Should Police Wipe a Criminal's Cellphone Before Returning It?–U.S. vs. Stathas | Hacker News Reader

Should Police Wipe a Criminal's Cellphone Before Returning It?–U.S. vs. Stathas

blog.ericgoldman.org

47 pointshn_acker58 comments

hmm, what did they wipe?

> [information] relevant to a possible civil lawsuit against the West Bend Police Department.”

No, the cops should not get to wipe data that could be used in court against them. Is this.... not obvious?

To be fair, it's not that simple, and having read the article you should know as much instead of painting this false argument.

What ELSE did they wipe?

>the phone was rife with “numerous sexually explicit messages and images” sent to the victim as well as “significant personally identifying information about her” is not clear error. The record reveals that these conversations occurred over multiple apps on the phone and that Stathas also received explicit photos of the minor. The court did not clearly err by crediting the government’s assertion that “no procedure short of digitally wiping” the phone would eliminate all criminal or harmful material.

So a convicted child molester used multiple phone apps to contact his victim, and instead of going into every app on the phone to see if it had child sex abuse evidence the police just wiped his phone. The court said (more or less) "that's not unreasonable: cops have better things to do than hand wipe criminals' phones of criminal evidence".

Now is there a larger question here? Sure ... but lets not pretend police clearing evidence of child sex abuse from a phone (which the convicted child sex abuser claimed contained evidence ... for a lawsuit that very likely would never happen) is as simple as "police deleting evidence of their wrongdoing".

Please don’t use quote marks around words that you are the only person using. There is nothing false about my argument.

What’s the right/better way to express the my-words-but-not-me-saying-them quotes?

It’s called mockery. In the most implausibly well intentioned case where that’s not the intention, it could be called building a strawman. There is no way to do either within HN guidelines.

Agreed, what if the cops miss something? The PR would be bad and they could be in violation of the same law they arrested the guy for.

As the courts are finally starting to take public notice of again, scale matters.

Imagine a world where housing is free, where anyone without can request a primary residence in a location of their choosing and -after twenty four hours- receive one free-of-charge that any member of today's working class would declare to be solidly of above-average quality.

In this world, would police who were tasked with destroying evidence of child molestation from the home of a convicted child molester be in error if they burned the molester's house down, rather than going through the trouble of locating just the documents, trinkets, & etc. that they were tasked with removing? [0]

I mean, what's the harm, right? The child molester can get a good house for nothing with a day's notice.

To make the analogy explicit: just because the child molester can re-use the phone doesn't make torching everything on that phone the correct thing to do. The fact that their mass destruction of that guy's property also destroyed evidence that was relevant to a civil lawsuit only makes things worse for them... maybe not legally, but definitely from a "That shit ain't right and shouldn't be happening!" standpoint.

I hope that the courts treat the relevant evidence as being deliberately destroyed, should the molester bring his civil suit.

> The court said (more or less) "that's not unreasonable: cops have better things to do than hand wipe criminals' phones of criminal evidence".

Yeah, this court is using bogus logic. If the cops don't have time for it, then they should be required to delegate to specialists. Mass destruction of one's papers and other personal effects in order to destroy a tiny slice of them is wildly out of line.

[0] The child molester lives alone, so the majority of the property in his house happens to be his... not that the torch squad bothered to check.

> they burned the molester's house down

https://ij.org/press-release/homeowners-appeal-to-u-s-suprem...

The victims weren't even accused of a crime, let alone convicted, and the police destroyed their house without compensation. They lost in court, because of the important American principle that the police can do what they like and owe nothing to the citizenry.

> But a three-judge panel disagreed, ruling that actions by law enforcement officials could never amount to a taking, no matter what...

_If_ this is an accurate summary of the ruling, that definitely doesn't agree with -say- the Third Amendment.

Do you happen to know whether the Supreme Court declined to hear the case?

I did check, and they declined to hear, so the result stands.

Ugh. That's pretty typical for this generation's Supreme Court.

That reminds me of the time -IIRC- Scalia asserted that it was A-OK for the cops to "happen" to kill a fleeing suspect by dropping a tree on his moving car, even if they expected that the falling tree would strike the car.

