Drivers should know there's an electronic "reader" law enforcement and intelligence personnel can use to quickly access and download all information from your cellphone. (More) The ACLU requested information related to the devices. However, one of the challenges ACLU is having with a FOIA on a cellphone forensic tool is the unresponsiveness of the Michigan State Police (MSP).
Attached to using this device are several legal questions related to lawful searches and seizures. A close reading of the test report for the device shows multiple law enforcement and intelligence organizations have access to the test report and presumably use this cellphone forensics tool.
We encourage others seeking information on 4th Amendment legal issues to consider requesting detailed information from non-MSP law enforcement and intelligence community sources, personnel, and agencies.
Widespread Non-Electronic Data, Records?
The test report shows alot of data can be quickly downloaded. ACLU requested detailed information through the FOIA process. The Michigan State Police (MSP) responded that the cost to respond to that FOIA request would be expensive: About $500,000.
This fee suggests that there are many records; and that despite Information technology options, that there are records which are not readily accessible.
Brady
The high fee also suggests that there are records related to the cellphone forensic tool which are derivative products, not connected directly to the internet, and are non-electronic. That, in itself, is important information: The possible existence of relevant information which defense counsel through Brady should -- but do not -- have access.
The difficulty in finding these records related to the forensic device should be a matter of judicial interest: Whether government agencies are properly responding to defense counsel requests for information. It's fair to question whether an agency that requires this much money to conduct a search can reasonably show to a Federal court it has the information technology to adequately comply with Brady.
The issue isn't narrowly that MSP hasn't adequately responded. Rather, despite multiple agencies likely using this device, it's not publicly understood how the cell phone forensic tool is used within the contours of the Constitution. Without that information, it's not likely legal counsel -- or defense counsel via Brady -- would have the information to challenge the use of data gleaned during trial.
Intelligence Community
One of the test reports includes an introduction listing multiple agencies. Not only are specific federal agencies listed, but there are general references to law enforcement and intelligence agencies.
Who Reads Test Reports on this Forensics Tool
From the Justice Programs Report:
"The objective of the CFTT program is to provide measurable assurance to practitioners, researchers, and other applicable users that the tools used in computer forensics investigations provide accurate results."
Ref 1.
"Users" presumably means personnel in the intelligence community.
There's explicit reference to US Federal Government agencies highly energized after 9-11 to collect intelligence:
The Computer Forensics Tool Testing (CFTT) program is a joint project of the National Institute of Justice (NIJ), the research and development organization of the U.S. Department of Justice (DOJ), and the National Institute of Standards and Technology’s (NIST’s) Office of Law Enforcement Standards, and Information Technology Laboratory. CFTT is supported by other organizations, including the Federal Bureau of Investigation, the U.S. Department of Defense Cyber Crime Center, U.S. Internal Revenue Investigation Division Electronic Crimes Program, and the U.S. Department of Homeland Security’s Bureau of Immigration and Customs Enforcement, U.S. Customs and Border Protection, and U.S. Secret Service.
Ref 1
Open Source of Government Purchase Data
Sometimes there are emails from contractors which contain the financial accounts of US government agencies. Recently, someone claimed they accessed emails from a contractor conducting malware analysis services for the US government. Those emails are available in the open media.
Accordingly, if those emails are bonafide, the financial account numbers in those disclosed emails should match easily searachble data within the contracting community per the Federal Acquisition Regulations.
If you desire to narrow your search -- something we are unable to directly link -- focus on the .XLS spreadsheets which are the purchase orders. The company sent via email these .XLS files which included the account numbers for some of the US government agencies listed above.
The .XLS files could have been sent both electronically directly to Boston to one of the agencies of interest; or through the US mails. Once fully paid, there would have been a record of funds transmission through the accounting system. That transaction data can be compared to the other purchase orders for the forensic tool.
We encourage FOIA legal counsel to request from the listed US government agencies copies of the purchase orders for these forensic tools. Those purchases can be cross-indexed with the purchase orders, shipment dates, training for the equipment, and any post-purchase contract support to include maintenance, software upgrades, or other actions requiring emails, purchase orders, presentations re CALEA.
