Category Archives: Law: Criminal Law

In State v. WALLI, 2011 WL 1775995 (Wis.App., May 11, 2011), the Wisconsin Court of Appeals, 2nd District, cites to my The Death of Privacy? article.

The case was a fairly routine-looking DUI, but the Court of Appeal decided to use it as a vehicle to settle a more general question of law:

Because the first step in this analysis requires us to review the trial court’s findings of historical facts and, in this case, those findings are based in part on a video recording of the event, this court, sua sponte, issued an order converting this appeal from a one-judge appeal to a three-judge appeal and requested the attorney general to file a supplemental brief on the appropriate standard of review. With the near ubiquitousness of squad car video cameras, surveillance cameras and traffic cameras, appellate courts will be deciding more and more cases where some of the evidence is preserved on recordings.

(footnotes omitted). Death of Privacy? got cited for the ubiquitousness point, which is fair enough, although not exactly central to the main issue the court was concerned about.

The standard of review for decisions based on recorded evidence is debatable because a reviewing court ought to be as able to review recordings as is the trial court; the same cannot be (or at least, is not) said about testimonial evidence, since the trial court sees the live witness while the reviewing court sees only the ‘cold’ written record. Traditionally Anglo-American legal systems tend to give a great deal of weight to the seeing of live witnesses by triers of fact, whether or not this in fact enhances accuracy; civil law systems, I gather, do not have the same fetish.

States differ on the appropriate standard of review in such cases, but the Wisconsin Court decided that “clearly erroneous” was indeed the test it would apply when a trial court makes an evidential determination based on a combination of testimony and recorded evidence rather then the far less deferential “de novo” standard urged by the appellant. The perhaps more interesting issue of what standard of review would apply if all the evidence were recorded is not decided in this case, at least not explicitly.

Wait a minute.

The American Civil Liberties Union of Michigan urged the Michigan State Police MSP today to release information regarding the use of portable devices which can be used to secretly extract personal information from cell phones during routine stops. For nearly three years, the ACLU has repeatedly asked for this information through dozens of Freedom of Information Act requests, but to date it has not been provided.

ACLU Seeks Records about State Police Searches of Cellphones via Pogo Was Right.

Michigan state cops — and thus presumably lots of other state and federal cops and TLAs — have a secret “portable devices that have the potential to quickly download data from cell phones without the owner of the cellphone knowing”? And they’ve had it for three years?

This has to be tinfoil stuff, right? Right?

Uh-Oh..

According to CelleBrite, the manufacturer of at least some of the devices acquired by MSP, the product can extract a wide variety of data from cellphones including contacts, text messages, deleted text messages, call history, pictures, audio and video recordings, phone details including the phone number and complete memory file dumps on some handsets.

CelleBrite touts itself online as a “maker of mobile forensics and data transfer solutions”.

Cellebrite’s mobile forensics products enable extraction and analysis of invaluable evidentiary data including deleted and hidden data for military, law enforcement, governments, and intelligence agencies across the world.

Among the goodies in their product line is the Cellebrite UFED Forensic System:

The Cellebrite UFED Forensic System is the ultimate standalone mobile forensic device, ready for use out in the field or in the lab.

The UFED system extracts vital information from 95% of all cellular phones on the market today, including smartphones and PDA devices (Palm OS, Microsoft, Blackberry, Symbian, iPhone, and Google Android). Simple to use even in the field with no PC required, the UFED can easily store hundreds of phonebooks and content items onto an SD card or USB flash drive.

Cellebrite UFED supports all known cellular device interfaces, including serial, USB, infrared, and Bluetooth. Extractions can then be brought back to the forensic lab for review and verification using the reporting/analysis tool. Cellebrite works exclusively with most major carriers worldwide including Verizon Wireless, AT&T, Sprint/Nextel, T-Mobile, Rogers Wireless – Canada, Orange France and Telstra Australia, as well as 140 others. This ensures that future devices are supported prior to retail launch.

Yikes. Does this sort of search violate the 4th Amendment? It should, but presumably the courts will treat it much like an actual search of a phone incident to a stop. Courts, such as the California Supreme Court recently, have held that such searches are allowed incident to arrest — but it doesn’t follow that a such an intrusive search would be allowed incident to a stop since there’s no way to hide a weapon in a cellphone SIM card; also not all stops are equal.