Police officers can download the contents of your mobile phone without a warrant – even if you have not been charged with any crime.
A new report by Privacy International shows that since 2012, police forces across the UK have been downloading data from the smartphones of suspects, victims and witnesses, often without obtaining permission. What’s more, they may be storing this data indefinitely, even when no charges are brought.
Go On, Tell Me The Numbers…
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The report is based on Freedom of Information requests to 47 police forces. Twenty-six forces (55 percent) confirmed that they are using mobile phone extraction technology. This follows on from a 2017 Big Brother Watch report which found that 93 percent of police forces in the UK are extracting data from digital devices.
Data is being collected not only for serious crimes, but also for low-level offences, and several police forces have indicated that they want extraction of mobile data to become the ‘default’. Police forces across the UK are extracting data from tens of thousands of mobile phones each year.
There is no clear national guidance on when forces can use this technology, how data should be stored and for how long it can be kept.
What Is Mobile Data Extraction?
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By hooking your smartphone up to an extractive device, police officers can download all of its data and contents. A report is generated, which can provide details of text messages, your location, and who you called when. It can even access third-party apps, such as WhatsApp and Facebook.
The current extraction technology means that it is not possible to isolate data within a certain type. So, if police officers want data found in texts, every single text message on a person’s phone will be extracted, not only those directly relevant to the crime under investigation. The same goes for photos.
If you’ve got access to a SIM card, you’ve got access to the whole of a person’s life.
MSAB website
Mobile phones don’t only contain data about the owner. They also have information about family, friends, and the owner’s wider network. As one supplier of forensic extraction technology, MSAB, boasts on its website, “If you’ve got access to a sim card, you’ve got access to the whole of a person’s life.”
This means that in extracting data from the phones of victims, suspects and witnesses, police forces may also be gathering data about people who are totally unconnected with the crime.
No Clear Guidance
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It is not clear what the legal basis for such intrusive search measures are. In the case of house searches, police officers must apply for and be granted a search warrant before they are able to scour someone’s property for evidence. This is not the case for mobile phone extraction.
The police can take data from your phone without your consent, without your knowledge and without a warrant.
Millie Graham Wood, Privacy International
As Millie Graham Wood, a solicitor at Privacy International, states: “You could search a person, and their entire home, and never find anywhere near as much information as you could from searching their phone. Yet the police can take data from your phone without your consent, without your knowledge and without a warrant.”
Privacy International’s report also indicates a lack of training for police officers who may be using this technology. This was also highlighted by Big Brother Watch in their 2017 report on police use of digital data.
Sensitive Data
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Given just how much information our phones carry about us, the lack of clear legal basis and lack of training is deeply concerning. What’s more, Privacy International have found that police forces do not have adequate rules for the retention of data, which means that information downloaded from mobile phones may be kept even when no charges are ever brought.
Just as concerning are the poor data management practices, which put mobile phone data at risk of a security breach. In 2017, Greater Manchester Police were fined £150,000 for losing unencrypted DVDs of interviews with victims of violent and sexual crime.
Only 3 police forces even mention encryption in the guidance that was provided in response to Privacy International’s Freedom of Information Requests. If unencrypted data gets lost, huge amounts of highly personal data could be in the public domain. It might also undermine prosecutions for serious crime.
Discriminatory Policing?
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The Lammy report, published in 2017, highlighted the racial bias in the criminal justice system. In particular, it showed that arrest rates for black, Asian and ethnic minority people are disproportionately high.
There is a danger that existing bias may be reinforced in the collection of mobile phone data. David Lammy, MP for Tottenham, notes that “there is significant risk of abuse and for conscious or unconscious bias to become a factor without independent scrutiny and in the absence of effective legal safeguards”. Replication of systemic bias by predictive policing software has already been found by a US study.
The Right To Privacy
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Article 8 of the Human Rights Act protects our right to privacy. However, this right is not absolute – it must be balanced against other rights, such as freedom of expression, and other needs that society has, including security and investigating crime. And, certainly, data extraction technology, is said to be important in tackling crime.
However, the issue is not so much that police are able to extract data from mobile phones. Rather, it is that there is no clear guidance, legal or otherwise, over when this should be allowed, and for how long data should be kept.
Police are now downloading digital data to investigate low-level crime, so more and more personal information is stored by police forces, often unencrypted. They are able to access and search this data without a warrant.
Urgent Change Is Needed
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Privacy International says it’s time for an urgent review of digital data extraction. Warrants should be required before police are able able to search the phones of victims, witness and suspects and there should be an objectively verifiable legal standard before a warrant is granted; Privacy International suggests that the test should be based on reasonable suspicion. And people should be informed of their rights in this area through published guidance from the Home Office.
One former chief constable has claimed that obtaining a warrant in each instance would be “just not practical”. However, the alternative, where police forces can extract the contents of our phone in minutes, with no legal checks and balances, looks an awful lot worse.
