LANSING – The Department of State Police isn’t using devices that extract information from individuals’ cell phones in an illegal manner, department officials told the House Oversight, Reform and Ethics Committee following a dust-up over whether the department is overreaching privacy laws and Fourth Amendment protections against unlawful search and seizure.
Greg Zarotney, a State Police inspector and assistant to the director, said that contrary to a popular misconception, such searches are conducted only with investigations involving child pornography and exploitation, child-predator crimes, high-level drug-trafficking, homicide investigations and other high-value crimes.
Furthermore, such searches are only conducted, Zarotney said, after a warrant has been obtained and signed by a judge or with the individual’s consent. The information obtained via a Data Extraction Device (DED) is processed primarily by the department’s computer crime unit.
The DEDs were never intended for, or used during, routine traffic stops, Zarotney said.
“We can’t do this surreptitiously,” Zarotney said. “I can’t walk up to you and get information from your cell phone without you knowing it.”
The practice of using DEDs came to light when the American Civil Liberties Union of Michigan made a Freedom of Information Act request for data indicating when and how the instruments are used. Fulfilling such a request would cost an estimated $544,680, according to Zarotney, because there is no method to distinguish crime reports in which DEDs were used from those in which they weren’t.
“They asked for a huge amount of information from what I believe was a five-year period,” Zarotney said. “To accurately comply with that request, we would have to go back and search almost all of our troopers’ reports to find out if one of these devices was used. We don’t have a form we fill out (indicating DED usage). It would have taken several people years of time to go through every police report. We would have to literally read thousands and thousands of reports.”
The State Police has not modified current crime reports to indicate such usage.
“It would be part of a police report just as if we used a camera or any other device,” Zarotney said. “The media didn’t do a real good job reporting on this in the first place. The ACLU put out a press release saying they wanted to find out whether we were misusing them. They didn’t say we were misusing them, and we haven’t been accused of misusing them in the courts or civilly.”
The department has six portable Cellebrite DEDs available to its Hometown Security Teams, specialized criminal interdiction units working in conjunction with the eight State Police districts – two districts have to share – in addition to different versions used by the computer crimes unit, and were not subjected to the ACLU’s request.
Zarotney said no one had ever asked about the DED’s since they were added to the arsenal in 2006. He also dispelled rumors that troopers could somehow use the device without a person knowing about it since it is quite bulky – about the size of handheld radar detector – and is equipped with about 100 cords used to marry up with the 10,000 different types of cell phones.
As for fears of rampant searches with DEDs, Zarotney testified the Grand Rapids-area district has used its only twice.
Zarotney didn’t know exactly how much the devices cost, but estimated they were “a couple thousand dollars apiece.” However, because the department used a federal grant, the cost to the state was zero.
Rep. Tom McMillin (R-Rochester Hills), chair of the committee, said it was important to comfort the public that DED’s are used properly, and will be in the future, even as technological advances make them smaller and easier to use.
“Some have felt that with the new texting-while-driving law, this could be probable cause: ‘Madam I saw you texting. Can I see your cell phone?'”
Zarotney said troopers and investigators have been trained in their appropriate use. “When we first got them, the training went out that you can’t used them unless you have a search warrant or consent. It’s just another tool, a high-tech tool,” he said.
Rep. Lisa Brown (D-West Bloomfield) specifically wanted to know what type of information could be extracted by a DED.
Detective Sergeant Richard Cruz testified that while it’s difficult, if not impossible, to retrieve information from some phones, police can access text messages, photographic images, video, audio or any other data that may be crime-related as specified with a warrant, or if the person gives police consent.
“Prosecutors would much rather see signed consent,” Zarotney said.
Shelli Weisberg, ACLU Michigan legislative director, said she was satisfied the department is using the devices properly, but there are still concerns.
“It’s not something they can do surreptitiously,” she said. “The ACLU’s concern was, was the search being properly conducted. I think the conversation over policy was helpful. The ACLU is really concerned with having our FOIA request fulfilled and why the information wasn’t coming. Privacy laws have not kept up with technology.”
The committee took no action.
“This is the beginning of our fact-finding,” McMillin said. “I have no presumption of anything wrong going on. As a matter of fact, I kind of wanted to get this all out there. But to my broader point, I think there was some agreement that as technology evolves, we may need to think about how to assure the public of the negative – what we’re not doing. I don’t know how possible that is, but I think we need to broach that.”
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