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The Police and Your Phone: Invasion of Privacy by Police

Sure, people who are being investigated by law enforcement for committing crimes, as they are defined by state or federal law, need to know about their privacy rights — constitutionally protected privacy rights — and where the line is drawn between them and the police during that investigation.

When is a search warrant required before a police officer can search your glove compartment or the trunk of your car? When can the police go inside your home and search through all your things?

These are important things that every citizen should know — and not just from what they see on their favorite TV show. Television shows and movies are a very bad source of information on what police can and cannot do insofar as a citizen’s privacy rights.

Every person living in Dallas and North Texas, much less the rest of the state and the country, should understand their basic constitutional right to privacy (and against unreasonable searches) and when the police are allowed to cross that line. Because law enforcement is crossing that line without anyone knowing about it, and that’s not right.

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1. The Police Can Listen To (and Record) Conversations In Jail or Prison: Do Not Expect Privacy Here!

If you are arrested and setting in jail, or if you are visiting someone who’s been put behind bars, then you should understand that your chats are NOT protected by privacy laws. Inmate phone calls and visitations to see people who have been locked up in the local county jail, much less the regional federal prison, are not subject to the privacy laws that exist outside those institutional walls.

Visitors and inmates should assume that their conversations are not only being eavesdropped upon by jail or prison personnel, they are probably being recorded. (Obviously true in video visits.) It is amazing for many criminal defense lawyers to find that time and time again, people do not understand this. It’s playing into the prosecutor’s hands – and it’s a difficult thing to defend against, when the inmate’s own voice is played back in a recorded conversation discussing incriminating things.

Of course, inmate conversations with their defense lawyers are NOT supposed to be recorded in jails or prisons. The attorney-client privilege applies here, and these conversations are protected as private.

Surprise, surprise: lawyer and client communications have still been overheard and even recorded here in Texas, as well as in other states. Example: there’s a big lawsuit that was filed earlier this year against a Dallas contractor and Travis County (that’s Austin) — seems that lawyer chats with Travis County inmates may have been routinely recorded since 2012.

Lesson here: NEVER say anything in a jail or prison that you don’t want to hear played to a jury in a criminal courtroom.

Privacy rights inside a jailhouse or a prison facility? It kinda makes sense that you should be looking over your shoulder there, right? Well, how about in your house, in your car on the way to or from the grocery store, or anywhere you’re carrying your phone? You think your privacy is protected there? Think again. It’s not that much different these days from visiting an inmate.

2. New DOJ Policy: Now Federal Agents to Get Search Warrants for Stingrays (Sometimes) — Lotsa Holes Here.

We’ve posted about Stingrays before; these are devices where a gizmo called a “stingray” is used to mimic a cell phone tower. The gizmo reveals the location of people who are using their phones in a certain area around that gizmo. It does not target any specific phone, it grabs the information about everyone within range. It collects information inside of homes as well as out in the neighborhood and on the freeway.

If you or your grandma uses their phone in the range of a stingray, then your privacy as well as your grandma’s privacy is violated – and you won’t know it’s happening.

This is a bigger deal than many may think: if you use your phone a lot, or have it with you at all times, then collecting this information via a stingray can pretty much reveal your “lifestyle patterns” like where you go, where you shop, what roads you drive, who you visit, where you worship, etc. For details on how intrusive this can be, read the amicus brief filed by AT&T in a stingray-related appeal here.

This month, the Department of Justice announced that it has a new policy for federal agents (including the FBI) to use in their federal investigations. They are to get a search warrant before using stingrays. Moreover, in getting that search warrant they are to explain to the judge that they want specifically want to use a stingray, and not just any surveillance gizmo.

Thing is, this isn’t a federal court order or a federal law that is requiring this change in practice for federal agents. It’s an internal policy within the Justice Department. Who’s going to check to make sure it’s being followed? Plus, there’s a big fat loophole in the policy — for “exceptional circumstances” — where the policy of getting a search warrant won’t apply.

