You Have The Right To Remain Silent, Your Phone Does Not

by Project Censored
Published: Last Updated on

On January 20, 2017, as Donald Trump was being sworn in as President of The United States protests were taking place a short distance away. Washington, D.C. Police arrested over 200 individuals and charged them under felony riot laws and took phones away as evidence.  AlterNet’s Sarah Lazare, along with other news outlets cited in the article, have reported that law enforcement is compelling Facebook, Google, and Apple to turn over data for at least some of the people arrested.  An E-mail from Facebook’s “Law Enforcement Response Team” to a user explained that they had ten days to produce court documents that would legally prevent Facebook from honoring the government’s request for information about their account.  Mark Goldstone, a lawyer representing several of the defendants, was quoted as saying both Apple and Facebook had been contacted and asked to turn over customer’s personal information.  One individual arrested and charged with rioting showed AlterNet a communication from Apple alerting him they had received a similar request from legal authorities requesting data.  This man told reporters his phone was NOT present when he was arrested.  Gladstone said, “It’s an outrageous overreach by the government to try to data-mine personal property that wasn’t seized at the demonstration.” Another person arrested, a journalist swept up in the mass arrest who also had his phone taken, showed that there had been almost immediate activity on his password-protected phones’ Google account once it was in police hands. Google, Apple, and Facebook all declined to comment for the story.  Both D.C. Police and the U.S. Attorneys office would likewise not comment about an on-going investigation.  One of the things not known is what legal instrument was used to compel the three companies to turn over information on their customers. Various degrees of power are granted by different legal instrument. A National Security letter would require no court order while a 2703(d) court order allows access to metadata about communications and possibly location. The information to be turned over could be a relatively small amount or it could include everything a user had in the iCloud, photos taken, messages, and emails sent.

This story is critically important for several reasons. Mark Goldstone has defended protesters in the Washington, D.C. area for over 30 years.  He emphasized to AlterNet that he had never heard of a case where phones were seized and had never seen a felony riot charge.   This, unlike the usual misdemeanor charge, carries a penalty of 10 years in prison and fines up to $25,000.  “We’re in a dangerous new world,” Goldstone said.  The journalist that showed AlterNet evidence that his phone and Google account had been accessed while he was in custody begs the question, did the police violate the Supreme Courts ruling in Riley v. California?  The court ruled 9-0 in 2014, “That officers must generally secure a warrant before conducting such a search.” When we examine these events and consider them with the recent actions by state legislators to enact a wide array of laws to criminalize protest related behavior we see clear and present threats to our First Amendment rights. Nineteen states have lawmakers proposing a wide variety of laws all designed to quell protest. The ever increasing equipping of police with tools of both mass surveillance and individual device password breaking gives more and more departments an ability to crack the digital vault of your life. CityLab’s George Joseph, who’s reporting contributed to the AlterNet story, has previously reported that the 50 largest police departments have invested heavily in military-grade surveillance tools. The two primary types of technology used are interception and extraction. The first method involves sweeping large amounts of data from groups of people when their phones are actually communicating with a cell receiver under police control. One device, called the Dirtbox, can track and receive data from almost 10,000 phones at once.  The second method involves extracting data from an individual device including messages, photos, and location history. Taken together, the use of federal riot laws and their severe penalties, the risk of all ones personal information being available to prying eyes, and state laws that further criminalize protest behavior we may expect people to display self censoring behavior.  Not exercising their right to protest because the loss of Fourth Amendment protections also comes in the deal, even if the phone was left home.

Reporting on this story has been scant.  CityLab, by The Atlantic was first to report that these tech companies had been contacted. Reporting by George Joseph on February 3, 2017 in a story titled “Inauguration Protesters Targeted for Facebook Searches” was the first to appear. Other stories, mostly relying on City Labs reporting added a few details.  Articles from The Daily Caller and Naked Security appeared on February 7 and 8 respectively. The large piece from Lazare of AlterNet was published on February 24 and an article from the revolution newspaper on February 27 on AlterNet’s reporting. There was no reporting found on this story from larger corporate media sources.  The Washington Post ran a story on April 2, 2017 citing a Reuters report from March 30, 2017 that a United Nations Human rights investigator stated that individual state laws denote an “alarming” U.S. trend against free speech and protest but made no mention of the Inauguration incident.


Sarah Lazare, “Law Enforcement Using Facebook and Apple to Data-Mine Accounts of Trump Protest Arrestees,”  AlterNet,  Feb. 22, 2017

Robert Seigel, “Local Police Departments Invest In Cell Phone Spy Tools,”  NPR Radio, February 17, 2017,

Joseph, George. “Inauguration Protesters Targeted for Facebook Searches”. CityLab.  Feb. 3, 2017.

“U.S. Government Efforts to Data Mine Accounts of Anti-Trump Protesters—And Apple and Facebook’s Shameful Complicity,” Revolution Newspaper, February 27, 2017,

Student Researcher: Tom Field (Diablo Valley College)

Faculty Evaluator:  Mickey Huff  (Diablo Valley College)