More than 200 people have been arrested and charged with felony rioting after the inauguration protests on Friday — and now, police are looking to their phones for evidence.
According to lawyer Jeffrey Light, who represents many of the protestors, police have held on to nearly all the phones confiscated as part of the arrests. “Everybody who was arrested who had cell phones on them, the police have kept the cell phones,” Light told The Verge in an interview. “When people have asked for it back, they’ve been told it’s evidence.” According to Light, the arrestees include reporters, medics and lawyers, many of whom keep sensitive and legally privileged information on their phones.
“It’s been really hard to communicate with clients,” Light added, “because police have all the cell phones.”
A number of protestors noticed continued account activity while the phones are in police custody, as first reported by CityLab, but it’s unclear whether that account activity was the result of police searching the phones. Google’s Device Activity and Notifications page claims to list “devices that have been active on your account...or are currently signed in,” which is consistent with locked devices that are still receiving notifications. Verge testing showed that, in many cases, account activity will register without a device being unlocked.
Still, it’s not implausible that police could extract sensitive data from the phones. While police labs have been outspoken about the difficulties posed by iOS encryption, disk encryption is still optional on Android phones, allowing easy forensic searches of any phone that hasn’t opted in. Those searches would produce only data stored locally on the phone, and would not register on Google’s device activity tracker.
In 2014, the Supreme Court ruled that a warrant is required to search the contents of a cell phone.