The American Civil Liberties Union (ACLU) discovered a court document detailing the data retrieved by law enforcement agents from a suspect’s phone. That data includes call activity, stored voicemails and text messages, photos and videos, eight different passwords, and 659 geolocation points.
All of this was achieved in less than 30 minutes using the Cellebrite UFED Physical Analyzer, which claims the ability to bypass “simple and complex passcode while performing physical and file system extraction on selected devices running iOS 3.0 or higher including iOS 6.”
In this instance ACLU points out that the phone search was conducted with a warrant. It is concerned, however, at how much data can be retrieved when coupled with the growing potential for warrantless phone searches. “Even though ICE obtained a warrant for this cell phone search,” it reports, “courts are divided about whether a warrant is necessary in these circumstances, and no statute requires one.” Furthermore, it adds, there are many incidences when a warrant simply isn’t required – “such as searches incident to arrest and at the U.S. border.”
At the end of January, the DHS published a document (actually the ‘executive summary’ of a secret document) that concludes that warrantless – and indeed suspicion-less – searches of electronic devices is perfectly legal at the border. What it doesn’t do is specify whether the border includes what has become known as the ‘extended border’ (which ACLU has dubbed the ‘constitution-free zone’). This area extends inland for 100 miles from the physical border and would include the residences of two-thirds of the US population.
It is the confusion around whether a warrant is required at all, and whether the border includes the extended border coupled with a lack of statute prohibiting warrantless searches that concerns the ACLU. It comments, for example, that “Last year in California... Governor Jerry Brown vetoed a common-sense bill that would have required the police to obtain a warrant before searching seized phones, despite the bill’s broad bipartisan support in the state legislature.”
It is for these reasons that the ACLU recommends cell phone users to use technology to protect the private data on their phones to “thwart forensic analysis by the police (as well as a phone thief or a prying partner).”