Cell Phone Data And California Law: What You Don’t Know

Marcellus Campos and Denise Tejada on Tuesday, May. 3rd

There was a buzz last month after the American Civil Liberties Union pressed to find out if Michigan police are using a device to download cell phone data during routine traffic stops, violating 4th Amendment rights against unlawful search and siezure. It sparked another round of tech privacy conversations, including an interview on NPR with Brian Cooley, editor-at-large at CNET who described the device police in Michigan are using for data dumps — called the Cellebrite UFED.

Demand for these devices may have reason to grow in California. While the spotlight is on Michigan, police officers here have been cleared to do the same kind of controversial cell phone searches, thanks to a little known California Supreme Court case ruling, People v. Diaz.

Here’s the background.

In 2007, Gregory Diaz was pulled over and arrested by police after the passenger in his car sold ecstasy to an undercover police officer. His cell phone was later searched by police without a warrant and using that data, Diaz was charged with selling a controlled substance. Diaz pleaded not guilty and challenged the use of his cell phone data as evidence. But the court ruled against him, and that the warrantless search was valid.

Whether Diaz was part of the drug deal or not, the case raises larger privacy questions. The upshot? Anything that is found on or around you can be used as evidence against you. Now, warrant or not, California police have the right to hook up your cell phone to a device and poof! there is all your content.

According to Michael Risher of the Northern California ACLU, it’s possible that even a minor incident with the police could make you a victim of a privacy violation.

“The police now have free reign to search, go into, examine all the data on cell phones or other personal computing devices of anyone they arrest for any reason, no matter how minor,” Risher says.  “This can include very personal information. Emails with family, friends, associates… Medical, financial information… everything is now fair game for the police.”

In Oakland, the police have had the technology for a while to look at someone’s cell phone data to build cases, but Holly Joshi of the Oakland Police Department says it’s not used for petty crimes such as jaywalking and speeding. She says the California ruling hasn’t sparked a change in their approach — it mainly saves the department time.

“It not a new technique. Officers have been doing this, but they have been writing warrants in order to do it. So it definitely takes one less administrative step to continue our investigation, which is important in some investigations when time is very important, you need to get the information quickly.”

But getting information quickly can be a slippery slope says Riser of the ACLU. As technology gets cheaper and easier to use, the more problematic it becomes in police departments such as Oakland.

“So sure, right now they are only using it – apparently — in cases where they think it is warranted. That certainly doesn’t mean that five years down the road if the Diaz opinion is allowed to be the controlling law, that you won’t see a much broader use of this.”

Broader use is likely to affect some populations more than others, say Riser.

“Of course, the people who are going to be affected by this type of unlimited authority to search are the same people who are affected by police misconduct, by racial profiling. It’s not the wealthy person in the fancy SUV who can’t provide the driver’s license b/c she left it at home. It’s the people who police already think are up to no good. It’s the same people who face discrimination, harassment because of their ethnicity, their age.”

ACLU’s answer to this is to add cell phone privacy to their Know Your Rights trainings and spreading the word now. Telling people to put password protections on their phones. It’s one more deterrent for police, forcing them to have a strong reason to search your data. (Note: Oakland PD, and probably many other departments, do have a tool to crack passwords, so it’s not a huge deterrent.)

As more states incorporate technology in their police forces, courts across the country can’t agree on where to draw the line on data privacy, and whether cell phone data is fair game or not before people are charged with a crime.

Ultimately, it may be up to the U.S. Supreme Court to decide whether this is a huge infringement on privacy rights or the next generation of law enforcement.

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