Judge says it's OK to use your seized phone to impersonate you and entrap your friends

A federal judge has upheld the practice of police using seized phones to impersonate their owners, reading messages and sending sending entrapping replies to contacts in the phone's memory, without a warrant. The judge reasoned that constitutional privacy rights don't apply to messages if they appear on a seized device -- even if the messages originated with someone who has not been arrested or is under suspicion of any crime:

A federal appeals court held that the pager owner's Fourth Amendment rights against unreasonable search and seizure were not violated because the pager is "nothing more than a contemporary receptacle for telephone numbers," akin to an address book. The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can't be sure that the pager will be in the hands of its owner.
Judge Penoyar said that the same reasoning applies to text messages sent to an iPhone. While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police. He claimed that the same rule applied to letters and e-mail. (Police would still need to seize or search a phone or computer legally, and phones are much easier for cops to seize than computers, which generally require a warrant.)
"On his own iPhone, on his own computer, or in the process of electronic transit, Hinton's communications are shielded by our constitutions," he wrote, referring to both the state and federal constitutions. "But after their arrival, Hinton's text messages on Lee's iPhone were no longer private or deserving of constitutional protection." Penoyar rejected Roden's privacy arguments on similar grounds.

It's legal: cops seize cell phone, impersonate owner

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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http://twitter.com/RyanTylerThomas Ryan Thomas

Lock your phone. Cory has links to how.
- fuzzyfuzzyfungus
  
  Phone lock screens had better start coming with a duress code option(suggested app name ‘Angry Pigs’) that ‘unlocks’ the phone into a sanitized simulacrum…
  Otherwise you could find your face resisting arrest against the holding cell wall a number of times.
  - fight4paece
    
    I think your on to something. An Android Honey pot that can be activated with an icon or a fake alternate unlock password would be awesome.
    - http://twitter.com/Babylonian Nick Robinson
      
      There’s an episode of Sherlock where that happens!
    - Chris Knowles
      
      A honey pot would be nice but I want mine to start strobing and screaming.
  - Mantissa128
    
    Nah. We need a built-in taser option for when you enter the code three times wrong in a row.
  - Butters619
    
    You would be charged with tampering with or concealing evidence unfortunately.
    - Randy Fisher
      
      No you wouldn’t if you had such a app on the phone before it was seized. Doing it after would be tampering.
      - Butters619
        
        You are erasing data on your phone. That’s tampering or destroying evidence. If you get pulled over and while the officer is walking to the car you delete an incriminating text message, you could be changed with that. (It’s be harder to prove because the officer would have to get a warrant to get your text records from the carrier, but it could be done).
      - jonathanfrederickson
        
        Butters619: He’s not suggesting deleting everything on the phone with the passcode, only sending the user into an alternate environment without any potentially incriminating evidence. Nothing’s being deleted.
        
        Concealing evidence? Maybe.
    - Chris Knowles
      
      What if the phone had a deadman switch- it erases itself every 20min unless you specifically prevent it.
      - http://blog.chris-mcgrath.com Chris McGrath
        
        you can remote secure wipe an iPhone and i assumed you could do this with android as well
  - anonymouse208
    
    Wasn’t there a case not long ago where the judge said you can’t be compelled to give or enter your password? They can’t even prove you remember your password. I lock my phone, and unless my attorney said to, I’d enter the password for no man.
    - Jim Strathmeyer
      
      You can’t even be compelled by the law to admit that it’s you’re phone. Even if it has your full name on it. You can plead the fifth.
  - http://www.facebook.com/leeraulin Lee Raulin
    
    This can actually done on a PC using TrueCrypt…and you have total plausible deniability…it could be considered “concealing evidence”, but they’d never know you did it, much less be able to prove it. I don’t know of any currently available software that can do this on a mobile device, but in principle, it’s totally doable.
- Erik Henderson
  
  The feds so far don’t seem to be able to break the pattern screen lock. Hope that helps. Some day I hope our rights are returned to us but until then learn to use all the security features you can.
  - Chris Knowles
    
    I read somewhere that they had be copying the phones bit-for-bit regardless of a lock, and then they crack the copy after getting a warrant.
chellberty

pagesource has an extra f on the Href so it is not hyperlinked. http://arstechnica.com/tech-policy/2012/07/its-legal-cops-seize-cell-phone-impersonate-owner/
- Antinous / Moderator
  
  Fixed.
http://www.facebook.com/people/Jonathan-Vanasco/728395557 Jonathan Vanasco

Did the judge rule that both the impersonation and entrapment are legal, or just the impersonation ?

