A joint commentary submission by:
Bob Dold, Congressman, 10th Congressional District of Illinois
Michael Nerheim, Lake County State’s Attorney
Last September, the Fox Lake community was rocked by the death of Officer Charles Joseph Gliniewicz. By now, his death—and the investigation that followed—has been dissected almost every way imaginable. However, one area that has not received enough attention is the technological obstacles that law enforcement were forced to overcome to obtain the truth.
A bedrock principle of the American criminal justice system is that a warrant needs to be obtained if law enforcement wants to search a suspect’s private property. This indispensable right protects individual privacy and due process, while maintaining the ability of the police and investigators to stop and solve heinous crimes. Unfortunately, outdated laws and practices designed for a less technologically advanced age are making it harder for law enforcement officers to keep people safe.
The Gliniewicz case highlights the destructive outcome that occurs when manufacturers of mobile devices are unable to bypass the security of a smartphone, even when probable cause search warrants are provided. The lengths that local law enforcement had to go through to gain access to the mobile device caused a negative light to be shed on the investigation by media from around the country, including a myriad of conspiracy theories and cover-up allegations because of how long it took to gain access to the mobile phone. What could have taken days instead took several weeks to determine the facts in the case as a result of deleted evidence located in the cellphone found at the Gliniewicz crime scene.
Law enforcement is currently ill-equipped to deal with hurdles as simple as unlocking a cellphone, and as a result, drug dealers can hide behind a smart phone password to arrange sales, sexual predators freely exchange videos of underage children and burglars plan out how to make their getaway from their victims’ homes and businesses without consequence.
For law enforcement, a suspect’s smartphone can present a wealth of potential evidence in criminal cases; however, all criminals need to do to evade the law at this point is add a password that prevents anyone without the code from accessing information on the phone. While this is a commonsense protection for consumers, it also has unintended consequences for those whose job it is to keep our communities safe.
Suspects cannot be compelled to provide the code to law enforcement, and even in response to a valid search warrant, the manufacturers themselves cannot unlock the phone without the pin code. In many cases, this has prevented law enforcement officials possessing a valid warrant from legally obtaining relevant data locked on a smartphone.
Beyond the exploitation by criminals, this limitation also handicaps law enforcement investigations to help victims of crimes. For instance, encryption technology can prevent police from accessing the phone of a murder victim to see whether they were in contact with a suspected killer. Encryption can also deny police the ability to gain vital information on the whereabouts of a teenager who has gone missing. One of the most common obstacles law enforcement encounters is determining the motivations of suicide victims, specifically teens, and whether or not those victims chose to commit suicide due to pressure or bullying from their peers.
In 2014, in Lake County, Illinois, a 15-year-old victim was found with a smartphone next to his body at the scene. Law enforcement attempted to forensically examine the victim’s smartphone, but was unable to gain access because of a password on the phone. Multiple forensic examination tools available to local law enforcement at the time were used, but none were able to bypass the device’s password. Attempts to compel the smartphone manufacturer to unlock the phone failed, and as a result, critical evidence was lost.
These situations are not only a hindrance for law enforcement around the country, but also cause ongoing anguish for the victim’s family members. The surviving loved ones of the victims in these cases have a tendency to live their lives with unnecessary guilt, blaming themselves for many years because no clear motive for the victim’s mental struggle could ever be determined.
This is not about giving law enforcement unfettered access to an individual’s smart phone – such an invasion of privacy would be antithetical to our American way of life. Instead, this is about whether we should allow uncooperative criminals to unilaterally override a warrant or prevent law enforcement from obtaining crucial evidence after a victim’s death.
We believe it is time for law enforcement, smart phone manufacturers and Congress to work together to change these policies. We support the establishment of sensible policies that will assist law enforcement, executing a legally valid search warrant, in obtaining critical data found on smart phones. Without a new approach, sex offenders, violent criminals and drug dealers will continue to exploit simple technology to stay above the law.
This is part of a series of commentaries from individuals, guests and organizations about what’s important to the Chicago area. Read more at www.wlsam.com/wls-commentary.
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