EPIC - Wisconsin v. Burch

Wisconsin v. Burch

Whether a reasonable person who verbally consents to a limited search of their cell phone authorizes law enforcement to download that phone’s entire contents, store a copy of the data indefinitely, and use it in unrelated investigations based on a vague consent form.

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EPIC's Interest|
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Wisconsin Supreme Court Refuses to Limit Warrantless Forensic Searches of Cell Phones: The Wisconsin Supreme Court issued an opinion in Wisconsin v. Burch finding that cell phone data downloaded with a forensic device can be used in a subsequent, unrelated investigation and trial regardless of whether the data was initially obtained without a warrant in violation of the Fourth Amendment. A police department used a forensic device to download the entire contents of the defendant's phone while investigating a hit-and-run and retained a full copy indefinitely. The sheriff's office later accessed and searched the copy during an unrelated homicide investigation and used the defendant's cell phone data as evidence during his trial. The Wisconsin Supreme Court refused to decide the constitutional question. Instead, the Court found that the evidence should not be excluded because the police "acted by the book" and there was no conduct to deter with exclusion. The Court said that the sheriff's office "ha[d] every reason to think [the downloaded data] was lawfully obtained" and found there was no police misconduct because it is "common police practice to share records with other agencies." Dissenting from this holding, Judge Bradley, along with two other justices of the court, recognized that law enforcement "generally needs a warrant to search the data [cell phones] hold." She added that the exclusionary rule should apply in this case because "excluding evidence obtained by following such an unlawful and widespread policy provides significant societal value by both specifically deterring continued adherence to an unconstitutional practice and more broadly incentivizing police agencies to adopt policies in line with the Fourth Amendment." EPIC, along with the ACLU and EFF, filed an amicus brief in the case that argued that the unchecked use of forensic devices to download, store, and share cell data violated the Fourth Amendment by "enabl[ing] the State to rummage at will among a person's most personal and private information whenever it wanted, for as long as it wanted" without a warrant. EPIC regularly files amicus briefs challenging unlawful access to cell phone data. (Jun. 29, 2021)

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EPIC & CDT Amicus Brief Highlights Dangers of Unchecked Government Collection of E-Scooter Location Data » (Aug. 3, 2021)

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Wisconsin Supreme Court Refuses to Limit Warrantless Forensic Searches of Cell Phones » (Jun. 29, 2021)

The Wisconsin Supreme Court issued an opinion in Wisconsin v. Burch finding that cell phone data downloaded with a forensic device can be used in a subsequent, unrelated investigation and trial regardless of whether the data was initially obtained without a warrant in violation of the Fourth Amendment. A police department used a forensic device to download the entire contents of the defendant's phone while investigating a hit-and-run and retained a full copy indefinitely. The sheriff's office later accessed and searched the copy during an unrelated homicide investigation and used the defendant's cell phone data as evidence during his trial. The Wisconsin Supreme Court refused to decide the constitutional question. Instead, the Court found that the evidence should not be excluded because the police "acted by the book" and there was no conduct to deter with exclusion. The Court said that the sheriff's office "ha[d] every reason to think [the downloaded data] was lawfully obtained" and found there was no police misconduct because it is "common police practice to share records with other agencies." Dissenting from this holding, Judge Bradley, along with two other justices of the court, recognized that law enforcement "generally needs a warrant to search the data [cell phones] hold." She added that the exclusionary rule should apply in this case because "excluding evidence obtained by following such an unlawful and widespread policy provides significant societal value by both specifically deterring continued adherence to an unconstitutional practice and more broadly incentivizing police agencies to adopt policies in line with the Fourth Amendment." EPIC, along with the ACLU and EFF, filed an amicus brief in the case that argued that the unchecked use of forensic devices to download, store, and share cell data violated the Fourth Amendment by "enabl[ing] the State to rummage at will among a person's most personal and private information whenever it wanted, for as long as it wanted" without a warrant. EPIC regularly files amicus briefs challenging unlawful access to cell phone data.

EPIC, ACLU, & EFF Push Court to Limit Warrantless Forensic Searches of Cell Phones » (Mar. 8, 2021)

EPIC, together with the ACLU and EFF, recently filed an amicus brief in Wisconsin v. Burch, urging the Wisconsin Supreme Court to stop police from conducting warrantless forensic searches of cell phones and indefinitely retaining the data based on vague consent forms. The defendant in the case had verbally consented to a limited search of his text messages during a hit-and-run investigation. Police then asked him to sign a vague consent form that did not specify his phone would be forensically analyzed and the data stored indefinitely. Police used a forensic device to download the entire contents of the phone, retained a full copy, and disclosed data that was outside the scope of his limited verbal consent to another department for use in an unrelated investigation. In their brief, EPIC, ACLU, and EFF argued that someone who consents to a limited search does not reasonably expect police may access, copy, and store vast amounts of personal information held on their phone. These searches violate the Fourth Amendment by “enabl[ing] the State to rummage at will among a person’s most personal and private information whenever it wanted, for as long as it wanted” without a warrant. EPIC regularly files amicus briefs challenging unlawful access to cell phone data.

