Prosecutors in Washington tried to link defendants to a gang due, in part, to the Latin music on one of their phones. The defendants were accused of being involved in a gang related shooting and were ultimately convicted. Due to the allegations of gang involvement, they were sentenced to lengthy prison terms.
The Washington Supreme Court ruled that using Latin music on the phone for proof of gang connections was improper and remanded the case for a new trial (in large part due to other errors in the case). While the music was only one of many facts in the case that tied the defendant to gang activity, the broader concern is the use of evidence from cell phones.
Who would ever imagine that the music on their phone would link them to criminal activity? Does listening to Bob Marley link a person to marijuana use? Does having a note taking app mean proof of drug ledgers? Does pictures of money mean proof of money laundering?
We’ve all heard about the treasure trove of evidence that may be present in cell phones. Due to this, prosecutors and police are scouring phones to find any evidence that will help lead to a conviction. Police agencies that used to seize and search 1-2 phones a months are now seizing 1-2 phones per day. Forensic experts are overwhelmed by the number of requests to search phones.
This kind of zealous search leads to serious concerns for everyone. When law enforcement or prosecutors suspect a person of a crime, they are going to view the contents of their phone through that lens. Otherwise legitimate and innocuous data may be viewed as evidence of a crime. A popular song that may be enjoyed by anyone is now ties to gang activity.
With this new field of forensics, we must move with caution. Cell phones contain vast amounts of data - more than we may even have in our homes. When a court authorizes a search warrant for home, they do not simply allow law enforcement to look through the entire house for anything that may be relevant. Instead, the warrant must be limited in scope, spelling out the items law enforcement seeks to find. However, in the case of cell phones, most courts authorize a complete and total search of the entire phone. In a case where a photo might be relevant, law enforcement will get a warrant to search for photos, web activity, application data, GPS data, and so on. Suddenly, in a world of pocket computers, everything becomes relevant.
Frequently people say they don’t mind giving up encryption or privacy because they have nothing to hide. Imagine a world where a song on your phone is evidence of criminal activity. Now ask yourself if you still want to give up your privacy.