Law Enforcement Agencies Push Cell Phone Providers to Store Text Messages

The major cell phone providers, including AT&T, Verizon and Sprint, may be required to keep information about their customers’ text messages for at least two years according to a proposal that various law enforcement agencies submitted to Congress.

A group of different police organizations asked legislators to require wireless companies to retain information, warning that a lack of federal requirements leaves a major hole in the ability of law enforcement agencies to launch proper investigations. The move was designed to include text message retention in an upcoming overhaul of the 1986 Electronic Communications Privacy Act, a privacy law meant to reflect the new realities of the modern technological era.

As text message usage has exploded recently so have the instances of their use in criminal investigations. They have been used as evidence in robberies, drug dealing and financial fraud cases. One great example occurred in 2009 when SkyTel turned over a whopping 626,638 text messages in Michigan.

Currently, the approaches used by the various companies are all over the place. Verizon and some others retain their text messages only for a brief period of time. Others, including T-Mobile do not store the messages at all. A Justice Department document obtained by the ACLU found that in 2010, AT&T, T-Mobile, and Sprint did not store the contents of text messages. Verizon did for up to five days, a change from its earlier no-logs-at-all position, and Virgin Mobile kept them for 90 days. The carriers generally kept data like the phone numbers associated with the text for 90 days to 18 months; AT&T was an outlier, keeping it for as long as seven years, according to the chart.

The groups making the request include the Major Cities Chiefs Police Association, the National District Attorneys’ Association and the National Sheriffs’ Association. It has not yet been made clear by the groups whether they want the telecommunications companies to store the content of the text messages or only to hold on to data including the numbers used to send and receive the messages. No matter which approach is employed it will be a massive responsibility for the cell phone providers with some 2 trillion text messages sent in the U.S. last year, coming out to nearly 6 billion per day.

The problem with the request for retaining the text messages is that there is ultimately only one reason for companies to do such a thing: to keep databases of information on their customers so police officers can fish for evidence at their leisure.

Source: “Cops to Congress: We need logs of Americans' text messages,” by Declan McCullagh, published at CNET.com.

Looking Through Your Smartphone: Electronic Pocket Litter and Police Searches

A recent article discussed a seemingly boring but ultimately important issue that may be raised before the Supreme Court in the coming session: pocket litter. “Pocket litter” is a phrase used in law enforcement circles to refer to items of miscellaneous information carried on a person. This comes into play when a person is arrested or otherwise detained by an officer and they are subject to a search.

When law enforcement officers arrest someone, they conduct a thorough search of the suspect and his or her immediate possessions. This is what is known as a “search incident to arrest.” Any and all items found during this search are deemed admissible in Court. During a typical search officers are trained to look for items that might provide useful evidence for the case or that might cause harm to themselves or others. Another use of such searches is to gather information that might provide a clue about other individuals involved in the alleged criminal activity.

Seemingly mundane items found in people’s pockets or purses can provide a significant amount of information. Slips of paper with quickly written messages, phone numbers, names, addresses business cards, etc. all make for great leads. Beyond these obvious examples, scraps of paper including receipts, bus passes or airplane tickets also provide valuable information to those seeking to identify a suspected criminal and any possible criminal associates.

One thing that has happened on this front given the technological changes seen recently is that the items that often make up such pocket litter have changed. Originally the term referred only to small scraps of paper generally containing only a relatively small amount of information. Today, the term has grown to include electronic devices such as smartphones, tablets, iPods, and even laptops from which huge amounts of information can be collected. These devices carry voicemails, call and text logs, photos, Internet browser history and even GPS information.

The question facing many appellate courts today is just how far such a search can go when high value electronic pocket litter is involved. Cellphones in particular present a puzzling gray area, as there have been conflicting rulings between various U.S. Circuit Courts. This conflict makes it more likely that the issue will end up before the Supreme Court at some point to help clarify the issue. Judges confronted with such facts often find themselves lost, comparing cellphones to diaries while trying to analogize to prior cases from decades ago that have little if any relevance to the challenges they face today. The Supreme Court should step in and shed light on the issue, hopefully catching the legal system up to changes in technology.

Read: “Pocket Litter: The Evidence That Criminals Carry,” by Scott Stewart, published at RightSideNews.com.

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Sexting Teacher’s Aide Given New Sentencing Hearing by the TN Court of Criminal Appeals

A former Knox County Schools teacher’s aide who sent naked photos to a Gibbs High School student has been given a new sentencing hearing as the result of a recent ruling by the Tennessee Court of Criminal Appeals. Scot E. Vandergriff won the hearing to determine whether he should avoid conviction for sending “inappropriate texts and nude photos” to a male student at the school.

The Court said that the problem began in October of 2009 when Gibbs’ Principal Lynn Hill called the police after a parent complained that there were sexual texts on her son’s phone. The student’s teacher then alerted the principal who, in turn, confronted Vandergriff about the inappropriate text messages.

