Police in Michigan, Wisconsin, and California can rummage through your cell phone data without a warrant (in Wisc. they technically need to prove "exigency", typically a triviality). In Mich. and Calif. citizens who refuse to allow the police to take their personal data can be arrested for obstructing an investigation.  (Source: Matt York, Associated Press)

Michigan State troopers are using a device that seizes all data from smart phones. They're regularly performing the scrapes during routine traffic stops. There's no public oversight of what happens to that data.  (Source: Cellebrite)

The question of whether state Supreme Courts can kill citizens' Constitutional freedoms is a one that will likely stir much debate and conflict. Ultimately, those wishing to push the nation towards a police state may find the Founding Fathers' ideas hard to kill, though.  (Source: Alan Moore/David Lloyd)
Cops in Mich., Wisc., and Calif. can inspect ANYTHING on your cell phone -- pictures, call history, and more

Whether it's real life historical regimes -- like Tojo's Imperial Rule Japan or Italian Nationalists -- or those in fictional works -- like George Orwell's Animal Farm or Alan Moore's V is For Vendetta -- the topic of a fascist police state is one that has simultaneously fascinated and frightened many.

In the United States, over the last decade police have enjoyed a growing set of warrantless powers in the name of justice.  In the last year, these powers expanded yet again, when police in California, Wisconsin, and Michigan began searching and seizing citizens’ cell phones -- without warrants. 

I. Police Seize Citizens' Smartphones

In January 2011, California's Supreme Court ruled 5-2 that police could conduct warrantless inspections of suspects' cell phones.  According to the majority decision, when a person is taken into police custody, they lose privacy rights to anything they're carrying on them.

The ruling describes, "this loss of privacy allows police not only to seize anything of importance they find on the arrestee's body ... but also to open and examine what they find."

In a dissenting ruling, Justice Kathryn Mickle Werdegar stated, "[The ruling allows police] to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person."

But California was not alone.  Michigan State Police officers have been using a device called Cellebrite UFED Physical Pro for the last couple years.  The device scrapes off everything stored on the phone -- GPS geotag data, media (pictures, videos, music, etc.), text messages, emails, call history, and more.

Michigan State Police have been reportedly regularly been scraping the phones of people they pull over.

In neighboring Wisconsin, the state Supreme Court has ruled that while such searches are generally illegal, their evidence can become admissible in court if the police demonstrate an exigency (a press need) for the information.

Essentially this ruling offers support for such searches as it indicates that they can give solid evidence and ostensibly offers no repercussions to law enforcement officials conducting the officially "illegal" procedure.

So far the only state to have a high profile ruling against the practice was Ohio.  The Supreme Court of Ohio ruled that warrantless smart phone searching violated suspects' rights.  The requested the U.S. Supreme Court review the issue, but the request was denied.

II. What Does the Constitution Say?

The United States Constitution ostensibly is the most important government document in the U.S.  It guarantees essential rights to the citizens of the U.S.

Some of those rights are specified in the Fourth Amendment, part of the original Bill of Rights.  It states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 

The Constitution explicitly states that effects of a person cannot be unreasonably seized without a warrant.  

Of course courts must play the vital role of defining what a "reasonable" search is.  But by extending the limits of searches to deem nearly all searches "reasonable", no matter how tenuous the connection to a suspect's detainment, this and several other decisions have created an erosion of the protections in the amendment.

Essentially what court rulings in California, Michigan, and Wisconsin indicate is that the courts believe the Constitution is no longer valid, or that certain Constitutional freedoms can be specially selected for elimination.

III. Benefits and Dangers

Some police officers and politicians argue that there are obvious benefits of warrantless searches, including of cell phone data. Officers claim they can obtain evidence that could be destroyed, concealed, or otherwise go undiscovered if they had to go through the standard process of obtaining a warrant.

These groups argue, "if you have nothing to hide, you have nothing to worry about."

However, serious issues over the practice also seem apparent.  For example, police appear to be taking digital copies of the data on users' cell phones, in addition to the applicable evidence.  There is virtually no oversight or transparency into how this data is stored or managed. 

In short, citizens face a tremendous violation of privacy.  They have little recourse to take action against officers that abuse the obtained information for business or personal purposes, as there's few laws explicitly applicable such an issue.

The allowance also opens a gaping door to condoning police harassment of citizens.  It would be pretty easy for police to "detain" a targeted individual on questionable charges and seize their phone. 

IV. ACLU Fights Back

In Michigan and California, the American Civil Liberties Union (ACLU) is challenging these warrantless searches.

Particularly in Michigan, the case is becoming contentious as the state is refusing to give the ACLU information on the data it has obtained from users' cell phones.  The state has told the ACLU that it must pony up $544,680 USD to process the records, if it wants them.

The ACLU is outraged at that exorbitant demand.  Mark P. Francher, a Michigan staff attorney with the ACLU's Racial Justice Project, states, "Through these many requests for information we have tried to establish whether these devices are being used legally. It’s telling that Michigan State Police would rather play this stalling game than respect the public’s right to know."

V.  The Big Picture

Ben Franklin, in his notes to the Pennsylvania Assembly famously wrote, "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

Warrantless searches -- a critical component of any fascist police state -- were clearly deemed illegal by the founding fathers.

When combined with recent allowances of warrantless wiretapspolice arrests of people who photograph them, warrantless invasion of property, and warrantless tracking of citizens the resulting picture is somewhat alarming.

The police in the U.S. are being increasingly exempted from following due process and given freedom to follow their commanders' dictates -- whatever they may be.  Meanwhile the rights and freedoms of citizens is eroding at an equally rapid pace.

Some of these issues may end up at the U.S. Supreme Court, but the country as a whole needs to consider and address them, as well, in the meantime.

Update 1: April 21, 2011 6:55 p.m. -

The Michigan State Police have shared with us the following statement:

Recent news coverage prompted by a press release issued by the American Civil Liberties Union (ACLU) has brought speculation and caused inaccurate information to be reported about data extraction devices (DEDs) owned by the Michigan State Police (MSP).

To be clear, there have not been any allegations of wrongdoing by the MSP in the use of DEDs.

The MSP only uses the DEDs if a search warrant is obtained or if the person possessing the mobile device gives consent. The department*s internal directive is that the DEDs only be used by MSP specialty teams on criminal cases, such as crimes against children.

The DEDs are not being used to extract citizens' 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. The DEDs utilized by the MSP cannot obtain information from mobile devices without the mobile device owner knowing.

Data extraction devices are commercially available and are routinely utilized by mobile communication device vendors nationwide to transmit data from one device to another when customers upgrade their mobile devices.

These DEDs have been adapted for law enforcement use due to the ever-increasing use of mobile communication devices by criminals to further their criminal activity and have become a powerful investigative tool used to obtain critical information from criminals.

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. 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 MSP provides information in accordance with the Freedom of Information Act. As with any request, there may be a processing fee to search for, retrieve, review, examine, and separate exempt material, if any.

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

Note, as the ACLU and this article state, the police have to ask a citizen to get their phone during an investigation.

The police department's accounting that the device is not used during traffic stops conflicts with local reports and local testimony.  It is unclear whether this is due to confusion in the department, officers breaking with protocol, or problems with eyewitness credibility.

The statement does not state whether or not charges of obstruction of justice can be filed against citizens refusing to part with their mobile devices.

It also makes it clear that the full body of the collected information has not been released, as the ACLU has accounted.

We will make more information available as we receive it.

"A lot of people pay zero for the cellphone ... That's what it's worth." -- Apple Chief Operating Officer Timothy Cook

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