DC Police Keep Cell Phones As Evidence

I think this falls into the category of “well, what did you expect?”.

I don’t have a particular stance on this issue;  for me it is just an interesting view into our society and the fact that many people are oblivious to the consequences of their actions.  In addition, there are clear actions these people could have taken to reduce the amount of evidence available.

Police arrested over 200 people during the inauguration of Donald Trump.  Immediately, lawyers for some of the people arrested, which included journalists, medics and attorneys, filed a lawsuit against D.C. and U.S. Park police requesting class action status.  According to the suit, police surrounded groups of demonstrators, at least some of whom, the suit says were not doing anything illegal, and used chemical irritants (meaning, I assume, mace and pepper spray), flash bang grenades and batons against the protesters.  The suit claims that was an over reaction.

The more interesting part is the actions of the police after the fact.  The police issued a subpoena, in this case signed by a police officer and not a judge, requesting Facebook provide the police with Facebook and WhatsApp messages.

Facebook won’t comment on this particular situation, but their law enforcement guidelines says that a subpoena will only get you meta data – name, length of service, credit card information, email address(es) and recent login IP address(es) if available.

Facebook has recently added an encrypted option (off by default) for Facebook messages, but WhatsApp messages have been encrypted from way before Facebook bought the company.  Many other courts have attempted to compel Facebook to disclose the contents of Whatsapp messages, but they have resisted, saying that they do not have the encryption keys.

So what’s a cop to do?  Keep the phone and get at the messages from the other end.

Certainly, the police could, possibly, claim that the phone is evidence and therefore keep it.

For the protesters who lost access to their phone, that means that they likely lost access to their address book, text messages, email and other data.  The police could keep the phones for months.  I guess the protesters could go out and plunk down another $500 to $1,000 and get a brand new shiny iPhone, port their number to that phone and get their data back that way, but that is kind of expensive.

Likely, many of the phones are not encrypted and likely at least some of the phones don’t even have a PIN, never mind a strong password.  Those phones are likely “owned” by the police at this point.

For phones that are protected by fingerprints, the courts have ruled that you don’t have a fifth amendment protection against incrimination and have allowed the police to force you to press your finger to your phone.

So what is the moral of this story?

Well first, if you are going to do something that could potentially get you arrested and convicted, don’t talk/write about it on your phone.

Second, since the police now have that phone, if there is anything on it that is sensitive (like nude selfies, evidence of a crime, attorney client conversations or doctor/patient conversations), that is likely in the hands of the police.

You should strongly consider encrypting your phone if you are concerned about your privacy.  For Android phones, if the phone has an SD card, encrypting the card is a separate action from encrypting the phone.

In this case, some of the people arrested were doctors and lawyers who have professional requirements for patient/client confidentiality.  If those people use their phone as part of their work and do not encrypt their phones and do not use strong passwords (and I specifically mean NOT fingerprints and NO 4 digit PINs and NO passwords like 123456 or their kids names), I have very little sympathy for them.  If their patients/clients sue them for not adequately protecting their information, I would be hard pressed to defend their actions.  For other people who don’t have a professional requirement to protect that data but still want to protect it, the same rules apply.

For protesters, in general, leave your phone at home, encrypted and POWERED OFF.  That way the encryption key is not in memory and since the phone was not at the scene of the potential crime, it is harder to say it is evidence.  It also likely eliminates the need to buy a new iPhone to get access to your data.

People seemed to have a need to take pictures of themselves doing things that have a strong potential to get them in trouble.  You really do NOT need to take pictures of yourself protesting.  The cops and the media will take a sufficient number of those, trust me.

At least for the 200 or so people who were arrested in D.C. and have lost their phones (which seems like an amazingly small number given there were at least a couple hundred thousand people there), there is a lesson to be learned.

For the rest of us, maybe there is also a lesson to be learned – one that can be learned less painfully.

Just food for thought.  Doesn’t seem to me that the police are doing anything wrong.

Information for this post came from Mashable.

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