NJ Supreme Court Will Determine Whether Cops Can Force You to Unlock Your Mobile Device

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By Donald Scarinci. 05/20/19.

The Fifth Amendment protects you from being forced to provide self-incriminating testimony to law enforcement. But does that mean a police officer cannot force or threaten you into providing your password or unlocking your electronic devices? The New Jersey Supreme Court is poised to address that increasingly important question.

State v. Andrews

In State v. Andrews, the New Jersey Supreme Court will decide whether defendant Robert Andrews should have been required to disclose the personal identification numbers (PIN) and passwords for his lawfully-seized iPhones.

Andrews, who worked as an Essex County sheriff’s officer, was identified by a suspected drug trafficker as having helped him conceal his drug-trafficking activities. A trial court judge ordered Andrews to provide the PIN and passwords for his lawfully seized iPhones that he allegedly used to aid the drug-trafficker.

Andrews argued that the compelled disclosure of this information violates his right against self-incrimination under the Fifth Amendment to the U.S. Constitution and the protections against self-incrimination afforded under New Jersey law. However, the Appellate Division sided with the government. It held that the trial court correctly found that compelled disclosure of the defendant’s passcodes did not violate the defendant’s Fifth Amendment privilege against self-incrimination.

“Applying the privilege against self-incrimination to cell phone passcodes would essentially preclude the State from obtaining the contents of any passcode-restricted device as part of a criminal investigation,” Judge Joseph L. Yannotti wrote.

Digital Devices Under the Constitution

The New Jersey Supreme Court isn’t the first to address how to apply decades (and even centuries) old decisions to modern-day electronic devices. Last year, a California judge issued a landmark decision holding that law enforcement officers can’t force individuals to unlock a device with their fingerprint or face.

“Even if probable cause exists to seize devices located during a lawful search based on a reasonable belief that they belong to a suspect, probable cause does not permit the government to compel a suspect to waive rights otherwise afforded by the Constitution, including the Fifth Amendment right against self-incrimination,” Judge Kandis Westmore wrote in her ruling.

Other courts have reached the opposite conclusion, with many concluding that a smartphone’s passcode is not “testimonial” and, therefore, not protected under the Fifth Amendment. Given the important constitutional issues raised by cell phone searches and the divide among lower courts, the issue is likely to end up before the U.S. Supreme Court…

Continue reading at The Observer HERE.

How Technology Helped Solve the Murder of Ellen ‘Ellie’ Weik

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Social media, cell phone signals, online search history and other digital evidence led to the arrest and guilty plea of an Ohio man in the murder of a 23-year-old woman in the summer of 2018.

By Eric Schwartzberg. Dayton Daily News.  May 13, 2019

(TNS) — Technology, especially the kind used with text messages, search engines and geolocations, is being used more prominently by police in criminal investigations.

Those efforts were underscored recently in hundreds of court documents that revealed a Butler County, Ohio, police department determined that Michael Strouse of Liberty Twp. “left a digital trail of evidence related to stalking and pre-meditated murder” of Ellen “Ellie” Weik, a 23-year-old West Chester Twp. woman who went missing in July 2018 and whose body was found in a field in August.

The more than 800 pages of court records unsealed earlier this month and obtained and examined by this news outlet, and a clear indication of how West Chester Police Department detectives used technology to investigate Strouse.

Those efforts included “various search warrants executed on email accounts, social media accounts, cell phone accounts and electronic devices.”

According to court documents, police turned to a law enforcement database to determine harassing texts sent to Weik originated from an account registered to Strouse, who pleaded guilty to Weik’s death and is serving a life sentence for murder.

Police were able to look into a “spoof” phone number with a 213 area code, one used to communicate with Weik in the months before her death, by obtaining data from computer-generated phone number provider GoTextMe.com.

That included account holder information such as user ID, username, sign-up date, last login, email, phone number associated with the account and IP address on signup.

Such information also included Facebook ID, device ID, geolocation and last IP address used, as well as call logs associated with the account.

The account was registered to a “Mikael Strouse” and police used a thorough search of Strouse’s social media pages determined he “definitively used” the name “Mika.” That, according to court documents, linked him to the number used to send Weik harassing and stalking messages…

Continue reading GovTech.com HERE.

