Evidence on Smart/Cell Phones

[Typhon100]

I recently began going through this forum for legal advice from many senior members. BTW! My most sincere thanks for the knowledge that all of the posters have provided. I was basically reviewing my own security, looking for loopholes in my own actions. Most especially with the recent stings in San Antonio/Bexar county, Austin, etc. Fortunately! My questions seem to be common-place, but I will wager that in time this will change with LE evidence gathering.

My specific question is to my rights, search warrants for Cell Phones of hobbyists and/or providers by LE. I will try and direct this question to ShysterJohn whom seems extremely knowledgeable in this area of stings, etc. However! If anyone else has ideas or thoughts please feel free to chime in

Many providers use the two-call system for their own self-protection at the final stages of a date! One provider specifically she mentioned this of deleting anything hobby-related to avoid incriminating evidence (example, texts, record of telephone calls, etc.). A very good idea for both the client and provider! However! Anyone with any computer programming experience can retrieve deleted information, and surprisingly easily. Today we have smart phones that operate similarly as a PC.



Hypothesis: I made a date with a woman (provider) that I previously met at Snuffers, while eating a past order of cheese fries. It was love at first sight. The fries are far cheaper than the future date promises to be!

I have returned to the restaurant after receiving a PM via Google Mail. I run into the robber robot! I throw him out of line and the restaurant; due to my future hot date, and his getting in the way of another great tasting order of fries! F _ _king no good robots! The neighborhood has gone to shit lately, with their arrival!

I’m setting the date up in Snuffers, and the lady and I began texting each other with finer details for the date. Both of us are security conscious, and religiously deleting our incriminating conversations.

Unknown to either of us; it is a LE sting. I arrive at her in-call location. LE has been monitoring the home and her calls for weeks. We are both arrested, and we both invoke our rights for silence. Both of our cell phones are retrieved and retained as evidence by LE to establish prime facie for the pending case against us! Suffice to say when we were both arrested, both cell phones are within reaching, grabbing, or lunging distance, an well within our control (as on our person), Both phones will have (deleted), and two way corroboration and time frame evidence to prove to LE of deliberate intent of solicitation!

Question 1: What are our rights as to gathering of evidence against us both, to substantiate the alleged crime(s)? It is sufficient to say; that search warrants with plenty of probable cause will easily issued to LE by a judge. Judges ain't idiots either!

Question 2: Will LE use a forensic computer expert to retrieve deleted data, or am I just seeing spooks in the bushes?

Question 3: We both understand the term STFU! Do you have any specific information/advice for this particular area? As a side note; I have heard the laws have recently changed in this particular area I performed a search on ECCIE and turned up so-so defined information. A cell phone (throwaway or not!) is a recording device, and is non-starter for an argument! Throw away phones are at the scene are perfectly acceptable as evidence.

Thanks in advance for any information received

[Sensei]

Shit, is she a sleeper agent? Seems that LE would not waste those resources to "monitor" her calls without having a front page story out of it.

[Typhon100]

Originally Posted by Sensei

Shit, is she a sleeper agent? Seems that LE would not waste those resources to "monitor" her calls without having a front page story out of it.

Sensei,

I agree with you as to being "sleeper agent!" Nice touch though! LOL! That is why I added the comment of seeing spooks in the bushes.

This is costly and time consuming process. However! The recovery of information is surprisingly easy, and has specific programs for this function. I mean right down to your own hard drive in the separation of 18 separate quadrants on a single hard drive.

See this particular article: http://www.pcworld.com/article/136677/article.html . I lost a PC once, and almost 50% of my files were recovered by a nerd in school. Took him about 15 minutes. Any computer file (conversation, MS Word/Excel,PP, etc. document file is never totally deleted; until it is overwritten (sometime in the future). That is why computer programs designed for total wipe-out are designed to fill all hard disc memories, with on or off computer symbols. They overwrite all files; then and only then;are all other files wiped out! This history will follow that old PC right to the junkyard, and is still there!

An immediate deleted text is still there awaiting to be overwritten. Smart phones operate the same as a home PC still awaiting to be overwritten. My time frame I mentioned is about two hours or so. Ergo; this information is still very accessible! I'm not even a computer programmer, and can give you links out of egghead.com to do this. I'm smarter than LE? I don't think so.

This being said and the information is still there; what are my rights as to self-incrimination and seizure of evidence?