Vandergriff admitted to the principal that he had sent the photos. He then turned over his phone to authorities and gave consent to search the mobile device. The phone contained pictures of his anatomy and a subsequent investigation showed numerous text messages back and forth with the student, including nude photos.

Vandergriff decided to plead guilty as part of a plea deal to a charge of sexual exploitation of a minor and was sentenced to a two-year prison term. After pleading guilty he applied for judicial diversion, a program for first-time offenders that avoids jail and a criminal record if he were to abide the requirements of probation. The trial judge however, refused to allow Vandergriff to enter into the program. This decision was appealed and the Court of Criminal Appeals agreed that Vandergriff was entitled to another, more complete hearing.

The Court said that the judge, Knox County Criminal Court Judge Mary Beth Leibowitz, did not adequately explain her decision to deny Vandergriff diversion. The Court said that the record does not demonstrate that the lower court considered all the factors in ruling against the application. All Leibowitz said was that she was going to “err on the side of caution” and deny the diversion. This statement is not a sufficient explanation for why Vandergriff does not qualify.

To read the full opinion, click here.

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When GPS Tracking Violates Privacy Rights

For the right to personal privacy to survive in America in this digital age, courts must be meticulous in applying longstanding privacy protections to new technology. This did not happen in an unfortunate ruling last month by a three-judge panel of the United States Court of Appeals for the Sixth Circuit.

The case concerned a drug conviction based on information about the defendant’s location that the government acquired from a cellphone he carried on a three-day road trip in a motor home. The data, apparently obtained with a phone company’s help, led to a warrantless search of the motor home and the seizure of incriminating evidence.

The majority opinion held that there was no constitutional violation of the defendant’s rights because he “did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cellphone.”

The panel drew a distinction between its ruling and a ruling by the Supreme Court last January in United States v. Jones, which held that the placement of a hidden device on a suspect’s car without a valid warrant violated the Fourth Amendment. The three-judge panel said that its case, in contrast, did not involve physical trespass on the suspect’s private property. The judges also asserted that the tracking in the case before them was not sufficiently “comprehensive” to be “unreasonable for Fourth Amendment purposes” and trigger the need for a warrant — even though the police tracked the defendant’s every move for three days, hardly a negligible time period.

The Jones case suggests that the Supreme Court’s future direction may be more protective of privacy in cases involving new and potentially invasive technologies. In two concurring opinions in that case, a majority of justices agreed that “longer-term” GPS monitoring impinged on expectations of privacy.

As Justice Sonia Sotomayor stressed in her concurrence, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” If anything, tracking someone using cellphone GPS capabilities is even more invasive than following someone with a GPS device attached to a car since it allows for 24/7 coverage. Most people carry their phones wherever they go, including into their homes.

The circuit court panel majority concluded that because the defendant’s phone emitted information that could be picked up by law enforcement agents, he had no reasonable expectation of privacy and thus no warrant was needed to conduct the surveillance. This was at odds with yet another Supreme Court ruling, in 2001, involving a thermal-imaging device aimed at a private home from a public street.

Carrying a cellphone should not obliterate privacy rights or the Fourth Amendment’s warrant requirement. The full Sixth Circuit should grant a pending request for a rehearing and reverse the panel’s damaging ruling.

Editorial in Sunday, September 23, 2012 New York Times

Sixth Circuit says cell phone GPS data can be used to track criminals

by Lee Davis

• United States v. Melvin Skinner

The Sixth Circuit recently ruled that using GPS data to track the owner of a pay-as-you-go cell phone is constitutional and much the same as using dogs to hunt for a fugitive.

In the case of U.S. v. Skinner, the defendant used a pre-paid cell phone obtained by providing false identity information (also known as a “burner“) to communicate with co-conspirators as he brought a motor home filled with marijuana from Arizona from Tennessee.

Agents discovered the cell phone number that the defendant was using and obtained a court order requiring the cell phone company to disclose location information of the phone to the agents. The government used the location information to track the car for three days, eventually catching up to the car at a rest stop in Texas. Local police then brought out a dog to sniff for marijuana which resulted in the dog finding 1,100 pounds of pot.

Skinner was ultimately arrested and charged with various drug-related crimes, including possession with the intent to distribute and conspiracy to commit money laundering. He was convicted on all counts and sentenced to more than 19 years in prison. Skinner appealed, claiming law enforcement’s use of GPS data from his cell phone was a warrantless search in violation of his Fourth Amendment rights.

The Sixth Circuit disagreed, upholding the conviction of Skinner, saying, “The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.” Judge John Rogers wrote, “Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent.”

Rogers noted that criminals often use pay-as-you-go phones, presumably because they are more difficult to trace. "When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them,” Rogers wrote. The majority opinion concluded by saying that the defendant did not have a reasonable expectation of privacy regarding the location broadcast by his cell phone.  

To read the full opinion, click here.

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