You use your cellphone for almost everything: to pay bills, as a workout tracker that maps where you jog, to remind you where you parked your car and it helps you keep in touch with friends and family through apps such as Facebook and Instagram.
All of that data is fair game for the police to use and sift through in criminal investigations through the use of search warrants.
According to a Virginia Gazette analysis of 511 search warrants digitized and filed in the Williamsburg-James City County Circuit Court since 2011, there has been a dramatic rise in the number of warrants issued to cell phone and internet service providers as well as big technology companies such as Google and Facebook.
If the police have probable cause to think information on your smartphone could aid them in an investigation, they can get a search warrant for its data.
Probable cause is the standard of proof to obtain a warrant. It requires police to provide an affidavit to a judge or magistrate that indicates they have a reasonable belief that a crime occurred and the warrant for the data will help them collect evidence to prove it. But it might take a few search warrants to get to the evidence: one for the device manufacturer, one for the cell phone carrier and several for the data big tech companies.
Investigators can request a search warrant from a judge or magistrate at any hour of the day.
Williamsburg-James City County Circuit Court Clerk Mona Foley said her office has scanned and digitized all search warrants since about 2011 or 2012. Warrants must remain in the system for at least 10 years
In 2011, police in Williamsburg and James City County requested data with search warrants from T-Mobile, Cox Communications and Verizon a total of five times, according to the analysis.
By 2018, police requested information from at least 13 companies 110 times. In 2019, police are on track to request and receive about as many search warrants as last year.
For Williamsburg Police Department detective Maurice “Lang” Craighill, the practice can be essential to finding the facts in a case.
Two questions he often finds himself asking: Can we get the phone? Can we get into it?
A smart phone can open a window into a person’s entire life: people they talk to, where they parked their car last, and even their blood type.
The data from the minutes before and after a crime can provide leads and help show motive, Craighill said. It can be the crucial needle in the haystack that can lead to an arrest and conviction.
“A lot of times, your phone can help you recall your own activity, so apply that toward investigating somebody, Craighill said. “You can use it potentially to kind of cross-examine them.”
It can also prove someone’s telling the truth when they say they were out of town, Craighill said. Police can just see the towers the cellphone pinged off of with a search warrant.
“The truth is what we want,” Williamsburg Police Department Lt. Ed Schneider said.
Following national trends
For digital privacy advocates at the Electronic Frontier Foundation, a national nonprofit group, the actions of police departments in the Williamsburg area follow two national trends.
People have transitioned from using traditional forms of communication — think mail and faxes — to faster electronic forms of communication such as Facebook messenger, Snapchat and text message, according to the group’s senior investigative researcher Dave Maass.
At the same time, police across the nation have begun to notice, Maass said, that the data they get from tech companies gives them even more information than they ever would have gotten in a traditional search.
“As people are storing more and more information on cloud services it becomes like this treasure trove for law enforcement,” Maass said. “It can provide more information than if they were rifling through your drawers.”
When a search warrant is returned to the circuit court for filing, police need to include information on what was searched. A cell phone may be all that is listed on the search warrant, but the search return forms simply say “data extraction pending.”
The EFF argues for narrow search warrants to prevent over-collection of people’s private data. The EFF is a watchdog group that looks to make sure government follows the law and has advocated for laws to keep data private and out of investigators’ hands without search warrants.
“One of the things we’ll often hear is that Google has way more information on me than law enforcement, but at the same time we’re not always talking about a difference between those two things,” Maass said. “If Google or Facebook has it, then the police can get it.”
When state law requires police departments to ask a judge or magistrate for a narrow search warrant as opposed to other court orders with lower legal burdens of proof, that’s a gold-standard for privacy, Maass said.
Virginia’s standard for collecting cellphone data requires either a court order, a subpoena from a grand jury, a search warrant or the consent of the searched person. A court order and a grand jury subpoena require lower burdens of proof on officers, Craighill said.
The Presiding Judge of the Williamsburg-James City County Circuit Court, Michael E. McGinty, generally requires police officers to ask for a search warrant instead of a court order or grand jury subpoena, according to Craighill.
Maass warned that in 30 to 40 years, the amount of data on anyone individual would be a trove for police departments and companies.
When services are free — Google, Facebook, Instagram and Twitter — the users are the product. Big tech companies collect users’ personal and web browsing data and sell it to advertisers. Private information is readily sold and use of the companies’ services can give advertisers a direct window into where you are in life and in the world. Sometimes this private information is exposed in massive data breaches.
“You’re going to have people with data dating back to when they were children,” Maass said.
Any time law enforcement officials have probable cause and think there could be additional evidence of a crime, they can ask a magistrate or a judge to sign off on a search warrant, according to Williamsburg Police Department detective Maurice “Lang” Craighill.
One search warrant can often lead to many follow up warrants, Craighill said.
Police can ask a hardware manufacturer to unlock a phone, although companies like Apple have refused. Police can ask a cellphone provider to hand over all the data for a single person or an entire cellphone tower in what’s called a tower dump, Craighill said. Although the latter has only been done once by Williamsburg police. and Craighill said he wasn’t sure if he’d ever want to do it again.
Old tool finds new use
Search warrants seeking personal data aren’t new: bank records have been requested by police departments for decades, but the types of data created in the internet age can give police more insight into a person’s life or potential criminal motive.
The court orders compel a person or business to provide whatever material is listed on the warrant, according to York-Poquoson Sheriff’s Office spokesman Capt. Troy Lyons. With few exceptions, any illegal object an investigator finds while attempting to locate the materials listed on the warrant is fair game.
But that can get complicated when an investigator finds a message on the locked-screen of a cellphone. The information is not held locally, so the police have to request data from the service provider.
A York County woman, Lynn Judith Fogarty, 35, is charged with fatally shooting her husband, Giancarlo Di Fazio, while he was in the bathroom, according to filings in York-Poquoson Circuit Court.
York-Poquoson Sheriff’s Office investigators received multiple search warrants for three cell phones, 23 handguns and rifles, and 45 prescription drug bottles, according to the warrants.
When officers seized an iPad from Fogarty’s residence, they noticed a Gmail alert from Fogarty’s brother that said “have the guts to get out now. It is not hard to get an annulment,” one warrant said.
That led investigators to request a warrant for Fogarty’s brother’s email for the week of Di Fazio’s death in September 2016.
“The email received by Mrs. Lynn Fogarty shows that she communicates via Gmail with others about her relationship status and possible motive for murder,” one warrant request said.
Investigators sought evidence in the form of data in the cloud to see what, if anything, Fogarty said to her brother in the minutes after Di Fazio’s death, the warrant said. Her criminal trial starts in York-Poquoson Circuit Court on Jan. 6, 2020.
Search warrants for data can lead to spiraling requests for more warrants for even more data, although they haven’t for Fogarty. Her case is just one of the latest where police have asked a magistrate for private data to bolster the chances of a successful prosecution.
At the end of the day, Craighill said, the data helps solve cases.
It’s a rare occasion when a person charged with a crime admits the crime to the police and tells officers their motive.
“Sometimes you can potentially find the why,” Craighill said. “To understand it.”
Roberts can be reached at 757-604-1329, by email at firstname.lastname@example.org and on Twitter @SPRobertsJr.