It’s always interesting to see when tools with questionable indisputability are used to hold the Shoulda Just Complied classes to account for their own actions when they suspect they might be swept up into a criminal investigation. And it’s instructional to observe how current and former LE navigate their personal, off duty civil rights; defensible things like seeking and paying for legal advice, declining to participate in pseudoscience criminalistics like polygraphs, getting ahead of quashable preservation orders, not using cloud-based digital security camera systems on their own homes when the data collected might be used to monitor their behavior or the ordinary comings and goings of neighbors and friends, deciding to create a timeline of their behavior through group consensus. The right to privacy, and confer with other witnesses, is important!
For years, organized legal defense advocates for murder and terrorism suspects, especially, have argued that cell phone and smart device analytics purporting to demonstrate detailed on- and off-phone activities down to the second are imperfect interpretations of data, including passive background activity and collection by apps, and that companies like Cellebrite that market their interpretations to security forces actively use these public-private contracts to resist exposing their in-house metrics to public scrutiny, testing, and legal dispute. The master’s tools can apparently smart when, to mix metaphors, that boomerang bounces back.
I’m assuming this will change nothing for the average citizen but I bet the local and federal peers of the Alberts and of Higgins are paying close attention and will make the necessary adjustments to protect themselves being subjected in future to these tactics we ourselves aren’t as readily able to avoid. Indeed, as
@ch_13 pointed out, Karen Read’s defense counsel couldn’t have hired an analytics company to scrutinize anyone’s device because they weren’t permitted to successfully obtain and execute preservation and search orders for any interested party in this death. Defense counsel for ordinary civilians (police and federal agents are, of course, civilians, too, but there are these kiosks, y’see) can’t mount an affirmative defense using this kind of material evidence unless a government agency sought and seized it, as it did here, nor do they get to limit access to their clients’ data — such as it is and with what qualifiers apply as to what that data really represents, warts and all — in curated screenshot form.
Again, a lot of this stuff really is disputable and always has been, but the usual caveated appeals to law n order tend to blunt the reality and significance for all of us. But this case is really something else when it comes to even simple things that we might ordinarily think are pretty low tech, like a security card swipe. Not so definitive anymore, it’s being argued. Doesn’t prove much, can’t be used to lock down a non-opaque timeline or trace a person’s steps in a secured facility, which itself has been militarized to the gills on our dime and for the greater good.
Will the rest of us get the benefit of that doubt, or will it be business as usual when the interested party is a lesser public servant, like a teacher or a welfare worker? Will a person who sanitizes the facilities in a public building endear themselves to a jury, awash for decades in the teachings of the church of our Big Tech Savior and reared to believe anything that seems science-y can’t be wrong or nuanced or non-definitive, with a butt dial argument concerning a phone they used to have, now disposed of, they admit had at least one if not two lock screen protection features enabled? Would it be in their favor if they were also on a Jameson bender or having sex at the time? Or would the commonwealth demand access to the phone itself to prove they simply couldn’t’ve been on the couch or in missionary position because their compass app or the haptics or whatever definitely, pinky swear, sez nein?
Lexus OBD metrics are coming. Who will be as skeptical about them as they (probably rightfully are) are about Life360 or search engine queries?
www.documentcloud.org
