Your phone is confiscated by the authorities. What can you do to minimize damage once it's returned to you?
So, you’ve been arrested covering an event. You’re taken to the police station, you’re booked, and your phone is confiscated. When you’re let out, after a few hours or even a few days, your phone is handed back to you in a plastic baggie; the SIM card and SD card taped to the back. Someone has definitely gone through your digital belongings.
Your digital belongings — phone, SIM, SD card data could have been copied and gone through.
Your phone may have been turned on, apps and browsers opened. The cops might have access to any accounts your phone was logged into, this means they may have read personal communication, noted your personal accounts including email addresses, social media account names to follow, sent messages or made posts using your log in.
The SIM card contains very little information in modern smartphones, but still holds your phone number and other numbers that uniquely identify it, sometimes printed on the card. Police may track the location of individuals through the location of their mobile phone and SIM card, and your unique phone and SIM combination may now be used to locate you.
The SD card contains photos and other media; could contain chat logs, and other user-generated content. Not only can this data be used to build a profile on you, but can be used to map social connections between people you frequently communicate with, and they can unjustly become "persons of interest" to investigators. Such tactics can also be used, sometimes under the flimsiest of pretexts, to justify warrants for escalated surveillance on you in the near future.
Depending on the circumstances of your arrest and the method of seizure of your mobile device, you are subject to a certain set of rights, laws, or protections. First off, know that in the U.S., it is your right to decline the warrantless search of your mobile phone. If you are arrested or taken into police custody, you should verbally state that you do not consent to a search of your devices. A law enforcement agency is only permitted to conduct a warrantless search of your device if a compelling case for an emergency can be made.
If you find that you are the victim of an unlawful search by police officials, you have various avenues for recourse.
If the authorities are using evidence obtained through an unlawful search of your mobile device against you in a criminal proceeding, you can move for that data to be suppressed under the Fourth Amendment right to freedom from incidental seizures.
If information gleaned from the warrantless and/or non-consensual search of your mobile device is not used against you in a criminal proceeding, you have the right to sue the law enforcement agency or city for damages under Section 1983 of Title 42 of the U.S. Code.
Were you arrested for recording or photographing the police? As a participant in a public event, you have the right to photograph and take video of law enforcement officers, but often documentation is taken, destroyed, or obstructed by law enforcement. If you are arrested for reporting on an event as either a credentialed or non-credentialed journalist, you may be allowed enhanced protections or alternative avenues of legal recourse. Professional journalists — as well as bloggers and livestreamers — have the right to document police activity at protests and demonstrations without undue state interference under the First Amendment right to freedom of the press.
As the old saying goes, an ounce of prevention is worth a pound of cure. Follow these simple steps to keep your phone secure, your social media accounts safe, and your property out of reach from prying eyes, for the next time. In addition to these tips here, have a look at EFF’s excellent guide for protesters; it has great tips for how you can protect yourself next time you go out there!
If you find yourself in a situation where you’re very sure your device has been compromised, the first thing you’ll want to do is to preserve evidence.
Next, it’s time to regain control of your accounts and data. Follow these steps to restore your personal data and social media accounts.
An iPhone is a great phone, if you can afford one. Recent iPhones are encrypted by default, which is hugely beneficial for security. If you are an iPhone user, beware of what you sync to iCloud, and consider only syncing directly to your computer, rather than letting the phone sync automatically to the cloud.
Android is trickier, because there are so many hardware manufacturers on the market, and each manufacturer will implement Google’s open source Android operating system in different ways. Ideally, you should invest in a phone that implements Android the way Google intended (sometimes referred to as Android One phones). The Pixel line is the best Google has to offer; it receives the latest software updates as soon as Google pushes them live, but it can be very expensive. Nokia has a less expensive lineup of Android One certified phones that also receive timely updates. Motorola’s Motorola One line provides some great options as well. Whatever you choose, be sure to buy a phone that supports encryption, and allows for granular permissions for applications. Some phones do not implement these features properly, or at all, which will put you at risk. If you’re comfortable doing so, you can still go to a brick-and-mortar store, like Best Buy, where you can play with the phones on display.
For encryption, go to Settings -> Security and make sure there’s an option to turn on encryption. That way, you know that whatever phone you buy has those capabilities in advance.
When these things happen, it’s important to know who’s got your back. Finding legal representation that understands your situation, and understands technology, is key. You and your legal team might also require assistance from digital forensics experts, or talk to digital security trainers who can help you navigate this tricky situation. Finally, self-care is hugely important. This work is extremely stressful; talking to the right people might help you recapture your courage, prevent you from doing harm to yourself and others, and help you get through the trauma.