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EPIC to Fifth Circuit: Do Not Allow Warrantless Cell Phone Searches at the Border » (Jun. 9, 2020)

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EPIC Comments on Maryland "Smart Meter" Privacy Bill » (Jan. 16, 2018)

In response to request for comments from the Maryland legislature, EPIC submitted a statement in support of a bill to prohibit law enforcement from obtaining data recorded by a smart meter without a warrant. Smart meters collect personal data about the use of utility services that can reveal when a person is at home and what they are doing. EPIC stated that "the routine collection of this data, without adequate privacy safeguards, would enable ongoing surveillance of Maryland residents without regard to any criminal suspicion." EPIC said that HR 56 is a "model privacy law that enables innovation while safeguarding personal privacy." EPIC has testified in Congress and submitted comments to NIST and the state of California on smart grid privacy. EPIC has also submitted amicus briefs on Fourth Amendment cases before the Supreme Court, including Carpenter v. United States and Byrd v. United States.

Supreme Court to Review Two Cases on Communications Privacy » (Oct. 16, 2017)

The Supreme Court has agreed to review United States v. Microsoft, a landmark case about whether the U.S. government can force email providers to turn over users’ private messages that are stored outside of the United States. The government claims that the Electronic Communications Privacy Act allows investigators to demand emails from all over the world, in violation of national privacy laws. A federal appeals court rejected the government’s arguments last year and ruled that Microsoft was not required to hand over emails that the company stores in Ireland. The Supreme Court has also agreed to review Dahda v. United States, a related case about whether the Fourth Amendment allows the government to use evidence obtained through an unlawful court order. Both cases are expected to be argued in early 2018. EPIC regularly files amicus briefs in privacy cases before the Supreme Court, including recently in Carpenter v. United States, Packingham v. North Carolina, and Utah v. Strieff.

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In Utah v. Strieff, the U.S. Supreme Court held today that an outstanding arrest warrant can attenuate “the connection between an unlawful stop and the evidence seized incident to arrest.” The holding reverses the Utah Supreme Court, which had suppressed evidence obtained by an officer who stopped Strieff illegally and ran his ID to look for outstanding warrants. EPIC and 22 technical experts filed an amicus brief, warning the Court that reversing the Utah court would allow vast amounts of personal data stored in government databases—much of it inaccurate—to provide post hoc justification for unlawful seizures.

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Supreme Court Limits Traffic Stop Searches » (Apr. 21, 2015)

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Advisory Committee Approves Rules to Expand Police Hacking Authority » (Mar. 18, 2015)

According to a news report, a committee of the Federal Judicial Conference voted on Monday to approve changes to Rule 41 of the Federal Rules of Criminal Procedure. Under the revised rule, judges could issue "remote access" warrants authorizing law enforcement to search computers remotely, even when the target is outside the jurisdiction of the court. EPIC criticized the proposal in a statement presented by EPIC Senior Counsel Alan Butler last fall, arguing that the rules would not provide adequate notice as required under the Fourth Amendment. EPIC previously filed an amicus brief on a similar issue, the delivery of warrants via facimile. The decision of the advisory committee is only one of several steps before the change is adopted by the judiciary.

Wikimedia Sues NSA Over Mass Internet Surveillance » (Mar. 10, 2015)

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Supreme Court to Hear Case About Enhanced Search Techniques » (Jan. 6, 2012)

The US Supreme Court has decided to review Florida v. Jardines, a case that addresses whether a dog sniff at the front door of a home is a search that requires probable cause. This case follows Illinois v. Caballes, a 2005 case in which the Court held that a dog sniff around a car during a routine traffic stop was not a search. The Florida Supreme Court ruled that Caballes was inapplicable in the case, and that a dog sniff in front of a home is a Fourth Amendment search. This case also implicates the government's use of "enhanced" investigative techniques that are designed to detect contraband. Because these techniques are imperfect and also allow the government to search for material that is not illegal, EPIC has argued that a Fourth Amendment probable cause standard should apply. For more information, see EPIC: EPIC v. DHS (Airport Body Scanners).

Federal Appeals Court Holds Individuals Have a Right to Record Public Officials » (Sep. 1, 2011)

In a case concerning the arrest of a person who used a cell phone camera to film a police officer, the First Circuit Court of Appeals has held in Glik v. City of Boston that the First Amendment protects "the filming of government officials engaged in their duties in a public place." The Court found that members of the public enjoy the same rights as credentialed members of the press, stating that "the public's right of access to information is coextensive with the press." The Court further held that, in arresting Glik, the City of Boston violated the Fourth Amendment probable cause requirement as there was no reason to believe that Gilk had violated any state law. EPIC agreed that the Massachusetts state wiretap law was not intended to limit the ability of the public to record police activity, but did not file an amicus brief in the case. For more information, see EPIC: EPIC Amicus Curiae Briefs.