They’re two very different concepts. The excerpts you quoted seem to only address the legality of sending/receiving messages ( which i don’t agree with ) as they appear to constitutionality. I didn’t see anything that would legalize entrapping/baiting someone to commit a crime.
- http://twitter.com/nklopfen neilk
  
  The court ruled on neither of those things. The court only ruled on whether the police were allowed under Washington law to read the text message.
austinhamman

lol, this means if you lose your phone and someone picks it up they too can pretend to be you, and look through everything in your phone, since you have no reasonable expectation of privacy you have no means of recourse against this.

–edit–
also i noticed:
“The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can’t be sure that the pager will be in the hands of its owner.”
does that mean one does not have reasonable expectation of privacy for mail sent to someone’s house because he can’t be sure the letter is in the hands of its owner? or that the person still lives at that house?
- fight4paece
  
  It is illegal to open anyone’s mail other than your own. There is no such obligation with messages sent to pagers or phones.
  - austinhamman
    
    why?
    why should i have the reasonable expectation that my mail is going to the person i think it is and they havent moved but not the reasonable expectation that my sms is going to the right person and not someone that stole his phone?
    why is it illegal to open someones mail, but legal to unlock their phone?
    - ocker3
      
      I think fight4paece is simply stating facts, not offering an opinion. I agree, this is an example of creeping invasion of privacy which should be stopped by better laws.
- mistercat
  
  Hold on a damn minute… how does “not being sure” preclude a “reasonable expectation”?
  - AirPillo
    
    It shouldn’t, and I’d even be presumptuous enough to defy the judge and say that it doesn’t. The ruling begs for an appeal and should receive one. The arguments put forward to support this judge’s opinion are contrary to common sense and are completely delusional even from a purely legal standpoint.
    
    While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police. He claimed that the same rule applied to letters and e-mail
    
    He seems to be of the opinion that laws governing privacy and limits to police investigation are intended to be circumvented through legal technicalities when deemed necessary by police, which is a sincerely terrifying and incompetent belief for a judge to hold.
Stephen Dennis

Couldn’t they just skip the whole seizing the phone thing and just ‘ask’ the carrier for a virtual screen on your phone.
- Alan Olsen
  
  Don’t give them ideas.
Thad Boyd

I look forward to seeing the SCOTUS throw this one out.

The bad news is it’ll probably be 3 years before that happens.
brerrabbit23

and then they pinned the guy they lured in with “attempted possession of heroin”

…really?
http://pulse.yahoo.com/_TU5D6VMRBBBLDVJUDECJK435EU Justin F

The judge fails to notice that the phone is not like the pager: it normal for people to use phone locks, therefore my expectation of privacy is in fact, entirely reasonable. Judge Fail.
Nimdae

”Slide To Unlock” is not a lock. If this type of thing bothers you, even the simple real locking mechanisms work (ie: pattern unlock, http://mashable.com/2012/03/16/fbi-android-phone/).

Unfortunately, most people view these kinds of things as inconveniences rather than considering the security implications.
Sagodjur

“The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can’t be sure that the pager will be in the hands of its owner.”

The problem with this of course is that if the cops respond as if they were the person who was the intended recipient, then all future communications would have a reasonable expectation of privacy because the police (falsely) confirmed that the intended recipient was receiving the communications and not someone else.

I’d like to see statistics on what proportion of cell phones and pagers are not in the hands of their owners at any given time. I imagine owners do have their devices 90%+ of the time (is it too naive to say 99%?) so something like a 90% certainty that your communications will be received by the intended recipient seems to translate to a reasonable expectation that your messages are getting to where you meant them to go.
http://profile.yahoo.com/3HRTA626MJE5OLWE67MJLS4MSY Frank Grotemeier

I think same will apply to ‘officials’ (whether police, dsa, dhs, politicians etc.) phones or handhelds? Because confidential information cannot be expected to stay confidential if send to a phone, handheld, tablet, etc. …. Possibilities ack.
http://www.facebook.com/marko.raos Marko Raos

should i be “shocked” or just “resigned?”
corydodt

I know–in fact, I knew before I even clicked through to the comments thread–that someone would already have this covered, but:

someone who sends his phone number to a pager has no reasonable expectation of privacy because he can’t be sure that the pager will be in the hands of its owner

ARE YOU FUCKING KIDDING ME RIGHT NOW?
- http://marjaerwin.livejournal.com/ Marja Erwin
  
  Someone who is not a cop, judge, or member of the ruling class, has no reasonable expectation of privacy because we live in a police state run for the ruling class.
  - fight4paece
    
    Go America!
vrplumber

Haa!! I’m one step ahead of them this time.

