It’s legal: cops seize cell phone, impersonate owner | Hacker News Reader

It’s legal: cops seize cell phone, impersonate owner

arstechnica.com

16 pointsevo_923 comments

The key point here is that the police can lie to you. They can tell you they have evidence that you did it, they can tell you that your buddy is blaming you, they can answer your phone while they're in your house and pretend they're you, and so on. The police are not obligated under any kind of ethical rule to tell you the truth. Deception is fine.

Of course, if you like to a federal agent, it's a felony. That includes everybody from tax collectors to folks from the Farm Bureau. If you lie to state or local policemen, they can use that against you as evidence that you were trying to be evasive. This is true even if you accidentally omit something or just get confused. It's all free ammo for them to use.

This is why the only thing to do when questioned by the police is shut up and ask for a lawyer. Even if you are innocent and have nothing to hide[1]

[1] Admittedly this is very difficult to do in situations where you are completely innocent and a life is on the line, for example if the cops are looking for a missing person. Personally I try to help all I can. But from what I understand you are gambling here that the police will intuitively grok you as a "good guy". If their perceptions change, even in error, informally cooperating is a fool's game and you could get screwed royally.

There's a difference between being questioned and police just asking for help.

Being questioned = they are asking about what you did

Asking for help = they are asking about what someone else did

If you are being questioned, you can and should demand a lawyer even if you have nothing to hide because at this point you are already a person of interest in their investigation.

If they are merely asking for help...just don't be stupid answering their questions. The police aren't there for you.

Pretty sure they were doing this far before smartphones or even cellphones - it was done with pagers and even home phones before that.

Think about it, they don't even need your phone.

All they have to do is find out the number and all the carriers have gateways for law enforcement without warrants to examine everything sent/received and locations.

Then they can route the number anywhere and impersonate you.

BTW I am 100% okay with this if a person was CONVICTED in a court of law or they go before a judge and can prove someone is in mortal danger (child, etc.)

The biggest problem is they can now pull you over for a ticket and clone your phone without challenge. That's not right.

So it's legal for cops to seize your residence, confiscate your postal mail, open it, and write replies impersonating you to whomever they want?

How is this any different? Because there's an electronic device involved?

Even more similarly, what is the law on answering machines? Can someone leaving a message on an answering machine be subjected to a similar interception and impersonation without a warrant?

What about emails? Can emails be faked without a warrant?

1) Not quite. A person leaving a message on a suspect's answering machine can be called back without a warrant for them (as the original warrant/search would still be valid on the original suspect). But a separate warrant would be required to intercept (EDIT: removed impersonate) that caller. EDIT: They can impersonate a person without a warrant.

2) Yes. Emails cannot be searched without a warrant, but police can fake emails without a warrant. However, if they attempt to entrap another person by faking emails, they run into the classic entrapment defense. Furthermore, if they cause harm to a person's reputation, etc., through the impersonation, they are usually liable for crazy damages.

> However, if they attempt to entrap another person by faking emails, they run into the classic entrapment defense.

So they can do it with a cell phone (in the article), but not an email?

No, they run into the entrapment issue either way. But it's easier to show entrapment with email because the fake emails are recorded.

With a phone call, it is not necessarily a given that the call was recorded (as the police may not have had proper gear set up), so it usually becomes a he-said-cop-said problem. Cops usually choose not to record calls unless they need to, because for evidentiary reasons (for the prosecution) it is better to make the dispute one of credibility.

In the article it's made very clear they entrapped multiple people by faking text messages, that didn't seem to be a problem.

Journalists do not understand the law very well...

In this case, the police hit up a bunch of people they suspected of being the dealer's customers and asked them if they wanted to buy more drugs. The callees who were arrested agreed to buy more drugs without persuasion. That's not entrapment.

Left out of the article, because they were not relevant to the opinion, is those people the police texted who chose not to buy drugs from the dealer being impersonated.

