NMA E-Newsletter #120: An Unusual Confluence of Events

Last week, as NMA supporting members began receiving the Spring issue of Driving Freedoms in the mail, a story broke that was seemingly at odds with the cover story of that issue.

While several media outlets were reporting that the Michigan State Police (MSP) were operating CelleBrite mobile forensic devices that could extract drivers’ cell phone data during routine traffic stops, our members were reading the Driving Freedoms story (“A Powerful Case by Law Enforcement for Safe and Realistic Speed Limits”) that praised the MSP for their principled stand against state speed limits set too low.

So during the span of last week, (1) our article (written several weeks earlier) commending the MSP was published, (2) the MSP were criticized for not being forthcoming about a program that had Fourth Amendment implications, and (3) we coincidentally dedicated last Tuesday’s weekly email newsletter to a story about the continued erosion of our rights against illegal search and seizure.

Those events appeared to constitute the NMA’s weird validation of the Laws of Threes — you know, the premise that related occurrences, usually bad, naturally happen in groups of three.

So what gives? Do the MSP favor drivers’ rights, as evidenced by their advocacy of the setting of proper speed limits as opposed to setting speed traps, while they are also trampling our Fourth Amendment rights by extracting personal information without warrant?

At the heart of the cell phone data extraction story are freedom of information requests by the ACLU to the MSP about the program, requests that some claim have been stonewalled. In fact, it has been reported that the MSP wanted to be reimbursed for costs of over half a million dollars to respond to the ACLU’s original records requests. Seriously?

Another aspect of the story is that while the MSP bought the CelleBrite devices in 2006, we could find no charges leveled by Michigan motorists that their cell phones were being confiscated by the MSP for warrantless data dumps.

Actually, a July 12, 2010 NMA email alert to Michigan members noted that the MSP issued the following directive to its police force regarding the state’s (then) new anti-texting law: “Officers may seek to obtain consent from an individual to examine his or her 2-way communication device; however, absent consent, officers may not lawfully seize an individual’s device and examine the contents.”

It took a few days for the MSP to officially respond to last week’s data extraction story. In a statement outlining the procedure for using the agency’s CelleBrite devices, the MSP said that police must hold a search warrant, or obtain consent from the mobile device holder first. They also noted that the data extraction devices are only used by “specialty teams on criminal cases . . . not . . . to extract citizen’s personal information during routine traffic stops.”

The Michigan State Police do deserve to be commended for their active support of speed limits based on the measured data of free-flowing traffic. However, it isn’t clear whether the last word on their mobile data extraction program has been heard.

We hope the MSP will be more responsive to FOIA requests in the future, providing a degree of transparency that will put minds at ease regarding the Fourth Amendment implications of gathering of personal information using mobile data extraction devices.

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