A Freedom of Information Act request filed with the Michigan State Police regarding the use of cell-phone data-extraction devices has prompted privacy advocates to express Fourth Amendment concerns over potential use of the equipment by law enforcement officers for illegal searches.
The FOIA request was submitted initially by the American Civil Liberties Union in 2008. According to the ACLU, the organization was attempting to retrieve documentation on the MSP’s use of the CelleBrite UFED, a DED able to download call histories, hidden and deleted phone data, geotags, and other information from cell phones. The device reportedly is able to download all information from approximately 95 percent of all cell phones in less than 90 seconds.
The MSP refused to comply with the FOIA request until the ACLU paid a $272,000 deposit. The MSP’s total charge for fulfilling the request was given as $544,680.
‘No Assumption of Wrongdoing’
According to an MSP press statement, the CelleBrite DED cannot be employed remotely and only works when the device is tethered directly to a suspect’s cell phone.
The statement also asserts: “The MSP only uses the DEDs if a search warrant is obtained or if the person possessing the mobile device gives consent. The department’s internal directive is that the DEDs only be used by MSP specialty teams on criminal cases, such as crimes against children. . . . The DEDs are not being used to extract citizens’ personal information during routine traffic stops.”
ACLU attorney Mark Fancher, however, says no assumption of wrongdoing was stated or implied by its FOIA request.
“We were attempting to ascertain merely whether the police were complying with constitutional requirements, and, in all likelihood, they are,” Fancher said. “We simply wanted to shed some light on what the Michigan State Police is using the CelleBrite to accomplish.”
To that end, Fancher says the FOIA sought “incident reports, policy procedures, guidelines, and practical applications” related to the MSP’s use of the CelleBrite. “We also asked for arrest reports when the arrest resulted from the use of a DED to find out if the State Police abided by the Constitution, as well as what happens when DEDs are actually used.”
Huge Charges Raise Suspicions
After the 2008 FOIA, the MSP and ACLU unsuccessfully sought ways to lower the $544,680 by narrowing the focus of the request. Fancher submitted another FOIA request on April 13 this year, but he says the new fees ranged from “a few hundred dollars to thousands of dollars, which is still a lot of money for a blind fishing expedition.”
Patrick Wright, senior legal analyst for the Mackinac Center for Public Policy, a Michigan-based research and educational institution, says he’s not surprised by the MSP’s hefty bill to fulfill the ACLU FOIA request. “My colleague submitted a FOIA request to the Michigan State Police in 2010 regarding their use of federal Homeland Security Grant program funds through 2009,” says Wright. “In order to fulfill her request, the police requested nearly $7 million.”
Wright contrasts the MSP’s bill with a FOIA request by the Mackinac Center that was actually fulfilled by the U.S. Department of Housing and Urban Development. “We received more than 1,000 documents, and HUD charged us nothing,” he said.
‘Honoring Fourth Amendment’
Despite the wrangling over the price of the FOIA, Fancher says the ACLU is determined to obtain information from the MSP concerning its policies and uses of the CelleBrite DED.
“Warrantless use of DEDs is strictly hypothetical at this point in time,” said Fancher. “But we want to ensure State Police troopers don’t succumb to the temptation to stop someone for questioning and ask them to surrender their phone for downloading by a DED,” he said. “We’re hopeful the Michigan State Police haven’t done anything wrong in the past and will continue to honor the Fourth Amendment in the future.”
Bruce Edward Walker ([email protected]) is managing editor of Infotech & Telecom News.
“Official Statement: Use of Cell-Phone Data Extraction Devices, Michigan State Police Press Release, April 20, 2011: http://www.michigan.gov/msp/0,1607,7-123-1586-254783–,00.html
“Freedom of Information Act Request: Cell-Phone Extraction Devices,” American Civil Liberties Union, April 13, 2011: http://heartland.org/infotech-news.org/article/29844/Freedom_of_Information_Act_Request_CellPhone_Extraction_Devices.html