Please understand that I'm not deriding you in the least. This is a new field and it is only a matter of time before this issue raises its ugly head! Your comment about cost and a front page story are absolutely correct. However! If I come to a knife fight over my constitutional rights against self-incrimination, I always remember to bring a gun to a knife fight (e.g. knowing my rights) before I end up in the deep end of the pool!

I look at it this way....If I can do it; CIA, NSA, and right down to Libyan Intelligence do it (and attempting to not sound like a crackpot!), and they are already far, far ahead of me already! How far behind can LE be?

[Sensei]

Originally Posted by Typhon100

Sensei,

I agree with you as to being "sleeper agent!" Nice touch though! LOL! That is why I added the comment of seeing spooks in the bushes.

This is costly and time consuming process. However! The recovery of information is surprisingly easy, and has specific programs for this function. I mean right down to your own hard drive in the separation of 18 separate quadrants on a single hard drive.

See this particular article: http://www.pcworld.com/article/136677/article.html . I lost a PC once, and almost 50% of my files were recovered by a nerd in school. Took him about 15 minutes. Any computer file (conversation, MS Word/Excel,PP, etc. document file is never totally deleted; until it is overwritten (sometime in the future). That is why computer programs designed for total wipe-out are designed to fill all hard disc memories, with on or off computer symbols. They overwrite all files; then and only then;are all other files wiped out! This history will follow that old PC right to the junkyard, and is still there!

An immediate deleted text is still there awaiting to be overwritten. Smart phones operate the same as a home PC still awaiting to be overwritten. My time frame I mentioned is about two hours or so. Ergo; this information is still very accessible! I'm not even a computer programmer, and can give you links out of egghead.com to do this. I'm smarter than LE? I don't think so.

This being said and the information is still there; what are my rights as to self-incrimination and seizure of evidence?

Please understand that I'm not deriding you in the least. This is a new field and it is only a matter of time before this issue raises its ugly head! Your comment about cost and a front page story are absolutely correct. However! If I come to a knife fight over my constitutional rights against self-incrimination, I always remember to bring a gun to a knife fight (e.g. knowing my rights) before I end up in the deep end of the pool!

I look at it this way....If I can do it; CIA, NSA, and right down to Libyan Intelligence do it (and attempting to not sound like a crackpot!), and they are already far, far ahead of me already! How far behind can LE be?

The thing is it would have to be a serious thing for them to go through all the trouble of doing that. A misdemeanor charge will not garner that kind of attention. If you are seriously that worried then I suggest you look for ways to keep this info from being saved in the first place. Encrypt your hard drives with PGP or other comparable software, use encrypted sites to communicate that don't save data locally without it being encrypted. Of course they may be able to coerce you into giving up your passwords but depending on the data you are protecting then the punishment for not disclosing the password may be better then the punishment for the data they get.

Edit: forgot to link this for the read; http://arstechnica.com/tech-policy/2...ith-passwords/

[Typhon100]

Sensei,

A very knowledgeable logical response I suppose. Thanks for the hyperlink and it gives me new ideas to search from.

Why are we even discussing hard drives on PC? I began the OP discussion on easily accessed storage information on cell phones upon the event of the providers and/or my arrest. What are our rights against unreasonable search and seizure? Can seized evidence be used against us the both of us by LE in the future in a court of law?

Am I being unclear in the least? I don't mean this in a bad way. Just bringing us right back to the three questions. You haven't even come close to addressing question 1 or 3 in the least, except to single hyperlink, which you post-edited in.

I'm not really worried about my home PC. I generally don't sit down at a restaurant/bar with a laptop or my home PC, plug in and start talking to beautiful providers cm line. Is this your habit, or am I just old-fashioned? If I'm old-fashioned; please let me know so I can become attuned to the modern ways of male hobbyists.

May I request that you stay with the original questions? I already know passwords and encryption. I have been doing this for the last 15 years or so, and actually carry an encrypted satellite up link telephone. I generally leave this telephone at home when I hobby. The satellite telephone would probably be pretty hard to explain at a sting operation.

Please try to contribute something even remotely significant for legal advice in regard to the 4th amendment, or Texas Criminal Codes for the forum. All members I'm sure already know how to use a password! I believe passwords came in Computer 101 in HS, right after to save, save, and save again!

Sensei in Japanese means to lead in the path. Please try to live up to your avatar.

[Jannisary]

The fundamental mistake you made in this hypothetical situation is that you solicited her. There would be no evidence of illegal solicitation if you didn't do it. There should be no need to discuss specifics beyond time and place especially since you've met the woman before. If you do it right the only evidence they'd have is you setting a date to meet with a female acquaintance.

