A few weeks ago I had the pleasure of hosting CryptoParty Albuquerque. If you missed the party (and it was an awesome party), be sure to check out my “what you missed” post about CryptoParty Albuquerque. As I wrote there, my co-host and I began CryptoParty Albuquerque with two back-to-back presentations to ensure that everyone participating got exposed to what we felt are the most fundamental bits of information.
My opening presentation was first and it was a gentle introduction to threats and how to defend against them. After that, I handed the mic to my co-host, who gave a brief “digital know your rights” talk. A video and a transcript of that presentation is below:
So, it’s good to encrypt your data using all the tools available, but what happens when you’re faced with police wanting to search your digital device? Well, the best tool you have then is to know your rights! And thanks to the Electronic Frontier Foundation (EFF) and their helpful guides we know what to do when the police come around asking to search your phone or computer. Tonight I’m going to be talking about what your rights are and how to act around the police, essentially giving you a brief overview of the guides the EFF has available.
With that in mind, I am not a lawyer and I am not giving you actual legal advice, I am just sharing with you what I learned from reading a bunch of stuff on the internet, because I care about these things, but it is not actual legal advice. Please use these suggestions at your own discretion.
The rights protecting your digital advice are pretty much the same that are granted to you by the fourth amendment of the constitution. You are protected against unreasonable search and seizure of your phone. With a few exceptions, you’re not obliged to let the authorities into your device, so we say the fourth amendment mostly applies.
We need to borrow a bit from maymay’s threat model from the previous presentation and figure out who we are and what we are protecting. We’re going to go over four roles in this presentation and those include:
- a person going about your day
- a protestor, activist, or someone documenting a protest or the police themselves?
- an employee at your job?
- a person crossing the border into the U.S?
Rights are different for each of these roles, and I’ll go over each in more detail.
Before I do, I want to say that if you are not a citizen of the U.S. you are still, amazingly enough, protected by the fourth and fifth amendments, but your interaction with the police may be more complicated depending on your immigration status. Unfortunately, that situation is beyond the scope of this presentation, but there are resources available to you if you are not a citizen and the police are compelling you to let them search your device. Besides the EFF, you can contact the National Lawyers Guild, and locally, Somos un Pueblo unido, a wonderful organization based in Santa Fe, and the NM chapter of the Dreamers. These will have specialized legal resources that can be made available to you as an immigrant, however, the following tips still do apply.
So the first situation is you’re just going about your day, and officer Johnson comes up to you and says “I’d like to search your phone!” What do you do? Well, you should have already encrypted your device. If you encrypt your device, it will be protected against easy access, and you have the right not give up your passphrase under any circumstances. The best protection is a full passphrase with encryption, as screen locks, like the four digits on iOS or the pattern match on Android are easily bypassed. Now, a grand jury or a judge may try to compel you to give up your passphrase and decrypt your device, but the police cannot, and if you find yourself in a situation where a judge or jury is trying to make you give up your passphrase, please call the EFF, they’ll help you out.
Now, you have an encrypted device, and Office johnson wants to search it. Well, don’t consent to a search! say “I do not consent to a search.” In fact, don’t say anything else, and say nothing about your passphrase or how you protected your device. You have the right to be silent and ask to speak to a lawyer before any questioning. Keep saying you don’t consent to a search. If the office has a warrant and they come to your home, don’t open the door, but ask them to slide the warrant underneath the door. Verify the warrant is perfect. It needs four things to be correct: Your name and address, typo-free, the scope of the warrant, meaning what they can search, a judge’s signature, and a deadline that cannot have passed. If any of these are wrong or missing, give the warrant back to them and refuse the search, telling them to come back with a valid warrant. Use that time to encrypt your device. If the warrant is valid, or if they’re conducting a warrantless search on your device without your consent, contact a lawyer if you have one, or the EFF if you don’t. Finally, be careful using biometrics like fingerprints to lock your device. Police can compel you to unlock a device with your fingerprint as these are part of your identity, and the government already has them on file. If you use a fingerprint lock, turn off your phone so the fingerprint is flushed from memory and your passphrase is needed to unlock the device.
If you’re an activist at a protest or documenting a protest or the police, these special tips may be useful to you:
You can legally film the police, anytime, in any public space. If they tell you to stop filming, say you are legally filming the police and it is constitutionally protected. Also be sure to livestream in case they don’t care about your constitutional rights, and most importantly, protect yourself over your device. In fact, consider a burner phone. These are relatively inexpensive phones that you use in protests or as an alternative to your actual personal phone. The idea is that there’s nothing important on these phones, they are single use and can be lost without personal data being sacrificed. Regardless of what kind of phone you bring to a protest, encrypt your device! This makes it harder for the police or anyone to get at whatever you were recording or communicating to your fellow activists. Finally, mass arrests are unfortunately not uncommon at protests and actions, so remember that if you are arrested, after you are released you should get your device back. If not, file a motion for it to be released, even if the police put it into forfeiture or think it holds evidence of a crime, you can still get it back.
What if you’re an employee and have a work computer? Well, in that case, don’t use your work computer for personal communications of any kind. Use it only for work. This is n’t just what your boss wants, it’s also good for you, as your employer can consent to searches of computers they give you, and furthermore, you don’t know if they’re logging your computer activity. In fact, they probably are. So, you should also encrypt your network traffic as much as possible, especially if your work computer is your only computer and you need to use it for personal reasons occasionally. And if your boss ever asks for your personal paswords, like to Facebook, for example, tell them no, even if they say it is in your contract. It’s illegal for employers to ask employees for personal passwords and any contract with such a clause is illegal. For that matter, don’t mix personal passwords and work passwords.
One last role, and it’s a special one: what if you are crossing the border into the U.S? In this case, the fourth amendment doesn’t apply. Customs and Border Patrol agents at the US borders are empowered to search and often confiscate anything entering the united states, including your digital device. So what do you do? Well, as usual, encrypt your device! and turn it off before you reach the border. Like with the police, you cannot be compelled to give up your passphrase to a device, and even though border agents can confiscate and forensically search your device, it will be difficult for them, and more private for you, if your device is protected by a strong passphrase and encryption. The EFF has even more tips about how to protect your data at the border in the border crossing guide online, so check them out. Lastly, some US states provide stronger protections against confiscation at the border, that is, the agents in these states need probable cause to confiscate your device, so try to enter the U.S. through them. These states include Arizona, shockingly, California, Oregon, Washington, Idaho, Montana, Alaska, and Hawaii. Some territories also provide these protections.. Remember, international airports count as borders.
Now, while this presentation described your rights and some suggested behaviors when dealing with the police, it does not, unfortunately, describe how the police will actually act. As we’ve seen time and again, the police wield great power, and they will not always act in accordance with your rights. So, even if you flex your rights as suggested in these presentations, the police may still illegally search, confiscate, or even destroy your phone or computer. In this case, it is best to not obstruct them, note their name and badge number if you can, stay silent, contact a lawyer or the EFF, and above all, protect yourself so you can share what happened with people who care, and we can signal boost your story.
For more complete information and advice, please visit the EFF, form which I culled much of this information. Oh, and, thanks EFF for all the great work you do. More resources on how to interact with the police is on copwatch.org, as well.
Thanks for watching and be secure out there!