Gehrke: As of Tuesday, it got harder for law enforcement to poke around in your online data

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By Robert Gehrke. 05/15/19.

It’s all on “The Cloud” these days — our documents, our photos, our finances, our music, our lives.

It’s so ubiquitous and growing so fast that one recent study said that by 2025 the cloud will be home to an estimated 175 zettabytes of data — whatever the heck that means.

Actually, a zettabyte is a trillion gigabytes, all stashed on the system of remote servers that make up the all-knowing cloud that didn’t even really exist 15 years ago. The researchers said that if that data was burned onto CDs the stack would reach the moon 23 times, which would probably look a little like my car in college.

With all that data floating around out there, we probably don’t often consider who can access it and when and how.

As of Tuesday, Utah became the first state in the nation with a law on the books making it explicit that police and law enforcement must obtain a warrant from a judge before obtaining digital data from third parties, including e-mail providers and cloud services like Dropbox and Google Drive.

Rep. Craig Hall, R-West Valley City, sponsored House Bill 57 after reading about Missouri voters amending that state’s constitution to add electronic records to existing protections — patterned after the Fourth Amendment to the U.S. Constitution — prohibiting warrantless searches and seizures of physical records.

“Statutes have not kept pace with new technology. For example, I think everyone would agree … if I sat down and drafted a document and saved it on my hard drive, if law enforcement wanted that document they would have to get a warrant,” said Hall.

“It’s a little less clear if I sit down at my laptop and store it on Dropbox or Google Drive. … There’s a lot of case law out there that says once you transmit information to a third party you lose that legitimate expectation of privacy.”…

Continue reading at The Salt Lake Tribune HERE.

Cops can’t force you unlock your phone with your fingerprint: judge

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05.10.19. By Steven Melendez.

An Idaho federal magistrate judge refused to issue a search warrant forcing someone accused of having child pornography to unlock their cellphone with a fingerprint.

The ruling, which didn’t identify the accused person by name or gender, cited the U.S. Constitution’s Fifth Amendment, which says people can’t be forced to incriminate themselves, and its Fourth Amendment, which limits searches. Using a fingerprint to unlock a Google Pixel 3 XL phone seized in a search of the person’s home would effectively force them to testify about their ownership of the phone, Chief U.S. Magistrate Judge Ronald Bush wrote.

“In sum, what the Government would characterize as innocuous is instead a potentially self-incriminating testimonial communication because it involves the compelled use of biometrics — unique to the individual — to unlock the phone,” he wrote. “The Fifth Amendment does not permit such a result.”

Other judges have also denied law enforcement requests to unlock phones with fingerprints and facial scans, citing similar logic, Forbes reports.

The routine use of encryption on smartphones and the amount of personal information they often contain have led to a number of legal disputes over law enforcement searching them. Civil liberties groups are currently suing Customs and Border Protection and Immigration and Customs Enforcement over their policies on searching electronics at the border and at airports when people arrive from overseas.

Read the original article HERE.

Google adding automatic deletion option for Location Services and Web & App Activity data

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By Malcolm Owen, May 02, 2019.

Google is offering users a new way to try and safeguard their privacy, by providing an option to automatically delete logs of Web & App Activity as well as Location History data after a specific period of time, rather than requiring users to manually delete it.

One of the biggest collectors and users of personal data from its audience, Google’s products and services rely on a healthy amount of data being collated and mined in order to provide the best results, or to serve optimal advertising. Google has been criticized for its collection policies, but while it does provide some controls to users for how the data is managed, a new option seeks to cut down on a user’s need to manually wipe data they no longer wish to be stored.

In a blog post, Google advises there are simple controls to enable or disable collection for Location History and Web & App Activity within the Google Account settings, with the ability to delete part or all of that data manually. Under the new auto-delete controls, users will be able to set the location and activity logs to wipe when they become three months or 18 months old, or to leave them as they are and to keep manually deleting data.

It is likely Google is willing to offer the option to automatically wipe the older data due to it being less useful to the company than newer logs. While there may be some value in keeping location logs beyond three months for some users, logs beyond 18 months is unlikely to be valuable to either Google or its users.

Google advises the new controls will be arriving first on Location History and Web & App Activity, suggesting there could be other areas within the Google account that could have similar deletion features applied, and will roll out to all accounts in the next few weeks…

Continue reading at AppleInsider.com HERE.