Whether LE can search your cell phone or not without a search warrant currently varies by where you live. It is an issue the U.S. Supreme Court will most likely be deciding in the fairly near future in order to settle it.

[Yoyoma]

From a tech geek, the answer is - it all depends. You have 2 different things going on here:

* 4th Amendment protection (Layman perspective): The issue that has been before the courts recently is whether information can be gathered from a cell phone when it is taken from a person's possession incident upon being detained and a warrant has not been obtained. Your case seems to be a little different.

http://www.policechiefmagazine.org/m...&category_ID=3

* Cell phone forensics (IT geek): It all depends on the characteristics of your particular phone and your cell phone provider's LE cooperation policy and retention policy.

- Do you know if your model of cell phone allows for txt info to be recovered.
- Most cellphone provider's won't release information without a warrant due to fear of a backlash. Then again what are their Terms of service regarding the use of cellphones.

- Are you within 100 miles of a US border? If so, 4th amendment protections for electronic possessions don't necessarily exist.

I strongly encourage you to do some research and consult a lawyer.

p.s. Encryption is your friend!

[jframe2]

To the OP - you are creating an example that has so many parameters that it is virtually impossible for any of us who have any knowledge in IT and/or legal to answer with any specificity. ( I work in both worlds).

Read more information from others, calm down and add some rationality to a situation and I think you will be able to come to a conclusion that will be acceptable to you.

PS- my grandmother taught me that when you ask a group for help, you will get all kinds of answers. One should be gracious to each person that provides an answer, whether it was up to your standards or not.

[Typhon100]

Understood all and thanks. Yoyoma and Jannisary both hit the nail on the head, and the issue is still up for review. I will specifically look for this case. Thanks for the link.

Motorola (droid) phones are downloadable, but I don't know cell phone carrier policies w/LE. Never even thought of this aspect. Thanks I would suspect that Verizon wouldn't want to get involved is a misdemeanor arrest and wind up with a lawsuit.

I wasn't aware of the 100 mile border limit, but fully understand. Fortunately; I live beyond this limit.

Thanks jframe. I tried to narrow the legal situation down as much as possible, but appears that I have failed in this aspect. I will heed and remember your sage advice.

[jframe2]

I have been called a lot of things, but sage is new.

Everyone should note that if any cellphone provider is served with a valid subpoena for records, the cell phone provider will comply. They will comply and not think twice about it. They do not care about the charges or the case one whit. They are complying with a lawfully issued subpoena and that is all they care about.

The key to this is to not leave a record. When I hobbied, I used a burn-phone and changed to a new one about every three-6 months. Took out the sim card from the old phone and destroyed it. got a new number each time.

I have not hobbied for many months (moved to a SB model for my fun) and remembered I had this little bit of information saved. So if anyone finds this useful, good enough-

How to Be A Successful Hobbiest
These are just Guidelines. Each person has to find his own level of security and procedures in this hobby!
Play safe, enjoy!

How to Use a Burnphone Wisely
- buy a burn phone (non-smart, pre-paid type) with cash.
- do not register/create an account with any pay-as-you go phones.
- always pay cash for more minutes.
- only turn on the burn phone when needed.
- turn on your phone approx 1-2 hours before appt.
- turn off your phone approx 1-2 hours after appt.
- do not store anything in contacts.
- delete your call history often.- keep battery separate from the phone during down time.
- change to a new phone every 3-4 months, destroy the sim card from the old phone and get a new phone number each time;
- if you find an ATF, set up a Safe word for texting/emailing. Find a simple word you will both remember.


Other Useful Things-
- at a hotel incall, always put the security bar on the door and check the bathroom before placing the donation
- be aware if the hotel room has an adjoining door to another room, think about your surroundings and why would a provider get adjoining rooms.
- if stopped by LE, consent for them to search your vehicle. Immediately after LE has verified your ID, ask to leave. If you are detained, ask for an attorney and then say nothing no matter how they act to you.
- only carry your ID and a small amount of folding money on your person to a date. Leave all else in your vehicle.

