We’re all for giving law enforcement the tools necessary to do their jobs quickly and efficiently within the law.
And we’re all for protecting the constitutional rights of citizens, particularly when it comes to protections against unreasonable search and seizures under the Fourth Amendment. That goes for homes and apartments, vehicles and, yes, smartphones, cellphones and tablets that carry a vast array of personal information.
We raise these issues today because the Racine County Sheriff’s Office just got permission to add a new device to its law enforcement arsenal — a Cellebrite, a device developed in Israel, and it’s a jim-dandy.
The Cellebrite, a small portable device, can crack open the records and data on a cellphone or other device in minutes and clone it into the hands of law enforcement. That could include the phone or tablet’s call activity, phone book information, stored voicemails and text messages, photos and videos, passwords, apps and geolocation information that show where the device has been. Yes, it could even be used to find hidden and deleted phone data.
It is a powerful tool, and the Racine County Board this month gave approval to the Sheriff’s Office to purchase one through a grant from the Wisconsin Department of Justice for $11,500.
In pitching the need for the purchase to the board, Sheriff’s Dept. Lt. Cary Madrigal said the device would help the department combat sex offenders and drug dealers by allowing investigators to download devices like cellphones and tablets.
“Years ago, we would have to send it up to the (State) Crime Lab and it would be six to eight weeks before we would get a response back,” Lt. Madrigal said. “Having these now at departments where we can physically download the items on your phone or tablet, obviously with those pieces of evidence we can close a case a lot sooner than later.”
So, yes, this has some definite efficiency advantages for law enforcement.
When asked if police would need a warrant to use the Cellebrite, Madrigal responded: “The majority (of circumstances), yes, you have to get a warrant.” That’s reassuring, because a warrant needs to be signed by a judge after police have demonstrated probable cause that a crime has been committed. Warrants are typically narrowly drawn and specify what can be searched.
But a ring tone of alarm went off when Madrigal began discussing how allowing law enforcement to access a phone could help an innocent person prove their innocence.
“I wouldn’t want to open my phone to anyone here,” Madrigal said. “If someone accuses me of sending them something or taking a picture of something, you wouldn’t need a search warrant. I would be very apt to say ‘take it’ … I look at it like if you are innocent what do you have to hide? Unless there are things on your phone that you don’t want people to see.”
That’s not a standard we’re comfortable with, and it doesn’t square with the Fourth Amendment.
It’s not outside the realm of possibility that, say after someone is involved in a traffic accident, a law officer might tell a motorist a witness or the other driver said he saw the motorist texting before the accident, followed by: “Do you mind if I look at your phone?” In fact, Lt. Madrigal said the Cellebrite would help with texting-while-driving enforcement. Some states have considered creating “implied consent” laws to authorize phone searches after serious automobile accidents.
But the thing about the Cellebrite is that it takes the whole enchilada — all your phone data — and not just the texts you sent in the 30 minutes before your accident. If a motorist consents to the “request” to “look at your phone,” he or she is presumably giving permission to examine data in every nook and cranny — photos, texts, deleted items, geotags, everything, even if that is not what the motorist intended.
“Do you mind if I look at your phone?” coming from a law officer is half request and half command; motorists — even innocent ones who would like to be on their way as soon as possible — know that a denial will result in raised suspicions of guilt; a likelihood of delay, at a minimum; and possible criminal charges at the other end of the spectrum.
That’s a coerced request for voluntary compliance.
We would hope that Sheriff Chris Schmaling lays down guidelines for the use of the Cellebrite that direct officers not to make that coercive request of citizens, and instead direct them to seek a warrant from a judge when they have probable cause that a crime has been committed.
So, too, those guidelines should determine when, and under what conditions, the seized personal phone data is expunged, particularly when there is no arrest or prosecution. Schmaling should make those policies public so county residents know how this device is being used by law officers. We would be glad to give him space on our Opinion page to delineate those policies.
The Cellebrite — with its massive capabilities — can be a good tool for law enforcement, but it also poses a danger for misuse and abuse of constitutional protections that need to be safeguarded.