Blacks may bear brunt of new police data capture technology

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The latest high-tech gadgets bring promises of convenience and efficiency, with the hopes of enhancing our lives and making our jobs easier. But sometimes they create new challenges. For example, technological advances have helped law enforcement in their fight against crime. But one device is raising concerns from civil liberties groups who claim its use during routine traffic stops violates the constitutional rights of motorists who carry cell phones. And data suggests that this could pose an even greater threat to the privacy rights of blacks and Latinos, who are more likely to be stopped by police.

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As recently reported on msnbc.com, the Michigan State Police has bought the “Universal Forensic Extraction Device”, a handheld gadget which can copy the entire content of a cell phone — including text messages, pictures, video, contacts, GPS data, contacts and history — in a matter of minutes. The extraction device, manufactured by Israel-based Cellebrite, is a truly universal device that works with 3,000 cell phone models representing 95 percent of the market. Meanwhile, the “American Civil Liberties Union (ACLU) of Michigan”:http://www.aclumich.org/ wants to know why the state police purchased the devices, and for what purpose.

Law enforcement argues that extraction devices are necessary to preserve crucial evidence for trial before criminal suspects are able to destroy it. However, the ACLU of Michigan is concerned that the police could use the handheld tool to obtain private information — without suspicion, without the consent or knowledge of the motorist, and without a search warrant.

The organization believes the extraction device violates the Fourth Amendment protection against unreasonable searches if a warrant is not issued. The ACLU filed various Freedom of Information Act (FOIA) requests concerning the use of the device by the Michigan State Police, and recently wrote a letter to the state police requesting more information. The police agency wants to charge the civil rights group more than $544,000 for providing the documents they have requested.

The ACLU of Michigan is also concerned that the police are disproportionately targeting people of color with their twenty-first century, high-tech handhelds. Studies suggest that blacks and Latinos could bear the brunt of police abuse of these extraction devices. For one, African-Americans, who are less likely to own a landline, talk and text more on cell phones than any other group.

According to a study conducted last year by Nielsen, blacks talk an average of 1331 minutes a month, over twice as much as whites (647 minutes). Latinos talk 826 minutes, and Asians 692 minutes a month. Meanwhile, blacks lead the field in texting, with 780 text messages per month. Latinos are not far behind with 767 texts, followed by 566 for whites and 384 for Asians.

Then there is the issue of racial profiling. Data provided by the state of Michigan show that the state police have a history of disproportionately conducting searches, issuing citations and giving verbal warnings to black and Latino men. Further, advocacy groups claim that racial profiling is on the rise in Southeast Michigan, arguing that since 9/11, law enforcement has increasingly targeted immigrant groups such as Arabs, Muslims and South Asians.

Similarly, racial profiling is a nationwide issue. According to Amnesty International, 32 million people in the U.S. — the equivalent of the population of Canada—have been victims of racial profiling, and 87 million are at risk of being subjected to the practice in their lifetime. Typically, while white officers target black and Latino drivers for potential drug courier activity, drugs are more often found when police officers search whites. In Los Angeles in recent years, African-Americans and Latinos faced more police stops, frisks, searches and arrests than whites, although people of color were less likely to have a weapon.
A lawsuit in Philadelphia alleges that the city’s stop-and-frisk policy amounts to racial profiling, given that 72 percent of the pedestrians stopped were African-American. In addition, the Center for Constitutional Rights has reported that racial profiling is on the rise in New York City, with the NYPD implementing a race-based stop-and-frisk policy against blacks and Latinos. And last year, Arizona enacted a strict anti-immigrant law designed to target undocumented aliens for prosecution and deportation. Critics of the legislation argue that it sanctions the racial profiling of Latinos.

Meanwhile, the issue of electronic privacy extends beyond the Michigan State Police case. Like racial profiling, it is national in scope. “New technologies are radically advancing our freedoms, but they are also enabling unparalleled invasions of privacy,” says the Electronic Frontier Foundation (EFF), a digital rights group, on its website. “Your cell phone helps you keep in touch with friends and families, but it also makes it easier for the feds to track your location.” According to EFF, the problem is not the technology, but that the law has failed to keep up with our evolving expectations of privacy.

The national ACLU has challenged a federal policy by the Department of Homeland Security (DHS) of “searching, copying and detaining travelers’ laptops, cell phones and other electronic devices at the border, even when DHS has no reason to believe a search would reveal wrongdoing.”

Currently, the U.S. Supreme Court is considering a case involving the persistent warrantless monitoring of suspects via the use of a GPS tracking device. And earlier this year, the California Supreme Court ruled that police can search the cell phone of an arrested person without a search warrant, and use the text messages and other data as evidence. Civil rights and civil liberties advocates are concerned that such a ruling opens the door to allow warrantless searches of iPads, laptops, smartphones and email.

Finally, in a brief filed with the U.S. Supreme Court in a public employee privacy case, the Electronic Privacy Information Center — a public interest research center dealing with civil liberties and privacy issues — concluded that “modern communications devices contain extensive personal information and should be entitled to privacy protection.”