National Association of Attorneys General
Mobile Devices: Challenges and Opportunities for Law Enforcement
Christal Chan, Senior Public Prosecutor,Hong Kong, China; Glenn Kolomeitz, Australian Army Legal Officer (Major), Australia; Tom Ralph, Chief, Cybercrime Division, Massachusetts Attorney (General�s Office); Michael Segu, Senior Crown Prosecutor,Saskatchewan Canada; and George-Maria Tyendezwa, Assistant Chief State Counsel, Nigeria
This is the fourth and final cybercrime article in our ongoing NAAGazette series. It is the work of attorneys who participated in the June 2013 National Attorneys General Training and Research Institute (NAGTRI) International Fellows Program.
Cell phone use has become nearly universal, presenting new ways to commit old offenses, and thus poses major challenges for law enforcement.
Under a broad definition of cybercrime, cell phones, and particularly smartphones, can be used to enable almost any type of electronic crime. They are potentially rich sources of evidence. Cell phones are relatively inexpensive, powerful, small and commonly contain built-in GPS location features. The GPS component of cell phones allows for easy coordination among criminals and a large pool of potential victims, irrespective of geographic location.
Drug trafficking is an example of an old offense now frequently facilitated through the use of cell phones. The GPS feature of cell phones expedites drug sales by enabling drug purchasers to arrange meetings without ongoing communication. Some social networking applications allow for geolocation without creating an easily traceable evidence trail. Cell phones can also be used to complete the deal itself via voice or text function. Additionally, the cell phone or smartphone can be used to keep business records relating to the illegal transaction.
Sexting is a troubling new offense enabled by cell phones. Young people use their cell phones to take inappropriate pictures of themselves (sometimes meeting the legal definition of child pornography) and then share these pictures with others, naively expecting the pictures will not be passed along further. Prosecutors are often faced with difficult choices concerning how to deal with these cases. The development of guidelines and policies relating to these cases would allow for greater consistency and fairness. Any strategy for dealing with this category of offense should include an education component on the long-term consequences of sharing intimate photographs.
Cell phones can also be used to create �voyeurism pictures� of victims without their consent in situations where the victims have an expectation of privacy. Some of the other innovative ways offenders are utilizing cell phones include the following: cyber bullying, cyber harassment/stalking, the grooming of children for sexual offenses, money laundering, human trafficking and online fraud.
The rise of cell phone usage has been addressed by courts in different, and sometimes conflicting, ways around the world with respect to whether cell phones may be searched pursuant to an arrest. The entire continuum of legal approaches is represented within the countries in our working group. The continuum can be described as follows:
- In some jurisdictions, the issue has not been decided in the courts. Therefore, officers can search cell phones incident to arrest with few limitations (e.g., Hong Kong).
- In other jurisdictions, searches incident to arrest are limited to those in which there is a reasonable suspicion to believe evidence related to the crime will be found. Any evidence related to uncharged conduct discovered incident to such a search would be admissible under the plain view doctrine. There is no other inherent limitation on the permissible scope of searches incident to arrest (e.g., Nigeria).
- A different approach taken by some courts is to empower police with limited authority to search cell phones incident to arrest. As a practical matter, this limited authority permits officers to conduct a �cursory search,� which would presumably include contacts, recent calls and pictures. The allowed components of such a cursory search are not yet fully defined. A full forensic search would likely require a warrant (e.g., Canada, Massachusetts and other U.S. states).
- Subsequent to the passage of the Australian Cyber Crime Act, consent or a search warrant is required in Australia if the data is not password protected. If it is password protected, a magistrate�s order under the Act to provide reasonable assistance to police in accessing the data is required. The test is �reasonable suspicion.� The Act is groundbreaking legislation extending the intent of the Council of Europe�s Convention. The issue presently being litigated is data commingling and the possible intrusion by the State into privileged communications.
- Finally, some jurisdictions completely prohibit the search of cell phones incident to arrest (e.g., some U.S. jurisdictions such as the First Circuit).
The ability to seize and search cell phones is critical to law enforcement. Mobile phones contain a wealth of information of potentially great value to law enforcement. The scope of available evidence to be forensically obtained from cell phones depends on the type of phone and other variables. However, it is common for investigators to be able to retrieve pictures (including metadata, such as identifying where the picture was taken or what type of camera was used), videos, contact information, call information and histories, location histories, web browsing histories, app usage information, calendar information, text message information, email information documents and logs.
Mobile phone locations can be tracked by law enforcement in a variety of different ways, in real time or after the fact. Some of those methods used by law enforcement are cell tower triangulation, cell site /tower information, cell phone pinging, usage of cell phone tracking apps and search warrants of cell phones after seizure in order to forensically determine cell phone location through forensic examination.
Mobile devices provide the opportunity to track the people holding them in real time with an extraordinary degree of accuracy. Courts around the world have consistently required law enforcement to obtain warrants in order to conduct this type of tracking. Courts have determined the invasion of privacy caused by continuous, detailed GPS surveillance is different in kind, not degree, from the type of information traditionally obtained by law enforcement surveillance techniques. This investigative technique, therefore, requires judicial oversight.
In addition to enabling offenders to victimize children, cell phones can also enable children to become offenders themselves. Cyber bullying, cyber harassment, stalking, voyeurism pictures, self-produced child pornography possession and distribution, blackmail and other offenses can all be committed by children and adolescents through the use of mobile devices. Children seem to be unconcerned with the volume and type of personal information they are exposing to the world through their use of mobile technology and social networking. Consequently, offenses exploiting personal information are on the rise.
In the future, law enforcement and prosecutors around the world will need to work cooperatively and quickly to share information related to crimes committed or facilitated by the use of mobile devices. Service providers and data can be located in any country in the world. Currently, standards related to the retention of mobile device data or records have not been widely adopted. Therefore, the wealth of potential evidence cell phones provide to law enforcement can be quickly lost or destroyed. However, law enforcement, working in conjunction with their international partners, can play an important role in obtaining crucial evidence relating to modern crime.