Michigan State Police Deny Warrantless Data Scans of Motorists' Phones

In response to a letter publicized by the ACLU asking about police data collection activities, the Michigan State Police said it uses data extraction devices only in particular criminal investigations.

The Michigan State Police use portable machines called data extraction devices that can download personal information from mobile devices. The state's branch of the American Civil Liberties Union wants to know how the police department is using the five such devices it owns.

These portable devices can be used to "secretly extract personal information from cell phones during routine stops," ACLU staff lawyer Mark Fancher wrote to Col. Kriste Etue, director of the Michigan State Police, on April 13. The devices, sold by Cellebrite, can reportedly bypass security passwords and download text messages, photos, video and GPS data from most brands of cell phones. The Cellebrite UFED ('Universal Forensic Extraction Device) may also be capable of obtaining erased text messages.

On April 20, the Michigan State Police issued a statement denying it uses the handheld devices to download personal information from motorists they pull over. The devices are used only after a search warrant has been obtained or if a mobile phone owner provides consent. Moreover, it would be impossible for the data to be collected secretly, as the DEDs require the police officer to physically possess the owner's mobile device to download the data, the department said.

"The DEDs are not being used to extract citizens' personal information during routine traffic stops," the police department said in the statement. The devices are used only by "specialty teams on criminal cases, such as crimes against children," according to the department.

Accessing a citizen's private phone information without probable cause could violate the Constitution's Fourth Amendment, which forbids unreasonable search and seizure, according to the ACLU. The group asked the MSP to explain how the devices are used, when they are used and if they have been used without the permission of those who own phones or computers that were scanned.

"A device that allows immediate, surreptitious intrusion into private data creates enormous risks that troopers will ignore these requirements to the detriment of the constitutional rights of persons whose cell phones are searched," wrote Fancher.

Cellebrite advertises that its products can be used to "insure that a suspect's phone can be examined before the individual has a chance to destroy or erase data." The devices are also used by major wireless carriers including Verizon, Sprint and AT&T to transfer data from old phones to new phones when users upgrade.

While the technology should not be used without the phone owners' consent or with search warrants, it's likely that if the phones are confiscated in the commission of crimes, they're fair game for law enforcement. The courts are currently giving police the leeway to look at cell phones to collect information, much in the same way they can examine what a suspect has in his pockets or in a bag at the time of his arrest, Andrew B. Serwin, a partner and founding chair of the privacy, security and information management practice at Foley & Lardner, told eWEEK. A recent appellate decision in California upheld the government's authority to use text messages found on a suspect's cell phone as evidence against him or her, Serwin said.

The national ACLU has asked similar questions about the United States Department of Homeland Security's use of devices to gather information from travelers' computers and cell phones.

Travelers don't have the same expectation of privacy with their computers and phones at the border, Serwin said. The courts have generally supported fairly broad powers when it comes to searching laptops as part of border control.

"The implication by the ACLU that the [state police] uses these devices 'quietly to bypass Fourth Amendment protections against unreasonable searches' is untrue, and this divisive tactic unjustly harms police and community relations," the state police said.

The ACLU said it has been trying to get more information about these devices for three years and has filed over 70 separate requests under the Freedom of Information Act. The MSP said it was willing to comply with the FOIA request, but the ACLU would have to pay a processing fee. The ACLU has balked at paying more than $544,000 to get the information it's looking for.

"We only wanted assurances that these devices were being used lawfully," Fancher told Reuters.