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

By: Lee Raulin

Lee Raulin — Tue, 24 Jul 2012 17:52:00 +0000

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.

By: Carl Nyberg

Carl Nyberg — Tue, 24 Jul 2012 17:50:00 +0000

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?

By: Highlander

Highlander — Tue, 24 Jul 2012 02:11:00 +0000

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?

By: Tdh Orlando

Tdh Orlando — Tue, 24 Jul 2012 00:31:00 +0000

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 .

By: Lara Haehle

Lara Haehle — Mon, 23 Jul 2012 17:04:00 +0000

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.

By: Sparrow

Sparrow — Sat, 21 Jul 2012 05:35:00 +0000

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.

By: Tyler Hibbard

Tyler Hibbard — Sat, 21 Jul 2012 03:55:00 +0000

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.

By: Jim Strathmeyer

Jim Strathmeyer — Sat, 21 Jul 2012 01:46:00 +0000

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.

By: millcityrep

millcityrep — Fri, 20 Jul 2012 22:42:00 +0000

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.

By: Les Zouazo

Les Zouazo — Fri, 20 Jul 2012 22:35:00 +0000

“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.

By: anonymouse208

anonymouse208 — Fri, 20 Jul 2012 22:10:00 +0000

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.

By: Chris McGrath

Chris McGrath — Fri, 20 Jul 2012 21:23:00 +0000

you can remote secure wipe an iPhone and i assumed you could do this with android as well

By: Dana Shetterly

Dana Shetterly — Fri, 20 Jul 2012 20:45:00 +0000

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.

By: Dana Shetterly

Dana Shetterly — Fri, 20 Jul 2012 20:40:00 +0000

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.

By: James E. Darling

James E. Darling — Fri, 20 Jul 2012 20:40:00 +0000

ah, thanks for the clarification.

By: Chris Knowles

Chris Knowles — Fri, 20 Jul 2012 19:20:00 +0000

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.

By: Mark Pitcavage

Mark Pitcavage — Fri, 20 Jul 2012 19:20:00 +0000

I don’t think you know what entrapment means.

By: Chris Knowles

Chris Knowles — Fri, 20 Jul 2012 19:18:00 +0000

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

By: Chris Knowles

Chris Knowles — Fri, 20 Jul 2012 19:17:00 +0000

A honey pot would be nice but I want mine to start strobing and screaming.

By: Erik Henderson

Erik Henderson — Fri, 20 Jul 2012 19:06:00 +0000

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.

By: Tripemonkey

Tripemonkey — Fri, 20 Jul 2012 18:57:00 +0000

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.

By: neilk

neilk — Fri, 20 Jul 2012 18:23:00 +0000

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.

By: jonathanfrederickson

jonathanfrederickson — Fri, 20 Jul 2012 18:22:00 +0000

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.

By: neilk

neilk — Fri, 20 Jul 2012 18:21:00 +0000

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

By: neilk

neilk — Fri, 20 Jul 2012 18:20:00 +0000

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

By: Butters619

Butters619 — Fri, 20 Jul 2012 17:53:00 +0000

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).

By: Randy Fisher

Randy Fisher — Fri, 20 Jul 2012 17:45:00 +0000

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

By: Adriano Augusto Carneiro

Adriano Augusto Carneiro — Fri, 20 Jul 2012 17:41:00 +0000

a loophole in the loophole!

By: James E. Darling

James E. Darling — Fri, 20 Jul 2012 17:04:00 +0000

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.

By: Butters619

Butters619 — Fri, 20 Jul 2012 15:55:00 +0000

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