If I'm attributing the decision to the right guy, I'm sure he would have loved to have gotten a chance to exonerate all those ICE agents who've -collectively- gone on a murder spree here "recently".

depending on system, there should be an option to sync to an earlier image before the offenses occured, however you cant really be sure there isnt some enablement still hidden in the device so its faster and more convenient, to just wipe everything. i cant say i have a lot of sympathy, but thats what happens when you make your daily carry phone into a crime phone.

Well of course. Everyone has a pre-cp backup checkpoint that they stop updating when they start doing horrific crimes

Not in America, no - https://eji.org/issues/qualified-immunity/

We need our slave catchers and Pinkertons as immune as possible from accountability. How else will they protect the interests of capital?

My reaction from the title: "That's destruction of property, plain and simple."

After Reading the Article: "Well, given the circumstances, deserved."

Maybe don't engage/consume/manufacture CSAM and it won't be a problem.

Okay, so -- your flip answer is pretty much exactly how the law should not operate?

That's the point of law. To come up with principles that you can follow consistently, regardless of your feelings in the situation.

This is incorrect. Context and details matter in the law and we all agree that is a good thing. As an example - 1st degree murder, 2nd degree murder, and manslaughter are all different crimes even tho they’re all “killing a person” - the context matters.

Should the police wipe criminals phones? No.

Should the police wipe CSAM-adjacent data from phones to protect victims? Yes.

One is a consistent principal that is bad/cruel/overly broad. The other is a consistent principle that targets a specific harm.

We don't disagree; I'd call what you are doing refining the principles?

Any sufficiently complex set of principles is going to have situations where two principles conflict with one another. This exact situation is one of them.

I would say they should have only deleted the data that was found to be illegal, but if that data was all over the place... I find it hard to sympathize.

Ah, see that's what I thought at first.

But then I thought, no, don't delete it.

Because then you can bust them for possessing CSAM again, just about as soon as you hand it over, if you've a suitably vindictive frame of mind, and you've no reason not to.

Wouldn't that mean you're distributing CSAM?

Ah, yeah, it kind of does, doesn't it? That's a bugger.

But then you have to *retain* the CSAM as evidence anyway.

Seizing and selling or destroying property used in the commission of a crime is common. It doesn't seem unreasonable to me if the value of the property is in proportion to the severity of the crime, and the owner of the property has been convicted of the crime (i.e. it's not civil asset forfeiture).

It is common, and in this case the police were, according to the article, specifically not given permission to do so or did not seek permission to do so.

On the other hand: if you steal a pair of shoes, and the police find them back in your home, they don't get to burn down your house after your conviction.

Given how much of our lives happens on smartphones these days, willfully destroying personal data which is not in any way related to the crime seems like extrajudicial and unusual punishment to me, and not something the police should be able to do without an explicit court order.

I don't think it should be allowed without a court order. Extrajudicial punishments are bad.

I do think a court order should have been issued in this case. The offender's conduct was severe enough to earn him 15 years in prison, and the risk of continuing/future harm to the victim was substantial.

I don't think it said in the article, but I'd think that all of the data/evidence might be good to retain until all of the offender's appeals and related legal proceedings are finished.

After that, I think there's some reasonable level of effort that we should expect the government to have to make to only destroy what's illegal, but practically that might mean that other data gets destroyed as well. Maybe the owner can request specific things be saved or something like that; but it's likely to be something that needs to be considered on a case-by-case basis.

It seems to me that the correct remedy in this case would be to have a representative of the court preserve specific data requested by the offender, as long as it isn't criminal or harmful, at the offender's expense.

I don't think wiping an offender's phone is justified in most cases even if it might hinder them in potential subsequent crimes, but it does seem justified in this case where the phone contains significant material harmful to the victim of a serious crime.

I would go so far as to preserve the complete, forensically-vouched data image that the original prosecution relied on. The good, the bad, and the ugly. At the offender’s own expense, as you mention; for as long as they want to keep paying before they bring their lawsuit (or not).