DOJ OLC Guidance
A recently disclosed July 2002 DOJ OLC (re disclosure of secret grand jury information to the Executive Branch and intelligence community, ref 4) shows the President views a 5th Amendment violation as being only an improper use of information during trial.
US and state law enforcement and intelligence agencies likely relied on this 2002 DOJ OLC opinion to justify the collection of information without a warrant when the "substantial" purpose of that interception was not prosecution. This is a (faulty) circular way of arguing that if the forensic tool is not used to "primarily" or "substantially" engage in prosecution, then there can be no 4th or 5th Amendment violation.
Some of the legal questions relate to how the intelligence community and law enforcement portray their activity to the court: Is that activity "primarily" or "substantially" related to prosecution, evidence collection, intelligence gathering, or safety during "emergencies". Depending on the legal nuances, a government operation to collect cell phone information using this forensic tool may or may not -- in DOJ OLC view -- be subject to judicial review.
One issue before the court -- if this data-use/access were challenged -- could be whether the intent of the executive was to make negligible the protections of the 4th and 5th Amendments; and whether the executive had or had not improperly bypassed judicial review. In part, because some of these legal issues were never publicly confronted re the FISA violations under TSP, it's likely we'll hear about other technologies that deserve (and have escaped) judicial review because of "lack of ripeness."
Some believe that courts should exclude information that has been illegally gathered. However, this does little to prevent the non-prosecution uses of that unlawfully gathered information; nor does it address how that unlawfully captured cell phone information might be used during an interrogation of a civilian non-combatant without (denied) access to counsel.
Discussion Points for FOIA Legal Counsel:
The Justice Programs test report Ref 1 includes AG Holder on the title page. What effort has been made to request through FOIA copies of the records DOJ used to conduct the test and issue the test report?
Page 2 of the ACLU letter to the company ref 3 providing the devices to MSP includes several questions about procedures. Also, in the Justice Department test report introductionref 1 are lists of agencies which have access to these test reports. Presumably, where there are question of MSP related to procedures in using these devices, there are parallel procedures with other government agencies using the same device. Has the ACLU been able to tailor these information requests to non-MSP sources?
Conclusion
DOJ OLC created a legal playground for law enforcement and the intelligence community to brazenly violate the Constitution. It is a matter of judiical review whether the state and federal governments have or have not impermissibly violated the Constitution using this cell phone forensics tool.
History teaches us that any government -- even this one -- does abuse power in secret. Sunlight is the first step toward building an informed citizenry It's premature to cast aside any option of lawful reform until we understand more. We trust in God, not/ government.
The Kings of Europe used the excuse of domestic instability as an excuse to lock people away. This abuse was remedied with Habeas.
Perhaps a new way forward is to discuss which legal protections should be institutionalized through federally protected rights within a reformed and modernized Constitution. Until then, it's difficult to imagine any government agreeing to have its power retrained. King George in 1776 did not understand things would change.
Perhaps more government abuse of power might inspire the American public to conclude real reforms are needed with a modernized list of Constitutional protections. Until then, the public can reasonably conclude this government will abuse its authority to escape needed judicial review.
The Michigan State Police refusal to timely respond to a reasonable request for information has brought needed attention to another post-9-11-era abuse. Their arrogance has brought more attention to their peers in the law enforcement, intelligence, and defense sectors. Some of these legal questions might have been addressed had the US and State governments cooperated in reviewing FISA abuses and violations. However, a failure to address FISA abuses at the government level should not be a green light for those abuses to continue nor for the public to believe that abuse should be endured in silence.
What You Can Do
Encourage the ACLU to contact Federal Agencies that likely use this cell phone forensics tool, and seek through the FOIA process information the public needs to make informed decisions about changes in government oversight.
Discuss below whether you believe the state and federal governments can be trusted to access, use, and maintain information not necessarily related to national security, law enforcement, or intelligence.
Detailed references:
1: Copy of the forensic tool test report.
2: Popular Mechanics article on the device.
3: ACLU Letter to MSP, detailed list of information requests.
4: Emptywheel's discussion of the DOJ OLC Memo re information transfers of Grand Jury information to the President, law enforcement, and intelligence communities, per FRE 6e.