlement money for phone-hacking technology tells us everything we need to know to be very concerned about how this technology is being used.

We should believe law enforcement when say MDFT technology is crucial. However, allowing the use of a tool without policy properly designed for the technology in question is a foolish and dangerous infringement on the public’s rights. 

The reality is this technology is widespread and the oversight and policy governing its use is almost nonexistent. A two-year study of the use of MDFTs by the nonprofit group Upturn contains data showing some eye-opening realities about the use of this technology by police departments.

This study found that every one of the 50 largest police departments are using these tools. The use of MDFT technology is pervasive and, while police commonly say they are using it against drug-dealers, the reality is it being being used in all of the most common occurrences police are called to investigate, including traffic crashes, graffiti, shoplifting, vandalism, public intoxication and petty theft.

This essentially means every American is at risk of having their phone forensically searched by law enforcement. Since the policies in place are not detailed enough to provide meaningful guidance for police officials, they end up relying on existing laws and policies to govern the use of data extraction tools. The Boulder County Sheriff Department’s policies on evidence handling demonstrate just how inadequate these existing policies are for governing the use of mobile device forensics. 

These existing policies use language assuming evidence is physical. Thus the guidance for gathering, storage and destruction of digital evidence is non-existent and leaves the door open for mistakes, misuse and abuse.

With the amount of sensitive information stored on smartphones/ these MDFT tools provide a “window into the soul” of the phone’s owner. The lack of meaningful policy and procedure for guiding the use of MDFT’s means the use of this technology is a dangerous expansion in law enforcement’s investigatory power. 

Ted Rockwell is a senior communications and marketing professional specializing in public post-secondary, online and continuing education. More about Ted

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