> The callees who were arrested agreed to buy more drugs without persuasion. That's not entrapment.

It seems I'm confused about what constitutes entrapment.

If an officer walks up to me on the street and offers to sell me drugs, is that entrapment? (I see that as exactly the same as sending a text message, or email)

Entrapment is a hard defense though. The burden shifts to the defendant to show that he/she was not willing to commit the crime.

For example:

  Cop: Hey, want to buy drugs?
  Defendant: Sure!"

Not entrapment.

Contrariwise:

  Cop: Hey want to buy drugs?
  Defendant: No way!
  Cop: Come on, you could make lots of money reselling it
  Defendant: It's not worth it man
  Cop: I know it's risky, but you could send your son to college!
  Defendant: I guess... okay

Maybe entrapment

I think people have a much closer connection to electronic devices. We arbitrarily say that police can't force me to say something, so where do we draw the line? Can they fake my voice in a recording? Can they use a clone? As brain-computer interfaces become more feasible, this will be a less theoretical concern.

There's an interesting overlap with encryption laws, also. If the authorities can force me to decrypt encrypted material, can they also force me to cryptographically sign material? What if unlocking my device implicitly signs my communications?

If the cops have a warrant for your postal mail, then yes they can do that, even if they have no warrant involving those you are communicating with.

I don't know the answer to the first question you ask, but state law seems to indicate that yes, electronic devices -- at least when used for illegal drug sales -- are special:

RCW 9.73.200: "conversations regarding illegal drug operations should be intercepted, transmitted, and recorded in certain circumstances without prior judicial approval in order to protect the life and safety of law enforcement personnel and to enhance prosecution of drug offenses, and that that interception and transmission can be done without violating the constitutional guarantees of privacy".

[1]: http://apps.leg.wa.gov/rcw/default.aspx?cite=9.73.200

I think the article addressed this, the claim being that there is no "long established expectation of privacy" in text messages, unlike postal mail and voice telephone calls. Thus warrant required to search/wiretap the latter, not the former.

*"...he can't be sure that the pager will be in the hands of its owner ... But after their arrival, Hinton's text messages on Lee's iPhone were no longer private"

I wonder if this argument still applies if you have a lock code on your phone. Yes, my phone may have been stolen or lost or left on a desk, but if no one can get into it then it's not public. Could an officer request you unlock your phone and then argue that the contents of your phone are not private?

This is why you should just lock your iPhone with a passcode. Not that I'm rooting for the dealer, but in no way whatsoever am I (Me not some court) going to let a Gov PD have access to my technological data without a fight. Lock it down and remote wipe later, play where's the data.

They contacted people to see if they "needed more" ? So the cops initiated it?

Can someone (qualified) describe how that is not entrapment?

Entrapment isn't a complicated concept. This isn't entrapment because the defendant wasn't coerced into committing a crime; he was willing to commit the crime anyway. It's not illegal for an officer to ask you to commit a crime, it's only illegal if they give you no choice but to commit that crime.

en.wikipedia.org/wiki/Entrapment

This is a court decision by a low level court which applies only to a single county in the state of Washington. Assuming it survives appeal, it would, at most, apply to the state of Washington.

The distinction here (at least the one discussed in the opinion) is that the court found that texts were an active communication method, i.e., like talking on the phone, not one of the traditional protected methods such as postal mail. (I do not agree with this distinction, but this is what the court reasoned.)

> Assuming it survives appeal, it would, at most, apply to the state of Washington.

That's not completely true. A decision at a state's highest court may not be legally binding elsewhere, but it can have precedential weight in other jurisdictions where similar laws have not yet been tested. A single case in a single state could well determine the course of law throughout the country.

Precedential weight has value only if there is absolutely no in-state jurisprudence on the issue. However, texts are easily analogized to other forms of communication (and indeed, that is what this judge did). Consequently, the state's jurisprudence on such other forms of communication will trump what little precedential weight this case could have.

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