I knew not having friends would come in handy one day, just look who is laughing now. Of course, no one is around to see me laughing, so glass half empty, I suppose.
- Antinous / Moderator
  
  In my case, they’d have to enter my home and disconnect my phone from the wall. And since there aren’t any number stored in it, I’m not sure what they would do with it.
Daemonworks

On the contrary, I fully expect somebody’s cellphone or pager to be in their possession. I may happen to be incorrect, but that really is the usual expectation.
Paul Boudreaux

Outside of constitutional arguments, aren’t the cops violating a bunch of other laws by doing this? How is this not wire fraud and illegally accessing a computer? How do they have any right to break those laws without a warrant?
- IronEdithKidd
  
  You’ve hit upon the tip of the wrongness iceburg. Decisions of this nature really cannot be put into the hands of judges who have no understanding of the technology involved.
http://darkmobius.com Andrew Molloy

Surely it should work both ways, the police cannot have any reasonable expectation of who is actually responding to their texts, i.e. not necessarily the owner of the phone.
- http://www.facebook.com/profile.php?id=500875200 Adriano Augusto Carneiro
  
  a loophole in the loophole!
noah django

I’ll go ahead and make plain what everyone ITT is dancing around–and I hope s/he is reading this–Judge Penoyar is a fucking idiot.
- fuzzyfuzzyfungus
  
  Don’t be so swift to discount the ‘evil’ hypothesis.
  
  There is some verbal dexterity to the opinion, it’s just all verbal dexterity that suggests that the judge thinks that it is his job to rationalize what the police do, rather than oversee it…
lumpygravy2

Not to worry, as teen authors agree, some spunky quirky and bright teen with almost zero resources or political connections will, in a manner of a few weeks have it all sorted out, and society will no longer be 95% of the way to complete fascist ruin.
deejayqueue

This has really scary implications for the immediate future. More and more people use smartphones to access as much of their online personas as the devices will allow. What kind of reasonable expectation of privacy do I have when I send someone an email or a message on Facebook, when almost everyone with an iPhone checks their emails and facebook accounts that way? What about other services like twitter and instagram?

It’s not just the police’s ability to impersonate a phone’s owner to SMS or phone call recipients. It’s their ability to impersonate someone in any facet of their digital life.
http://www.facebook.com/james.e.darling James E. Darling

I can’t say this ruling surprises me all that much – four important considerations based on the state of 4th Amendment law:

#1 you have no reasonable expectation of privacy in things you say to police informants or undercover police officers, no matter how much you may have trusted them.

#2 you cannot assert a violation of someone else’s reasonable expectation of privacy as a means to suppress evidence against you. In other words if cops take someone else’s property – even in violation of that person’s 4th Amendment rights – it can still be used against you if you had no reasonable expectation of privacy in it.

#3 police only need probable cause to search or seize. they don’t need probable cause merely to talk to someone.

#4 you have no expectation of privacy in information you leave with third parties. this includes your bank records and your phone records. your phone/internet records are protected by statute (ECPA) but only when police officers would use devices to surreptitiously record information you were transmitting.

Add those together and do you have a reasonable expectation of privacy in information you voluntarily sent to a third party because the police tricked you into doing so? Seems unlikely. Whether you should have additional constitutional protections is open to debate, naturally, but the judge, who is bound to follow Supreme Court precedent, probably got this one right.
- http://twitter.com/nklopfen neilk
  
  This decision was based on Washington wiretap law, not the 4th Amendment. It was not a Federal court as Cory wrongly reported.
  - http://www.facebook.com/james.e.darling James E. Darling
    
    ah, thanks for the clarification.
- millcityrep
  
  Your second point needs some clarification. There is a “Fruit of the Poisonous Tree” doctrine that states that any evidence found or discovered as a result of illegally obtained evidence is inadmissible in court. The police would have to prove that they could obtain the evidence in a legal matter in order to make it admissible. A lack of expectation of privacy does not mean that the secondary evidence was guaranteed to have been found.
http://twitter.com/nklopfen neilk

