Testimony on MDFTs at the 2022 MPD Oversight Hearing

The following written testimony was presented by Upturn Policy Analyst Tinuola Dada at the DC Council Committee on Judiciary and Public Safety's Public Hearing on 2021-2022 Metropolitan Police Department Performance Oversight. Tinuola testified on MPD's use of mobile device forensic tools and called for DC Council to — at a minimum — ban consent searches of cellphones in DC.

Dear Chairman Allen and Members of the Committee on the Judiciary & Public Safety,

Thank you for the opportunity to testify for the 2021-2022 Metropolitan Police Department Performance Oversight Hearing.

My name is Tinuola Dada and I am a Ward 1 resident and a Policy Analyst at Upturn, a DC-based nonprofit organization that works to advance justice in the use of technology. I am writing to testify about MPD’s use of mobile device forensic tools — tools that allow police to extract and search a cellphone for every text, photo, piece of location data, online search history, and more. Since 2017, MPD has spent more than $150,000 obtaining these kinds of tools.

My testimony is based on more than three years of research on law enforcement’s use of mobile device forensic tools (report attached).

Critically, our research found that many police departments often rely on people’s consent to search cellphones, rather than obtaining a warrant. In these cases, this means no judicial oversight or legal limitations on the scope of the search, or how the data is later used. While police consent searches are troubling in any context, consent searches of cellphones underscore the power and information asymmetries between law enforcement and the public.

Given the vast amounts of information stored on our phones today and the invasive extraction and search capabilities of mobile device forensic tools, we believe the Council should, at minimum, move to ban consent searches of cellphones in DC, if not all consent searches outright.

Consent searches are frequent and widespread. While little national data on the prevalence of consent searches exists, multiple scholars have estimated that consent searches comprise more than 90% of all warrantless searches by police. Our research shows that consent searches are especially prevalent in cellphone extractions. In Harris County, TX, 53% of all cell phone searches conducted by the Sheriff's Office were consent searches. Between 2018 and 2019, over half of the phones extracted by the Denver Police Department were consent searches. And nearly one third of the phones the Seattle Police Department sought to extract data from were consent searches. Unfortunately, we do not have the numbers in DC — nor many other critical details about how MPD uses these tools — because MPD continues to stonewall our FOIA request from February 2019, more than three years ago.

Consent searches are a legal fiction, and they are almost always coercive. While the Supreme Court has held that consent cannot be “coerced, by explicit or implicit means,” the notion that someone can actually feel free to walk away from an interaction with police ignores reality. Recent data from California’s Racial and Identity Profiling Advisory (RIPA) Board shows that 95 percent of individuals consent to a search when asked by an officer. People of color are especially unlikely to feel free to refuse consent. As one scholar noted, “many African Americans, and undoubtedly other people of color, know that refusing to accede to the authority of the police, and even seemingly polite requests—can have deadly consequences.”

As a result, consent searches have far reaching harms. Law enforcement can do almost anything with data extracted from a cellphone after someone consents. In the vast majority of jurisdictions across the country, there’s no limit on how long an agency can store data extracted from phones pursuant to consent, or when and how law enforcement could re-examine a cellphone extraction. Notably, the Wisconsin Supreme Court recently held that cellphone evidence obtained from a consent search in one jurisdiction can be shared with other law enforcement agencies pursuing unrelated investigations, without needing new legal authorization.

Moreover, absent specific prohibitions, law enforcement could copy data from someone’s phone, like their contact list, and add that information into a far-reaching police surveillance database. For instance, it’s easy to imagine MPD using data extracted from mobile phones as evidence to place people in their “gang database,” given the low bar for individuals and their information to be added to such databases. This matters not only to the owner of the phone, but to all of their friends and family, who are at risk of increased police contact. 

Warnings are not enough. The warning requirement in the Comprehensive Policing and Justice Reform Second Emergency Amendment Act of 2020 does not sufficiently ensure that consent searches are voluntary. That warning requires officers to inform the “subject of the search [that they are] being asked to voluntarily, knowingly, and intelligently consent to a search.” Such a warning does nothing to disclose the nature of an invasive cellphone search. The burden to limit the scope of a consent search still  falls on the person being searched. This puts DC residents in an impossible position: only they can limit a search of their cellphone, but most residents don’t even have a rough idea of the power of the tools that MPD uses to extract and analyze data from phones.

But even warnings about the kind of search to be performed do little to ensure that consent searches are voluntary, informed, or limited. A recent study designed “specifically to examine the psychology of consent searches” demonstrates the ineffectiveness of such warnings in limiting consent searches. Participants were brought into a lab and presented with “a highly invasive request: to allow an experimenter unsupervised access to their unlocked smartphone.” The researchers found that participants who received a warning about their right to refuse the search were just as likely to comply with the search. This is also consistent with a much earlier analysis of data collected from the Ohio Highway Patrol on motor vehicle stops, which found no decrease in consent rates after a law requiring warnings was introduced.

Banning consent searches is not a new suggestion. Nor is it a perfect solution, as it’s easy for law enforcement to obtain a search warrant. But banning consent searches of cellphones can help limit police discretion, limit the coercive power of police, and begin to rein in MPD’s use of these tools. Accordingly, the Council should — at minimum — ban the use of consent searches of cellphones, if not all consent searches.

Thank you for the opportunity to submit this testimony. 

Tinuola Dada 

Policy Analyst, Upturn

tinuola@upturn.org