- create a separate email account for the hobby and do not use the same handle from any Hobby site for your hobby email. Never use your personal or work email for the hobby. Ever!
- handle as much of your communication by email using an on-line web-browser.
- be aware your ISP is required to keep logs of sites you visit. Use a anonymous connection. Search the web for them.
- be aware your computer keeps records of every website you visit.
- if you are signed into facebook or other social media sites they may Slurp your contacts out of your computer. Yes "Slurp" is the technical term.
- programs like ccleaner, or evidence eliminator are useful to cover your tracks from your pc.
- if you have a car GPS and use it to map to a provider, CLEAR its history as well.

[Yoyoma]

Looks like if it isn't retained on your phone, Verizon only stores actual txt content 3-5 days. Outside of that window they can only give elements associated with the communication (from / to, how long, etc).

http://publicintelligence.net/verizo...am-lert-guide/

http://cryptome.org/isp-spy/verizon-spy.pdf

[Yoyoma]

http://www.aclu.org/cell-phone-locat...etention-chart

[jframe2]

If you have a plan with a major cell provider, I have direct knowledge that the content of a SMS/Text message is retained by cellphone providers for a lot longer than 3-5 days and can be retrieved.

If you are using a pay as you go plan, then 3-5 days is probably correct because the are renting space from the major players (Sprint, Verizon, ATT, etc) who do not want to devote to much server space/time to a 3rd party player.

But the point really, is for Hobbiests to be aware of their Communications Security.

Good points from all.
Information Keeps Us Safe.

[Sensei]

Originally Posted by Typhon100

Sensei,

A very knowledgeable logical response I suppose. Thanks for the hyperlink and it gives me new ideas to search from.

Why are we even discussing hard drives on PC? I began the OP discussion on easily accessed storage information on cell phones upon the event of the providers and/or my arrest. What are our rights against unreasonable search and seizure? Can seized evidence be used against us the both of us by LE in the future in a court of law?

Am I being unclear in the least? I don't mean this in a bad way. Just bringing us right back to the three questions. You haven't even come close to addressing question 1 or 3 in the least, except to single hyperlink, which you post-edited in.

I'm not really worried about my home PC. I generally don't sit down at a restaurant/bar with a laptop or my home PC, plug in and start talking to beautiful providers cm line. Is this your habit, or am I just old-fashioned? If I'm old-fashioned; please let me know so I can become attuned to the modern ways of male hobbyists.

May I request that you stay with the original questions? I already know passwords and encryption. I have been doing this for the last 15 years or so, and actually carry an encrypted satellite up link telephone. I generally leave this telephone at home when I hobby. The satellite telephone would probably be pretty hard to explain at a sting operation.

Please try to contribute something even remotely significant for legal advice in regard to the 4th amendment, or Texas Criminal Codes for the forum. All members I'm sure already know how to use a password! I believe passwords came in Computer 101 in HS, right after to save, save, and save again!

Sensei in Japanese means to lead in the path. Please try to live up to your avatar.

Sorry if my notes didn't meet your expectations. As I am not LE or associated with the Legal Community and my background in the IT field has not been professional (BS Degree in IT only) all I can give is my opinion.

First, they can seize your phones and any other property you have in your "possession" upon arrest. In some cases they may seize your property even when no arrest or charge is made. There is plenty of info out there to prove that this has been done and continues to be done. Google the terms confiscate, money, traffic stop.
Second, yes they can use their IT guys to get into your phones if they really want to get into it. But do they really need to??
And third, yes STFU and let your lawyers do all the talking. As I have been taught Name, Rank, SSN only.

The fact that I included hard drives is because you mentioned them (lost PC) and yes, to begin with I do my communication and research on the pc then phone to actually try and get a date. I don't carry my phone into the room, I carry the donation and an ID card, nothing else so the phone is not an issue for me. Now, possession is in quotes because there have been instances where the item only needs to be within reach or in something you have access to so they may be able to get items out of your vehicle. But that brings up the ole search warrant issue...let them do the work, require a warrant. The link was to show that you can be coerced into giving up your password so passwords and encryption may not do you any good. And yes, a SAT Phone has no business or use in this hobby since the other party would need one as well. I would never think to use our Iridiums for that purpose.

Your original message was such a mess that I really couldn't pull all that much out of it so excuse my not answering it to your liking, I'll try and do better in the future.
Oh, and a minor note; Sensei to my knowledge means "One who has gone before" or in lay terms "Teacher" and is widely used for some Professionals such as Doctors (no am not a Dr.). So in my way, I try to live up to my Screen Name as well as my Avatar lol.

[molnar]

Be careful. Be safe. Play. There are no guarantees in this life, but that is part of the juice. Good luck.