This decision was by a Washington state court, not a Federal court. The case will surely be appealed to the Washington Supreme court.
http://twitter.com/asskickerofyou Tripemonkey

I don’t know about anyone else, but I tend to send text messages to people just on the off chance that their phone is in their possession.
http://www.facebook.com/people/Mark-Pitcavage/505491431 Mark Pitcavage

I don’t think you know what entrapment means.
Dana Shetterly

Uhmmm maybe you people should actually read the article. The court DID NOT say it was “constitutional”.
“Roden argues that the detective’s interception of his text messages to a suspected drug dealer violated his rights under Washington’s privacy act, chapter 9.73 RCW. He does not raise any constitutional claims with regard to the detective’s actions. ”

He also stipulated to the facts and had zero trial. He must have had the biggest sell out lawyer in history.
Dana Shetterly

Oh ya this too. from the dissent.
“Additionally, had Roden challenged Sawyer’s search of Lee’s iPhone on constitutional grounds, I would hold that the search violated article 1, section 7 of the Washington State Constitution and the Fourth Amendment of the United States Constitution.”

This is a non story other than the guy had a bad lawyer.
http://twitter.com/Mtl4u2 Les Zouazo

“The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can’t be sure that the pager will be in the hands of its owner.”

The Court is full of it to the wazoo! Since I can NEVER be sure that any data I sent to another specific device is actually in the hands of the legitimate owner, following the Court’s reasoning, the police could decide to seize ANY device you own (probable cause be damned!) and impersonate you as they freakin’ please.

This is twisted logic a la Scalia: adapt the facts and the logic to reach a predetermined conclusion.
http://profiles.google.com/hibbard.tyler Tyler Hibbard

If the judge actually ruled that entrapment was legal, then the ruling will be reversed, since entrapment is actually disallowed by law, not up for interpretation. But I don’t think his ruling considered entrapment. Regardless, I think it will be reversed anyway, because the judge’s interpretation of what a cell phone is is flawed. Yes cell phones store numbers, but cell phone numbers are not listed… certain land lines aren’t even listed (it’s optional to remove yourself, isn’t it?), so the number is not public domain. I think if seized property is not seized with the express (court-authorized) purpose of conducting an already-planned sting, then it shouldn’t be messed with.
Sparrow

So if someone happened to acquire a phone belonging to a police officer, there would be nothing wrong with using the information it contained or impersonating the owner to someone who called it? I think the court would quickly reverse itself in that situation.
http://twitter.com/larahaehle Lara Haehle

It seems like the police could seize anyone’s phone and send messages to everyone in the contacts, let’s say, offering to sell some good weed for cheap, and then bust everyone who responds being interested? Is it just me, or does this seem a little police state/George Orwell/USSR circa 1980 to anyone else? When is the government going to start asking us to turn in our neighbors? Oh, hang on… I guess we don’t need to if they can seize anyone’s personal property for no reason and use it to entrap anyone we know.
http://twitter.com/TdhOrlando1 Tdh Orlando

The answer to this issue and all other issues of privacy encroachment by law enforcement is very simple: turnabout is fair play.

When citizens have the right to seize the cell phone of law enforcement and send incriminating entrapping messages to their contacts, then we will live in a fair and free society. I imagine this method could well take down the entire police depts. in many cities.

The same solution applies to videotaping by law enforcement. Again, turnabout is fair play. When citizens have the right to videotape law enforcement in the car and in the police station, then we will have a fair and free society.

The same solution applies to shoot-to-kill-first-and-ask-questions-later cops who kill suspects for any reason at all (basically because the cops were lazy or scared). This behavior by cops is only inviting the same approach by citizens. But again, turnabout is fair play .
Highlander

Yah. Sure. Ya batcha.
So, if they take your ID ~and~ your credit cards, why, they have the right to access your bank account and spend the money too, right? Because, what the hey, the bank account is nothing more than digits in a ‘seized device,’ right?
Carl Nyberg

I wonder how long Congress would allow this to remain legal if the FBI spoofed lobbyist cell phones and entrapped members of Congress with solicitations of bribes and other illegal transactions.

I suspect the FBI could winnow Congress by about 1/3 in 48 hours.

Also, I suspect that a whole bunch of those financial sector assholes would be easy to convict with these tactics.

You notice how we live in a society where it’s just assumed that the government will use its powers against some types and leave other unmolested?