ACLU concerned over Michigan State Police extracting data from cellphones
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Michigan State Police officers, equipped with forensic cellphone analyzers, have extracted data from cellphones during their police work, and the American Civil Liberties Union wants to know more about it.
The ACLU has raised concerns over the legality of the cellphone scanners (which can scan both regular cellphones and smartphones) and whether the 4th Amendment, which prohibits unreasonable searches and seizures, is being violated by the state police.
In a letter to the Col. Kriste Etue, the director of the Michigan State Police, the ACLU alleged that the agency has used such cellphone analyzers, called the Cellebrite UFED, in the field and has taken data from phones.
‘The 4th Amendment protects citizens from unreasonable searches,’ the letter said.
‘With certain exceptions that do not apply here, a search cannot occur without a warrant in which a judicial officer determines that there is probable cause to believe that search will yield evidence of criminal activity.
‘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 cellphones are searched.’
The ALCU said that it has asked for data from the police agency, known as the MSP, detailing how the devices are used, when they are used and if they have been used without the permission of those who own the phones or computers being scanned.
But the MSP has either denied knowing whether the requested information exists or asked for hundreds of thousands of dollars to turn the data over, the ACLU said in its letter to the agency.
‘For more than two and a half years the ACLU of Michigan has attempted to obtain information about the use of these devices through the Michigan Freedom of Information Act,’ the ACLU letter said. ‘Specifically, we have asked for records, reports and logs of actual use. The MSP’s estimated cost of $544,680 for retrieval and assembly of these documents for the entire period that five of these devices have been in the MSP’s possession is, in our view, extraordinarily high.
‘In fact, we were told that no part of that set of documents would be provided unless we agreed to pay a $272,340 deposit.’
The ACLU said that it has filed nearly 70 records requests for the use of two of the devices for shorter time periods, in an attempt to narrow the scope of the data request and make it easier to get -- but still, the MSP hasn’t handed over any information.
‘We were told in each case that there were either no documents available for the period we identified, or that we would be required to pay in advance for MSP personnel to ascertain whether requested documents exist,’ the ACLU said.
After the ACLU of Michigan posted the letter on its website and a few news outlets covered the story, the Michigan State Police issued a statement on the data extraction devices, which it calls DEDs.
‘The MSP only uses the DEDs if a search warrant is obtained or if the person possessing the mobile device gives consent,’ said Tiffany Brown, a state police spokeswoman, in a statement. ‘The department’s internal directive is that the DEDs only be used by MSP specialty teams on criminal cases, such as crimes against children.’
Brown said the DEDs are not being used to extract anyone’s personal information during routine traffic stops.
‘The MSP does not possess DEDs that can extract data without the officer actually possessing the owner’s mobile device,’ she said. ‘The DEDs utilized by the MSP cannot obtain information from mobile devices without the mobile device owner knowing.’
Brown also said the DEDs the agency is using have been adapted for law enforcement use because of an increasing use of such devices by criminals to steal data from others, noting that such technology has become ‘a powerful investigative tool used to obtain critical information from criminals.’
The ACLU said the MSP has refused to help narrow the records requests to get data on the devices and their use by police, a claim that Brown denied.
‘Since 2008, the MSP has worked with the ACLU to narrow the focus, and thus reducing the cost, of its initial Freedom of Information Act (FOIA) request,’ she said. ‘To date, the MSP has fulfilled at least one ACLU FOIA request on this issue and has several far-lower cost requests awaiting payment to begin processing.’
The dust-up between the ACLU and the Michigan State Police has led to false information being spread by the media, Brown said.
‘The implication by the ACLU that the MSP uses these devices ‘quietly to bypass 4th Amendment protections against unreasonable searches is untrue, and this divisive tactic unjustly harms police and community relations,’ she said.
ACLU of Michigan officials were not available to comment on the MSP’s statement on Thursday.
Officials at Cellebrite, the company that makes the data extractors the MSP has used, were also unavailable for comment. But the Glen Rock, N.J., company’s chief executive, Aviad Ofrat, did post a short statement on the firm’s Facebook page, saying ‘Cellebrite is not authorized to discuss any customers’ use of our products or technology.’
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-- Nathan Olivarez-Giles