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LOSING YOUR PRIVACY ONE DEVICE AT A TIME: Police can impersonate you with seized cellphone; entrap (encourage) your friends and co-workers …

There is no doubt in my mind that law enforcement officials need strict guidelines on the appropriate handling of electronic devices to protect the interests of individuals whose electronics may have been seized. Here we have a court case where a law enforcement official used a seized phone to initiate a drug transaction with an unsuspecting (I hate to use the word victim) individual who appears to have been willing to engage in criminal activity. According to the law, this was not entrapment or a violation of the suspect’s rights.

According to a Washington State Appellate Published Opinion  …

The State charged Roden in two separate cause numbers with attempted possession of heroin (superior court cause no. 09-1-01153-0) and with possession of heroin (superior court cause no. 10-1-00091-4). Roden stipulated that he committed both crimes. The trial court convicted him at a stipulated facts trial. Roden appeals.

Roden argues that the detective's interception of his text messages to a suspected drug dealer violated his rights under Washington's privacy act, chapter 9.73 RCW. He does not raise any constitutional claims with regard to the detective's actions.

A police detective acquired the iPhone of a suspected drug dealer.

The detective looked through the iPhone's contents and replied to a text message from Jonathan Roden stored on the iPhone.

Through a series of text messages from the dealer's phone, the detective and Roden arranged to meet for a drug transaction, which led to Roden's conviction of attempted possession of heroin. He appeals this conviction, arguing that the detective violated Washington's privacy act, chapter 9.73 RCW, by intercepting his private text messages to the dealer. Because Roden impliedly consented to the recording and/or interception of the text messages that he sent to the dealer's iPhone, his argument fails. <Source>

Thus it appears legal for a law enforcement official, at least in the State of Washington, to use your electronic device to send messages to people who have sent you messages or are in your contact book. Whether such a message may constitute entrapment is up to the courts acting on a case-by-case basis.

Bottom line …

Due to the amount of information stored in electronic devices, one must be extremely careful about transacting confidential business via text or voice messages. In addition, you cannot rely on the device’s internal security or the sufficiency of its erasure process to guarantee privacy. Several law enforcement demonstrations have revealed that phones can be compromised without physical contact and that erased information and location metadata can be recovered at will.

As a side note, it appears that criminals are returning to the use of old-fashioned walkie-talkies to relay information because they are not tracked at sale and most often do not have GPS-enabled capabilities. Some criminals have been seen with metallic foil bags to store their phones to render them incapable of transmitting or receiving radio-frequency information.

Best practices techniques should be considered when dealing with the privacy of information stored or transmitted on electronic devices, mobile or stationary.

And if you haven’t done so yet, I suggest you support the Electronic Frontier Foundation (www.eff.org) which supports individual freedoms in this legally troublesome age of technology.

Reference Links …

STATE OF WASHINGTON, Respondent, v. JONATHAN N. RODEN, Appellant. (No. 41037-1, Consolidated With 41047-8-II.) Court of Appeals of Washington, Division One. Filed: June 26, 2012

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