Ethics: Cellphones and LEOs
Ethics: Cellphones and LEOs
Phones and/or mobile devices are a deeply integrated part of industrialized life. People often feel isolated when their phone dies, is lost, or is stolen. Security protocols, like Two Factor Authentication often rely on phones as the second factor. A massive amount of social interaction takes place via social media. Event planning on facebook, Snapchat messages, and instagram photo sharing - to only name three. You can find out a lot about a person based on their devices. Personal contacts, recent communications, and social media profiles that are often logged in automatically. Depending on your goals, access to these devices is incredibly valuable.
Phones as Important Evidence
The nature of the phone as a nexus of information has not escaped law enforcement organizations (LEOs). Increasingly law enforcement has pushed the boundary between being able to compel an individual to surrender access to their devices and existing laws on legal searches of persons. Phones with encryption or passwords are being confiscated at borders and airports, and not returned until they are unlocked. Criminal investigations have hinged on data retrieved from phones.
There is an individual who is being held for an indefinite period due to his refusal to allow access to a device. We offer no commentary on how or why the authorities suspect this individual of very nasty things (in this case this is not a random person.) Our focus is on the reaction from law enforcement - which is troubling.
In 2009, the Supreme Court of Canada cited
honest mistake lol #whoops #legaltweets over an illegal police search of a phone following an appeal of an armed robbery conviction.
Authorities and Access
Devices of all varieties are being targeted by law enforcement organizations as a critical trove of information that is often unsecured, or contains high value information. There seems to be a really interesting development. The method in which you authenticate your device matters.
Law enforcement may compel you to provide fingerprints or a picture, so using biometrics to lock your device is a triviality from the perspective of law enforcement. This makes sense to us, but it still surprised us a bit. We found that interesting. Biometric authentication is bad in general - don’t use it regardless of why.
In the US, passcodes or other pattern unlocks are protected under the fifth amendment. In Canada, police can search your phone without a warrant, but if you have a password it cannot be compelled.
There are very serious ethical questions surrounding how or why these organizations gain information without consent. Law enforcement organizations have asked courts to obscure the methods used to track individuals or gain critical information. This is suspected to be due to warrantless stingray activity, followed by parallel case construction. This could also be due to illegal device access through password cracking, or other software exploits. Even in the case of very bad people, we feel there is a healthy ethics conversion with respect to using software vulnerabilities to achieve otherwise “good" outcomes. No matter the means, being able to defend one’s self is a very important part of what we are led to believe are the workings of the legal process. Sealed evidence plays a concerning role in democratic society. It seems the notion of “nothing to hide, nothing to fear" falls apart when it matters the most.
The Slippery Slope
Most of these cases deal with people who face very serious accusations. Thankfully, law enforcement does not kick in random doors looking for potential criminal activity. These searches and individuals have often earned the attention they have gotten. Unfortunately even then the lines have been blurred as with the recent event of the FBI using Geek Squad contractors to exploit consumer trust in IT services and subject arbitrary devices to private (and de facto FBI) search. Breaking the law to uphold the law is a shaky foundation to stand on. We need our legal processes to work best under very bad, ugly circumstances. When we punish people, we need to be sure the process delivered the best result it could. That requires hard work from our law enforcement agencies.
Law and Society
At the end of the day, we are very thankful and grateful for the service our law enforcement organizations provide. We are in a society of laws, and we depend on the regular and sustained peace we all enjoy to properly do business within the community. When it comes to expectations of governments and law enforcement, there is a sense of ‘herd immunity’. If we can expect and get better from our hard working folks in blue at home, it puts pressure on bad actors in other parts of the world. Finally, people have fought and died so that we may lightly criticize the ethics behind the actions of our authorities in a blog post. We feel a sense of responsibility in discussing what we believe to be important topics.
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