A device soon to be available to state and local law enforcement could allow police officers to bypass passwords and download everything on an electronic device in a matter of seconds. The rapid development of this kind of technology underscores the need to exert strict controls over the types of surveillance equipment police officer have access to, and how they use it.
Law enforcement touts the “textalyzer” as a valuable tool to enforce texting and driving laws, but the sheer potential intrusiveness of this device raises significant privacy concerns. The device can not only determine if the driver was texting, it can also access emails and call data, and can determine what apps were in use. As an article on HackRead.com put it, textalyzer can record “their every click, tap or swipe.”
Cellebrite developed the technology. The Israeli firm made news when reports came out that the FBI used its services to unlock the San Bernardino gunman’s iPhone. The company has claimed it can crack any locked cell phone, and about four months ago the company revealed that its researchers could unlock and extract data from iPhone 4S, 5, 5C, 5S, Samsung Galaxy S6, Galaxy Note 5 and Galaxy S7. A company spokesperson explained how the textalyzer would work in the field during a demonstration for New York legislators and reporters.
“[Police] can simply just tap one button … and it will process, about 90 seconds or so, and it will show what the last activities were — again that could be a text message and so on — with a time stamp.”
He insisted the technology would not be able to download the phone’s content, but this seems dubious given the company’s track record. Once police have the capability of accessing such information, they eventually will.
Even though the device remains in its testing phase, a bill introduced in the New York legislature would authorize police to use a textalyzer after traffic incidents — even minor fender-benders — to determine if the person was using their phone while behind the wheel.
Currently police in New York have to get a warrant before accessing a cell phone. Police don’t like that restriction. Ben Lieberman’s son was killed in a crash. He explained to NPR the difficulty of obtaining a warrant.
“We often hear, ‘just get a warrant’ or ‘just get the phone records.’ … The implication is that the warrant is like filling out some minor form. It’s not. In New York, it involves a D.A. and a judge. Imagine getting a D.A. and a judge involved in every breathalyzer that’s administered, every sobriety test that’s administered.”
While one can sympathize with Lieberman’s desire to get to the bottom of his son’s death, a person’s grief does not justify scrapping basic privacy rights, and state and federal constitutional restrictions on searches and seizures. New York ACLU legislative council expressed deep concerns about the privacy issues raised by this developing technology.
“Distracted driving is a serious concern, but this bill gives police power to take and search our phones after almost every fender-bender. This is a concern because our phones have some of our most personal and private information — so we’re certain that if this law is enforced as it is proposed, it will not only violate people’s privacy rights, but also civil liberties.”
Ultimately, police should have to get a warrant before using a device such as the textalyzer.
The existence of the textalyzer becomes even more concerning given the current makeup of the surveillance state. Undoubtedly, cops across the country will soon be using this technology with virtually no oversight and at times without local government officials even knowing it. We’ve already seen this happen with stingray technology These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
Local police have access to a mind-boggling array of surveillance equipment. As it now stands, many law enforcement agencies can obtain this high-tech, extremely intrusive technology without any approval or oversight.
The federal government often provides grants and other funding sources for this spy-gear, meaning local governments can keep their purchase “off the books.” Members of the community, and even elected officials, often don’t know their police departments possess technology capable of sweeping up electronic data, phone calls and location information.
In some cases, the feds even require law enforcement agencies to sign non-disclosure agreements, wrapping surveillance programs in an even darker shroud of secrecy. We know for a fact the FBI required the Baltimore Police Department to sign such an agreement when it obtained stingray technology. This policy of nondisclosure even extends to the courtroom, with the feds actually instructing prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported, a Baltimore detective refused to answer questions about the department’s use of stingray devices on the stand during a trial, citing a federal nondisclosure agreement.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
As surveillance technology continues to proliferate, it’s imperative that state and local governments pass laws and ordinances requiring police to get local government approval before acquiring and deploying spy-gear. This takes a first step that creates an environment of transparency and accountability, and naturally limits the types of equipment police departments can acquire.
You can download model legislation HERE.
Photo by Lord Jim via Flickr.