Supreme Court: Strip-Search of Teenager Violated Constitutional Rights » (Jun. 25, 2009)

The Supreme Court delivered a 8-1 opinion ruling that a strip-search of a thirteen-year-old girl by school officials looking for an ibuprofen tablet violated the Fourth Amendment. Justice Souter writing for the Court held that the search was unreasonable and that school searches are permissible when they are "not excessively intrusive in light of the age and sex of the student and the nature of the infraction." But a majority of the Justices also said that the school officials were not liable for damages because it had not been "clearly established" that the search was unlawful. Justices Stevens and Ginsburg disagreed and said that a previous Supreme Court case made clear that the search was "excessively intrusive." Justice Thomas wrote in dissent that the search was permissible. See also EPIC's page on Student Privacy.

Summary

The Fourth Amendment generally requires the government to get a warrant which specifically describes the scope of a search in order to protect individuals from unreasonable searches of their "persons, houses, papers, and effects." There are several exceptions to the warrant requirement, and one that law enforcement frequently uses is consent. Researchers have raised concerns that consent searches could be used too frequently or be overly broad given the power dynamics at play in interactions between law enforcement and subjects. Consent searches of cell phones are particularly problematic given the quantity and sensitivity of data stored on those devices and the fact that law enforcement agencies use sophisticated forensic devices to extract and analyze all of the data stored the phone. These forensic cell phone searches expose a huge amount of sensitive personal data and should not be made based on vague consent forms that do not explain the parameters of the extraction, search, or retention of the data.

In this case, the Defendant, who was interviewed during a hit-and-run investigation, verbally consented to a limited search of his text messages and then signed a generic consent form. The police then used a forensic device to extract all of the data from the Defendant's phone, retained a copy of the data even after the investigation was closed, and eventually disclosed data outside the scope of the Defendant's verbal consent and the scope of the original investigation with another police department for use in an unrelated homicide investigation. The Defendant was convicted of homicide and appealed, arguing that the initial extraction of his phone data exceeded the scope of his consent and should not have been used in the homicide investigation months later. The appeals court asked the Wisconsin Supreme Court to decide this novel issue. The case is currently before the Wisconsin Supreme Court.

Background

In June 2016, the Green Bay Police Department (GBPD) was investigating a hit-and-run incident involving a vehicle recently used by the defendant. While questioning him, an officer asked to see certain text messages on the Defendant's cell phone that were sent on the night of the incident. Mr. Burch allowed the officer to momentarily take his phone to download the messages, and he signed a generic consent form for the search. The officer did not obtain a warrant but relied instead on the consent form to have a forensic examiner download all of the data from Mr. Burch's phone. The investigation eventually concluded without linking Burch to the hit-and-run, but the GBPD kept a copy of his phone data.

The forensic examiner used a mobile device forensic tool to download and sort through all of the data from Burch's phone. Many law enforcement agencies across the country use these powerful forensic devices to access all types of information stored on a cell phone, as well as information stored off-device in the cloud and even previously deleted files. These devices download all the phone data information into folders and can organize and search the data in a variety of ways that would not be possible to an average user. The forensic software includes search functions that can quickly pick out certain types of data based on keywords or filters. Police frequently use these tools to search cell phones when the owners "consent" to a search, even when they use written consent forms that fail to inform individuals that such tools will be used on their device. The consent form Mr. Burch signed was just such a form; the document did not detail the scope of the extraction, search, or retention of his data.

In August 2016, a separate police department learned that the GPBD had a copy of Burch's cell phone data and requested it after he became a suspect in an unrelated homicide investigation. They did not obtain a warrant to access and search the data. An officer used Burch's mobile internet history and phone location information from a month before the hit-and-run incident to build a case against him in the homicide investigation. The Defendant was arrested and charged with homicide. At trial, the State relied on the internet history and phone location evidence. Mr. Burch was convicted and appealed to the Wisconsin Court of Appeals, arguing that the evidence from his phone should not have been used during his trial. Burch argued that the GBPD's initial extraction exceeded the limited scope of consent he had given to search his text messages, and the second police department should not have had access to the copy of his data without a warrant.

The Court of Appeals determined that the case raised important Fourth Amendment issues never before considered in the state and asked the Wisconsin Supreme Court to decide the appeal. The Wisconsin Supreme Court took the case and presented a number of questions, including whether a reasonable person authorizes the warrantless extraction of their entire phone data when they verbally consent to a more limited category of data but sign a general consent form.

EPIC's Interest

For years, EPIC has sounded the alarm on the significant threat to privacy posed by warrantless searches of cell phones. EPIC filed an amicus brief in Riley v. California, in which the U.S. Supreme Court cited EPIC's brief and recognized that the massive amounts of sensitive information stored on modern cell phones requires heightened constitutional protections. EPIC also filed a brief in Carpenter v. United States, arguing that law enforcement must obtain a warrant before accessing and using phone location information, which can reveal intimate and private details of individuals' lives based on their movements over time. EPIC regularly files amicus briefs in Fourth Amendment cases concerning privacy in personal data, including cable subscription information.