If the claim is that some of the material there evidences police abuses of some sort, you can’t really let the offender pick the stuff they feel supports their claim and wipe the stuff that might weaken it.

And if there’s criminal material mixed in with the other, non-offending data that the offender claims they need, it seems like you kind of need some kind of adjudication process on an item-by-item basis.

They’ve clearly worked out a way to manage custody, access, and review for the purposes of the initial prosecution. Let the offender fund it under the same terms until they either fish or cut bait. Maybe if their claim of police abuse works out, this might be among the costs the court could award.

Is there meaningful difference between handing back a wiped phone and handing back a new phone of the same model? So in that case, why not keep the un-wiped phone in possession of the court and allow attorneys access to it (with proper documentation) - and give the convict a new phone instead?

We all know the answer to this: this would be by far the best cybersecurity practice ... but costs a relatively small amount of money.

They are contractually forbidden from letting you get their NSO spyware

It's interesting how I can be of two minds here, nearly simultaneously. Absent the horrific circumstances, my nerd brain says -- well, this is why phones should perhaps just be dumb devices that completely sync elsewhere such that physical possession is mostly meaningless. This also solves, e.g., border phone searches.

And also, yikes, don't actually want these type of horrific people doing this? It's difficult all around.

The right answer here is something like:

Usually not, but sometimes under circumstances enumerated by law. Like this case.

That raises a question I'd never thought to ask: who owns a murder weapon, after it's been confiscated and the sentence fulfilled?

Or make it simpler, is an unlicensed firearm returned after the legal process? If not, who owns it?

I assumed civil forfeiture meant they wouldn’t get returned, and probably get destroyed after some delay. I’m curious too…

I mean, when police is destroying cocaine bricks, they don't give the empty packaging back to the criminals, even though the packaging wouldn't be illegal by itself. So if you mix CSAM in your data, expect the whole device to be destroyed.

Maybe I'm ignorant of the "cocaine community", but is the packaging intended to be reused? Because I highly doubt it. A smartphone isn't intended to be disposable.

Better analogy: if you smuggle cocaine by plane, you don't get the plane back after they remove all the drugs.

Seems like the better solution is don't give a pedophila such a low sentence. Throw them in jail for decades. If you are going to release them, which I would not be in favor of, you ban them from all electronic devices. Any device that had "numerous sexually explicit messages and images" of children should be destroyed.

Problem solved.

> If you are going to release them, which I would not be in favor of, you ban them from all electronic devices.

I want to ask two questions here.

If you believe the prison system can change people and make them better, consider how you would live your current life without access to all electronic devices. Do you still think a flat out ban is reasonable?

If you don't think the prison system can bring about actual change then what do you believe the alternative is?

I think my question boils down to this.

Would you be willing to spend a portion of your salary for the rest of your working life to support a pedophile? That is exactly what would happen if they were cut off from all electronic devices or imprisoned for life.

I do not think he should ever be let out of prison. Pedophilia is a crime that I wouldn't want to risk letting prisoners out of jail if they committed such a crime.

If somebody is stupid enough to let a pedo out out of jail, I don't want him to have access to the same tools he used previously to interact with these children. This is no different than when a drunk driver loses their drivers license.

I am completely willing to accept that some people might be rehabilitated in prison, but I am not willing to take the chance with pedophilia. Certain crimes I would be more lenient with, but one of the most heinous crimes is not something I feel comfortable releasing.

I would much rather pay to keep a pedo in jail then risk any child is hurt.

> I would much rather pay to keep a pedo in jail then risk any child is hurt.

One slight problem with that argument: if the punishment for child abuse is life in prison, and the punishment for murder is also life in prison, wouldn't a child abuser have a rather strong incentive to murder their victim? After all, you can't exactly make it worse, and a dead kid isn't going to talk...

The same applies on the other side as well: if talking means that Uncle Jimmy has to rot in prison for the rest of his life, there's quite an incentive for family members to keep it quiet. "You wouldn't want to do that to Jimmy, would you - he just made a mistake and it won't happen again..."

It might feel right on an emotional level, but in practice punishments like that quickly lead to more harm to kids, not less.

There are a few issues with your argument.

