Government’s Ability to Search Phones Through Legal Loophole

Speakers from the Legal Aid Society revealed at DEF CON last Friday that, although the US upholds the belief in the presumption of innocence until proven guilty, law enforcement can easily justify searching digital devices based on a mere suspicion of wrongdoing. Existing technology enables this practice, and vague legislation allows it to occur.

“Technically and legally, there hasn’t really been much to stop the government from getting the information they want if they want it,” Allison Young, digital forensics analyst at The Legal Aid Society told ReturnByte. It’s also easy. Without any new skills or tools, Young was able to find sensitive information that could be used, for example, to prosecute someone for having an abortion as it becomes increasingly illegal across the country.

The problem is not just the state of local law either, it is embedded in the constitution. As Diane Akerman, digital forensics attorney at the Legal Aid Society explained, the Fourth Amendment has not been updated to address modern issues like digital data. The purpose of the Fourth Amendment is to protect people from “unreasonable searches and seizures” by the United States government. This is where we get legal protections, like warrants, where law enforcement needs court approval to search your home, car, or other place for evidence.

Today, it also includes your digital assets from your phone to the cloud and beyond, making room for legal loopholes as technology advances outpace the law. For example, a search warrant cannot be challenged before it is executed, Akerman said. For physical evidence that makes sense because we don’t want someone flushing evidence down the toilet.

However, this is not how your social media accounts or cloud data work, as these digital records are much more difficult to clean. So law enforcement can get a warrant to search your device, and there’s no process in advance to challenge whether the warrant is appropriate. While there is a reason to grant a warrant, Akerman and Young showed that police officers can use intentionally vague language to search your entire cell phone when they know the evidence may only be in one account.

“You take a case when they already have the information, which means the cat is often out of the bag, and even if it’s suppressed in court, there are still other ways to use it in court,” Akerman said. “There is no control over how the government implements words on digital devices.”

The problem only gets worse with the third-party apps you use. Under the Fourth Amendment, if you give your information to a third party, you’ve lost your sense of privacy, Akerman said. The government can often easily get information from the cloud because of that, even if it is not completely relevant to the case. “You’d be outraged if the police broke down your door and copied five years worth of texts for you when you walked up on a parking ticket five years ago, it’s just not relevant,” Young said.

There are no easy ways for an individual to better protect themselves from these searches. There are ways to lock down your device on a case-by-case basis, but that changes with each update or new feature, Young said. Instead, both speakers pushed to put responsibility back on the systems and structures that enforce this law, not the individuals affected by the law.

“I live in a world where I have to exit modern society so that other people don’t retain my information in some way,” Akerman said. “The question really should be, what responsibility do these people have to us for making us profit instead of forcing me to stay away to protect myself?”