April 20, 2011 at 4:09 PM ET
The "Universal Forensic Extraction Device" sounds like the perfect cell phone snooping gadget.
Its maker, Israel-based Cellbrite, says it can copy all the content in a cell phone -- including contacts, text messages, call history, and pictures -- within a few minutes. Even deleted texts and other data can be restored by UFED 2.0, the latest version of the product, it says.
And it really is a universal tool. The firm says UFED works with 3,000 cell phone models, representing 95 percent of the handset market. Coming soon, the firm says on its website: "Additional major breakthroughs, including comprehensive iPhone physical solution; Android physical support – allowing bypassing of user lock code, (Windows Phone) support, and much more." For good measure, UFEC can extract information from GPS units in most cars.
The gadget isn't a stalker's dream; it's an evidence-gathering tool for law enforcement. Cellbrite claims it’s already in use in 60 countries.
That apparently includes the U.S. The American Civil Liberties Union in Michigan says it has learned that state police there have purchased some of the gadgets. What is it doing with them? So far, Michigan authorities aren't telling. A public records request for information by the ACLU was met with a prohibitive $500,000 bill to cover the supposed cost of making the documents available.
"They did produce documents which confirmed that they have them," said Mark Fancher, a staff attorney at the ACLU office. "We have no idea what they are doing with them."
Technology and the Fourth Amendment have had a rocky relationship. When The Founding Fathers created protections against unlimited search and seizure, they never imagined the kind of tools that would be available to 21st century police officers.
Cell phone data is an indispensible tool in both investigations and prosecutions. A drug dealer's contact list is an obvious treasure trove. Location information stored in the phone can prove (or disprove) an alibi. Texts are at least as valuable as emails. Increasingly, smartphone s are used as mini-laptops, placing even more ready-made evidence in one small package -- as long as law enforcement can get to it before it's destroyed.
Because handsets are nearly always with suspects, it's easy for a would-be criminal to delete information during a traffic stop. Remote wiping programs exist that mean critical evidence could be destroyed even after a police officer takes possession of a suspect's phone. That means law enforcement official s have great interest in slurping up all the secrets that a handset might contain as quickly as possible. Enter Cellbrite.
But how fast is too fast? Fancher and the ACLU argue that most cell phone searches are an invasion of privacy that requires law enforcement officials to get a court order before rummaging through a suspect's handset data. While UFED could be used after an order is obtained, its obvious focus is on time-critical searches -- those that would occur, for example, right after a "routine traffic stop."
"The Fourth Amendment protects citizens and allows them to have some confidence that law enforcement can't go in on a whim and take a look at most private details of our lives," said Fancher. "Our concern is that the device can empty a cell phone within 90 seconds, offering law enforcement a powerful ability to intrude on and infringe on people’s rights."
Do cops need a court order to search the contents of a cell phone? The law is still evolving, but at least one recent major decision chose police over privacy. The California Supreme Court recently issued a ruling that allowed police to use text message evidence they'd obtained without a court order. The ruling seemed to open the door to widespread use of warrantless cell phone searches in California.
But Fancher cautioned against generalizing too much from a single search-and-seizure case.
"They often involve a lot of nuance," he said. "You really have to go case-by-case when searches are involved."
There are clear-cut cases where court orders wouldn't be required to search cell phones -- if police are in hot pursuit of a crime or have probable cause to believe that evidence is in immediate danger of being destroyed. Such situations are exceptions, however, Fancher said. He's concerned that the easy-to-use gadgets in the hands of field officers would make cell phone searches the rule, rather the exception.
Cellbrite didn't immediately respond to a request for comment. On its website, the firm says it was founded in 1999 and was purchased by a Japanese company in 2007. Its data-slurping technology grew out of products it sells that are used to transfer contact information from old phones to a new phones at cell phone retailers.
The Michigan State Police did not respond to a request for comment.
Technology continues to throw major legal headaches at law enforcement officials and Fourth Amendment rights advocates.
The U.S. Supreme Court is currently mulling a related issue involving the use of persistent GPS monitoring of suspects without a warrant. In that case, the FBI placed a GPS monitoring device on a suspect's car without a warrant and then tracked his driving for driving weeks. The Department of Justice says the technique is akin to surveillance on public roads, but a federal appeals court ruled that such aggregation of movements over time constituted a Fourth Amendment violation. Because the ruling conflicts with other appeals court rulings in similar cases, the Department of Justice recently asked the Supreme Court to take the case and settle the matter.
Fancher said his quest for information about the cell phone data copying device from the Michigan State Police began in 2008. After receiving a $500,000 bill for records requests, along with a demand for a $250,000 down payment, the ACLU tried to narrow its requests to reach a more reasonable cost. It filed 70 FOIA requests last November, for example. But the method also proved fruitless.
"We have tried everything we know of to work with FOIA personnel to get the documents we seek and had no success, so we've taken the opportunity to go to the top and try to shake things loose," Fancher said. On April 13, the ACLU sent a letter to State Police Director Kriste Etue, and made that letter public to the media.
"The ACLU should not have to go on a fishing expedition in order to discover whether the state police are violating the privacy of individuals through the use of new, sophisticated technology," the letter read.
The ACLUs real concern with the gadgets is that they will prove too tempting for state troopers, and abuses will occur.
"We're not accusing the state police of using them improperly. It's not illegal or improper for them to have them," he said. "Our concern is, what are they doing to insure they are complying with constitutional requirements? ... We'd be interested, for example, in what kinds of supervision there is over their use."
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