Conversations regarding sensitive data, privacy and wiretapping is no new concept. For decades, public authorities have attempted to possess valuable and sensitive data.
However the way data, information and potential evidence that is legally obtained, ie a search warrant, vs the way new technologies have enabled contractors to attempt to hack passcodes and access electronic devices.
Unbeknownst to the owner of the device, new technology may be leading to unlawfully obtained data falling into the hands of legal authorities.
Recently new technology has been introduced to police outlets that pertain to a potential violation of an individual's fourth amendment rights. This being illegal search and seizure.
Several civil rights and civil liberty advocates have expressed serious concerns and doubts pertaining to the legality of these devices.
What Technology is Being Worked On?
The device in question is called Hide UI by Grayshift and law officials spoke on anonymity out of concern in violating a non-disclosure affidavit (NDA). The law officials shared knowledge that this device attempts to unlock an IPhone ® with the assistance of technology by guessing four to six digit key code variations. Grayshift states that the amount of time differs greatly for unlocking a cell phone with four or six digit pass codes from hours to days, while eight to ten digit pass codes can take months or years to unlock. That's where phase two comes into play.
Phase two of this involves deceitful techniques that may be unlawful. Per the article, an anonymous source states that if an eight or ten digit passcode is used, a law enforcement agent may hand the phone to the suspect and alert the suspect that they can make a phone call to a lawyer, or loved one. Upon unlocking the passcode, an installed application stores the unlocked code in a text file that can later be retrieved by law enforcement officials. But is it legal to mislead a suspect and obtain sensitive and potentially incriminating evidence without a search warrant or disclosure? Can information be pulled from devices without the owner's consent, or a search warrant?
Are These Boxes Legal?
This is a developing story and there is minimal precedent available to fully or accurately provide an answer (at least with regards to Grayshift). However, in several cases, illegally obtained evidence has been thrown out. Additionally, the ACLU has expressed serious concerns regarding the legality of this device and software.
Jason Dunkle, a State College criminal defense attorney, has successfully argued that certain evidence obtained exceeds the scope of the warrant, resulting in the evidence being suppressed. Since many of us are not lawyers, if you believe sensitive information was obtained unlawfully by an official it may be best to consult with an experienced professional regarding the legality of evidence.
Based on the unique jurisdiction of your locality a judge may consider this information to be obtained illegally. Two sources that spoke anonymously on this topic mentioned that a phone will only be plugged into a Grayshift box if they have a search warrant. But what happens if sensitive information obtained from an electronic device is obtained without going through the proper channels to obtain a search warrant?
If information is obtained illegally a judge may have to dismiss the evidence per the exclusionary rule. If the password and hidden software is installed on the device without the suspect's consent, it may be considered entrapment. Per Title 18 § 313, entrapment is defined as:
A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
If officials persuaded a suspect to unlock their phone and then obtain sensitive information, it may very well be considered entrapment and the evidence thrown out by a judge. This type of software may also be considered an unreasonable search and seizure which can be argued is a violation of the fourth amendment of the US Constitution.
I'm Concerned About My Digital Privacy - What Can I Do?
With more and more services shifting from traditional, in person and paper templates to ones in the digital realm, digital privacy has become an ever growing and quickly evolving legal landscape. Data privacy lawyers are an emerging sector of the legal workforce and have shed doubts and concerns on several public policies.
If you are concerned about your digital privacy being compromised, the best advice is to abstain from using a cell phone. This is an unlikely solution for most people however, as cell phones have become an integral component in most of our daily lives. For many it's the first thing we look at in the morning and last thing we see at night.
Another solution is to ensure that all of your passwords are unique. Don't use the same password that you've used since the ninth grade. If doing so, you put yourself at a much higher risk of data getting hacked. For Iphone ® users, a passcode with ten digits can help secure your privacy. Ensure the number is random and only known to you. Never, ever disseminate sensitive information to anyone to help maximize privacy.
In the coming years and decades one can reasonably expect our data to become even more valuable. There is so much information on our devices that many are doing whatever it takes to obtain this sensitive content. In this ever evolving digital landscape law officials are eager to get information from suspects' electronic devices. However, it is imperative that this sensitive information is obtained legally and not in violation of constitutional rights. A law official can obtain information from an electronic device, but they are mandated by law to obtain a search warrant.