This morning, the United States Supreme Court made one point perfectly clear: Arresting officers are to stay out of suspects’ cell phones until such time as they get a warrant. Interesting about the decision is that it involved two cases, one involving a basic flip “feature” phone, and the other involving a smartphone.
Previously, warrantless searches of an arrested person’s cell phone were considered lawful under the Search Incident to Arrest (SITA) doctrine.
The Court found that a cell phone is a very intimate device and the average phone contains a very detailed digital record of it’s owners entire (private) life. Given 10 minutes with someone’s smartphone, you can learn more about them than you ever could with full reign of their house. And that’s what the decision was about.
While this decision is very important for your privacy, it’s also very important that you realize what it does and does not do, specifically, and what you can do to enhance your privacy.
There’s definitely a creepy-factor to be had with the idea that police can rifle through your phone at a whim. Consider the possibility that pretty women might be pulled over and given a “random” search, including a complementary data sweep, in hopes that nude photos may be found on the device. Here’s the problem: today’s decision won’t necessarily stop that from happening. While it makes the action illegal, it won’t magically stop it from happening.
In reality, in the real world where not everyone follows the rules, it only means that what’s found on your phone can’t be used as evidence against you until a warrant is obtained. It won’t stop information on your phone from being used for a less scrupulous officer’s personal gain (or pleasure), and it won’t stop the police from gaining information from your phone and then submitting it into evidence claiming they found it elsewhere.
For real protection, you need to take matters into your own hands. At the very least, put a PIN lock on your phone so that anybody wanting to look through it needs information from you before they can do so. Even better, most phones offer some sort of encryption solution that ensures “bypassing” the PIN/Password simply isn’t mathematically possible.
Now, this decision will also have another odd side-effect. Now that searching a cell phone immediately upon arrest is now illegal, the focus is now going to be on preserving the phone for a later search (with a warrant), and preventing a suspect from using remote management tools to destroy evidence. How? My money is on “Faraday Pouches” that the police will place your phone in.
A “Faraday Pouch” is a Faraday cage in the form of a small pouch. A Faraday Cage is a wire enclosure or mesh that prevents radio frequency radiation from entering or leaving the enclosure. There’s one on the front of your microwave. The general idea behind the police using one is that once your phone is placed inside the pouch, no radio communication (cellular, Wi-Fi, Bluetooth, or otherwise) will be getting in or out, so you can’t remote wipe the device the second you make bail and get home.
Now, I’m not recommending that you keep illegal things on your phone, but should you have a need to remote wipe a phone should it enter police custody, I’d recommend using Tasker or a similar program to allow your phone to recognize the immediate and extended drop in network availability, and erase itself. Immediate may be hard to detect, so an extended drop in signal strength may be a good metric to detect the presence of a Faraday cage. Setting a timer to, say, one hour, will prevent your phone from self destructing when you enter an elevator or any other place lacking cell service.
Finally, they will ask for your permission to search the device, possibly under the threat of violence or additional charges (obstruction of justice is the favorite one to use), since this bypasses the warrant requirement. Remember, you can always say no.