Data protection from police takes hit in Supreme Court

By: - July 2, 2021 6:04 pm
Protesters confronting riot-clad officers who are blocking the freeway on the first day. (Photo | Isiah Holmes)

Protesters confronting riot-clad officers who are blocking the freeway on the first day. (Photo | Isiah Holmes)

A recent Wisconsin Supreme Court ruling will have implications for how police are able to use and share people’s cell phone data. The case revolved around a man whose cell phone data had been downloaded by the Green Bay Police Department. The man, George Burch, gave police consent to look at text messages on his phone. However, once he’d been cleared and the case closed, the police retained the data and shared it without a warrant to the Brown County Sheriff’s Office. Using that data, the sheriff’s office was later able to charge Burch in an unrelated murder investigation.

On Tuesday, the Wisconsin Supreme Court upheld Burch’s conviction based on the evidence gleaned from his cell phone. The American Civil Liberties Union (ACLU) of Wisconsin and other organizations objected to what they saw as a breach of privacy with far-reaching implications.

“While George Burch, who was investigated for possible involvement in a crime, gave the Green Bay Police consent to collect his text messages, he did not consent to a different agency, the Brown County Sheriff’s department, later rummaging through the entire downloaded contents of his phone without a warrant looking for evidence of a different crime.” ACLU of Wisconsin Legal Director Larry Dupuis said in a statement.

Dupuis added that, “at least four justices acknowledged Brown County’s second search without a warrant and beyond the scope of Burch’s consent violated the Fourth Amendment’s protection against unreasonable searches. The Supreme Court nonetheless allowed evidence obtained in this unconstitutional search to be used in Mr. Burch’s trial. The fact that the highest court in the state seems willing to sidestep the constitution and permit illegally obtained evidence to be heard in a trial is disappointing and troubling.”

In a document outlining its decision, the Supreme Court chose to disregard whether Burch’s data had been unlawfully analyzed. It wrote that, “regardless of whether the data was unlawfully obtained or accessed, we concluded suppression of the data is not warranted under the exclusionary rule.” The “exclusionary rule” is a “common judicial remedy” when there’s been an unlawful search.

Designed to “compel respect for the Fourth Amendment’s Constitutional guarantee,” the doctrine’s purpose is to discourage Fourth Amendment violations. However, in Burch’s case, the court found that the data couldn’t be suppressed under that rule. “Even if the police department’s initial download or retention gave cause for concern, it’s not clear what behavior by the Sheriff’s Office Burch would have this court seek to deter. Based on the arguments presented, Burch has given us no reason to deter law enforcement reliance on the computer records of other law enforcement agencies.”

Nevertheless, the court still acknowledged the vast amounts of data stored within modern smartphones would ”generally” require a warrant. Dupuis noted that, “law enforcement agencies in the future should be on notice from this decision that if they want to access data seized in a separate investigation, at the very least they need a warrant.”

Jennifer Granick, a senior staff attorney for the ACLU’s Speech Privacy & Technology Project echoed those concerns. “The Fourth Amendment can and must effectively limit searches and seizures in the digital age. As the U.S. Supreme Court has noted, ‘modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans, “the privacies of life.” Indeed, a ‘cell phone search would typically expose to the government far more than the most exhaustive search of a house.’”

She added that, “the government should not take advantage of its investigatory powers to build permanent digital dossiers just in case. To retain this information is a moral hazard, putting privacy and other civil rights and civil liberties at risk of an all-seeing government eye.”


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Isiah Holmes
Isiah Holmes

Isiah Holmes is a journalist and videographer, and a lifelong resident of Milwaukee, Wisconsin. Holmes' video work dates back to his high school days at Wauwatosa East High, when he made a documentary about the local police department. Since then, his writing has been featured in Urban Milwaukee, Isthmus, Milwaukee Stories, Milwaukee Neighborhood News Services, Pontiac Tribune, the Progressive Magazine, Al Jazeera, and other outlets. He was also featured in the 2018 documentary The Chase Key, and was the recipient of the Sierra Club Great Waters Group 2021 Environmental Hero of the Year award. The Wisconsin Freedom of Information Council also awarded Holmes its 2021-2022 Media Openness Award for using the open records laws for investigative journalism. Holmes was also a finalist in the 2021 Milwaukee Press Club Excellence in Journalism Awards alongside the rest of the Wisconsin Examiner's staff. The Silver, or second place, award for Best Online Coverage of News was awarded to Holmes and his colleague Henry Redman for an investigative series into how police responded to the civil unrest and protests in Kenosha during 2020. Holmes was also awarded the Press Club's Silver (second-place) award for Public Service Journalism for articles focusing on police surveillance in Wisconsin.