Also, in the numerous joint efforts between federal and state and local law enforcement, who’s to say that the federal agents won’t just tip their hat to their joint task force brethren who may not have any constraints on them from using stingrays? If the local cops can use the stingray, then why not let them go right on ahead?

Read the ACLU’s response to this new policy statement here.

3. Getting Around Stingrays With Other Devices: Sniffers like Jugular and Wolfhound

Here’s another big problem with Stingrays: these are far from the only devices out on the market where police can monitor phones. In fact, there are newer gizmos on the market that not only do the same job, they’re smaller devices and come with a much cheaper price tag. Stingrays can cost in the six figures; these things can cost a little over a thousand bucks.

And lower costs mean greater temptations for small police departments and county sheriff’s offices to scarf them up.

They’re called various names, like “Jugular” and “Wolfhound.” These “sniffers” are small, you can hold them in your hand or attach them to your belt. They aren’t as powerful, using 4G they canvas a range of around 1 mile which is much less than a Stingray. However, they are just as invasive privacy-wise as they gather all phone information within that radius – and no one knows they are being used.

Check out Wolfhound’s details and its comparison sheet to other products like PocketHound, TransitHound, and WatchHound, here. Here’s how Wolfhound explains how it works:

… a precision, handheld, wireless sniffer specifically tuned to the RF signature of common cell phones (both U.S. & international bands) including LTE, AWS, PCS, CDMA / WCDMA (UMTS), GSM, EGSM Cellular bands as well as GPS trackers and even U.S. DECT 6.0 cordless phones that cause interference with European cellular carriers. Wolfhound™-PRO’s award-winning*, high speed scanning receiver utilizes a multi-band DF (Direction Finding) antenna system allowing security personnel to locate nearby cell phones in either standby mode* or during active voice, text or data RF transmissions making it the perfect TSCM tool for enforcing your NO WIRELESS security policy. Wolfhound-PRO’s simple trackball/pushbutton operation and ultra-bright OLED screen make it easy to use for both trained and untrained security personnel. In addition, Wolfhound-PRO™ identifies each cellphone by frequency allowing for detection and listing of multiple cellphones. This can prove useful in situations in involving a variety of cellphone use such as large prisons and even disaster zones involving search and rescue operations. Wolfhound-PRO has up to 150 foot radius for cell phone detection (indoors) and up to 1 mile outdoors (line-of-sight) making it the most sensitive cell phone detector on the market. Wolfhound-PRO™is designed and manufactured in the U.S.A.

It’s not at all clear whether or not a search warrant is being requested by law enforcement before they use them; they’ll argue there is no legal requirement to do so. One reason: these sniffers use radio waves that come from a phone as it communicates with a cell tower and that’s different than a Stingray, which mimics a tower and collects route data from the phone.

According to a Wall Street Journal report, the Justice Department has been buying up these “sniffers” as well as Stingrays since 2010 — and the federal government appears to be the biggest buyer of sniffers in the country, according to their story. There’s also stories of smaller departments in states across the country buying these things, hiding the purchases in their budgets as “recreational” expenses and such.

See, “Police Snap Up Cheap Cellphone Trackers: More local law-enforcement agencies use ‘Jugulars’ and ‘Wolfhounds,’ partly because they might not require court orders“ published in the Wall Street Journal on August 19, 2015.

The problem(s) here?

Well, there’s the privacy invasion of the public again. You have a right to privacy in your home from unreasonable searches. Of course. You have a right to privacy for your phone’s contents as well as using that phone.  Getting caught up in information gathered in police investigations is an invasion of those privacy rights, especially inside your home.

And then there’s the fact that police and federal agents appear to be using these devices secretly. (It took a brave federal judge in South Texas to shine a light on how these things were being used by the federal agencies (read our post for details).) 

Finally, criminal defense lawyers have to assume that these things may be used during investigations and that information is not being shared with defendants.

It’s also not being shared with you.

For more information, read “PROTECTING THE PRIVACY OF CRIMINAL DEFENSE LAWYER – CLIENT COMMUNICATIONS,” visit our web resources page and see Michael Lowe’s Case Results.

 


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