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

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

  1. Ryan Thomas says:

    Lock your phone. Cory has links to how. 

    • fuzzyfuzzyfungus says:

      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 says:

        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.

      • Mantissa128 says:

        Nah. We need a built-in taser option for when you enter the code three times wrong in a row.

      • Butters619 says:

        You would be charged with tampering with or concealing evidence unfortunately.

        • Randy Fisher says:

           No you wouldn’t if you had such a app on the phone before it was seized. Doing it after would be tampering.

          • Butters619 says:

            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 says:

             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 says:

          What if the phone had a deadman switch- it erases itself every 20min unless you specifically prevent it.

      • anonymouse208 says:

        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 says:

          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.

      • Lee Raulin says:

         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 says:

       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 says:

        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.

  2. chellberty says:

    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/

  3. 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.

    • neilk says:

       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.

  4. austinhamman says:

    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 says:

      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 says:

         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 says:

           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 says:

       Hold on a damn minute… how does “not being sure” preclude a “reasonable expectation”?

      • AirPillo says:

        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.

  5. Stephen Dennis says:

    Couldn’t they just skip the whole seizing the phone thing and just ‘ask’ the carrier for a virtual screen on your phone.

  6. Thad Boyd says:

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

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

  7. brerrabbit23 says:

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

    …really?

  8. Justin F says:

    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.

  9. Nimdae says:

     “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.

  10. Sagodjur says:

    “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.

  11. 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.

  12. Marko Raos says:

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

  13. corydodt says:

    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?

  14. vrplumber says:

    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 says:

      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.

  15. Daemonworks says:

    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. 

  16. Paul Boudreaux says:

    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 says:

      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.

  17. 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.

  18. noah django says:

    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 says:

      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…

  19. lumpygravy2 says:

    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.

  20. deejayqueue says:

    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. 

  21. 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.

    • neilk says:

       This decision was based on Washington wiretap law, not the 4th Amendment. It was not a Federal court as Cory wrongly reported.

    • millcityrep says:

       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.

  22. neilk says:

    This decision was by a Washington state court, not a Federal court. The case will surely be appealed to the Washington Supreme court.

  23. Tripemonkey says:

    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.

  24. I don’t think you know what entrapment means.

  25. Dana Shetterly says:

    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.

  26. Dana Shetterly says:

    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.

  27. Les Zouazo says:

    “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.

  28. 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.

  29. Sparrow says:

    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.

  30. Lara Haehle says:

    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. 

  31. Tdh Orlando says:

    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 .

  32. Highlander says:

    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?

  33. Carl Nyberg says:

    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?

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