1. If murdering the victim would help a pedo avoid prison then why wouldn't they just murder all of their victims today? The guy in this case already got 15 years in prison, surely he would have wanted to avoid that? I don't think a child rapist is doing some sort of calculation today saying I am not going to kill the kid because 15 years in prison is acceptable, but if I might be in jail for my entire life then I will kill the kid.

2. I don't think a 5 year old knows the difference between 15 years in prison and life in prison so I don't think it would make a difference with the current situation and what I am advocating for.

3. If some family member is trying to avoid life in prison for the uncle, then why wouldn't they also do that for 15 years?

As someone who's been a victim in a situation like this, I'm totally on the side of the cops. We need to draw lines somewhere. There's no good argument for protecting ownership of the kind of subject matter that was deleted here.

Edit: I would encourage anyone who's downvoting me to worry less about their own digital rights and spend some time thinking about what it would be like to have explicit pictures of yourself in the hands of someone who hurt you.

I see no indication that anybody is arguing that they should not have deleted the images in question, and the police argument appears to have been more about making sure that all contact information across various apps was deleted anyway. The arguments are a) does that mean all the data on the phone needed to be deleted? (Doubtful) b) does that mean that none of the data on the phone could reasonably be extracted first? (doubtful)

I could see an argument for the phone owner being able to request specific data off the phone, that the police could individually screen before returning to him and wiping the phone.

However if the ultimate goal is to make sure no CSAM or victim info is accidentally returned to the predator, the phone is ultimately going to have to be wiped. There are probably some data extraction companies that could make a pretty confident claim to have removed everything, but it'd be very difficult to verify.

I feel like this (no way to know what’s there) is the opposite to what I’d expect HN to say about being able to hide data on a phone that you’ve unlocked and handed to a cop for an unlimited period of time.

I’m pretty interested in the related questions of backups, data stored in apps that can be restored, etc, but not enough to go looking for more info on this guys phone.

Well another response from a victims perspective: life is hard. He didn't have to break the law, hurting someone in the process. He can deal with the consequences, because we sure have to.

Though I understand your argument, this is exactly the logic used to undermine people's rights. Initially, rights are only eroded for murderers or pedophiles or rapists, but it doesn't take long for it to be used against someone who tries to expose a police department's corruption. The most heinous cases are where it is most important to not set bad precedent, because those are where the seeds of abuse of power are sown.

I feel like you guys think that real justice actually exists. The guy who abducted me is behind bars right now, but there were 4 felonies that we let slide because we would have needed to go to trial and it was just my word against his. Cops see that sort of thing happen all day long, so when they see some rapist getting off easy.. of course they are going to wipe that guys phone unless there's a clear reason not to. I frankly don't see the problem.

Nothing you've said is incorrect, but at the same time, the choice comes down to either limiting the power of cops or expanding it. I'd rather limit it, it's an endless cat and mouse game and if you give them an inch, they'll take a mile every time. Giving them the inch because justice isn't real anyway isn't going to make anything better.

I disagree. What should have been a 20 year sentence for my attacker turned into a 5 year sentence. I'm thankful that the judge threw everything else they possibly could (like 30 years of parole). Having personal experience with police, I truly believe that they are (in most cases) just doing whatever they can to make things right. What makes you think otherwise?

My father was a lawyer, so I got a lot of stories from him where cops did a lot of slimy stuff because they could get away with it or because they were allowed to do it by the letter of the law.

Do you have an example? By the way, I've heard a lot of people badmouth lawyers too.. I feel like that sort of character analysis is not always as accurate as you might think.

One example I can think of is that there was a car accident involving some cop cars, and when discovery came around, they gave certain pieces of evidence to my father's client, certain evidence to the third guy, and my father's client settled, and he talked to the lawyer for the other client and gave him the rest of the evidence. They're supposed to give all the evidence to everyone, not only give the evidence that won't help that person, and that's exactly what they did.

Sounds like the kind of thing that could have just been an accident and your father assumed that it was intentional. Organizations aren't perfect, for example the police lost photos they took of my face after my attack.. I could have made assumptions about that, but it was probably just an accident.

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