back to article UK cops blasted over 'disproportionate' slurp of years of data from crime victims' phones

Privacy rights groups have slammed UK police's "indiscriminate" grabbing of crime victims' data. A report (PDF), released today by Big Brother Watch and eight other civil rights groups, has argued that complainants are being subjected to "suspicion-less, far-reaching digital interrogations when they report crimes to police". …

  1. b0llchit
    Meh

    Stop using that phone

    It is so simple and obvious. It will prevent many embarrassing situations. Simply do not use a mobile phone on every whim. Leave it at home. Only use it to call (auch, that makes one feel old, doesn't it). Stop generating a digital record of yourself.

    I know, it may seem like a negative, but imagine all the time you suddenly have to see the world. No more FOMO, use SLOMO(*).

    (*) sorry for the remake reference.

    1. Halfmad Silver badge

      Re: Stop using that phone

      You don't have to stop, you have to moderate. Use what is useful and stop the instagram/twitter etc nonsense unless it's actually beneficial to you (it is in limited cases).

      I don't see technology as the problem, it's how SOME people use it that is.

      Many of us have no option but to have a phone on us for work, as a carer etc. If you've ever had parents with dementia you know having your phone on you can save a life.

    2. Jellied Eel Silver badge

      Re: Stop using that phone

      It is so simple and obvious. It will prevent many embarrassing situations. Simply do not use a mobile phone on every whim. Leave it at home. Only use it to call (auch, that makes one feel old, doesn't it). Stop generating a digital record of yourself.

      Good luck with that, and we shouldn't need to. To me, the police powers should be reasonable, proportionate and not fishing trips. So suppose I arrange a hookup via tindr, grindr or hookup app of choice. That may or may not lead to intimacy, flirty texts/images and possibly a rape claim. One person may be able to show probable consent by volunteering their phone records, the other may refuse.

      What should the police do? For me, rape has always been a nasty crime because it's usually a private act with no witnesses. So it feels reasonable to allow a phone search, but I'd expect that to only include stuff that may be relevant to the crime in question. Or perhaps I'd want it limited, especially if my hookup trail lead to other rape victims.

      It's a delicate balancing act, especially when phones (and related databases) collect huge amounts of data, not just the good'ol days of phone logs and texts. Up to 7 years of data may include a complete digital footprint of someone's wanderings thanks to GPS/geolocation data*.

      I guess it's a combination of lack of trust, plus technology forces fishing. Possibly for marketing purposes. If a phone's cloned, then it's going to get a copy of everything logged on that phone. If 'detection' is AI based, that may then mean the data's sent to the cloud so the AI can play with it. Or the supplier's use the data to train their cloud, flog it etc etc. I'd trust the police to look, use as evidence, and if not, delete that data. If 3rd parties are involved, I'd have far less trust & more concern around the potential privacy implications.

      *The geek in me thinks plotting that on GIS would be fascinating to peruse, and probably of interest to people from town planners to sociologists. But also impossible to anonymise given the favorite destination would probably be your home. Scary thing is it's something Google/Android already have, and I trust them far less than the police..

    3. Just Enough

      Re: Stop using that phone

      "Stop generating a digital record of yourself."

      I can store my own record of my own self. The problem starts when authorities also think they have a right to see it and take a copy. This is positively Orwellian, where the victim is having to prove that they are innocent.

      1. Jellied Eel Silver badge

        Re: Stop using that phone

        The problem starts when authorities also think they have a right to see it and take a copy. This is positively Orwellian, where the victim is having to prove that they are innocent.

        To an extent, they do, and again it's about reasonable & proportionate. Plus which side of the law you're on. If I was accused of something & innocent, I'd want to be as helpful as possible to prove that. If I were guilty, obviously I'd want to make it difficult. If I were the victim, I think it's back to trust.. Plus perhaps some problems with legislation.

        I was suprised that a victim's complete phone data was given to their accused's lawyer. I know there's a right to see evidence that will be used against you, but that needs to be proportionate.. Especially as that could easily lead to intimidation & harrassment.

        I think there's also a CSI effect. So thinking about the article's assault victim, you could look at mobile base station logs to show devices registered to that cell at that time. In theory, you could then request geolocation data from those devices to show which were in close proximity to the victim, and have either a witness or a suspect list. Problem with that I guess is that although getting the cell data is doable thanks to legislation & industry protocols, getting the GPS data would mean asking Apple or Google, who'd probably make that difficult, rightly or wrongly.. But it's not as easy to solve crimes as we see on TV.

        1. Jimmy2Cows Silver badge

          Re: Stop using that phone

          Upvoted for 'To an extent, they do, and again it's about reasonable & proportionate.'

          Sometimes people claim they are a victim of something that didn't actually happen. Fortunately these are relatively rare, but it does happen. A victim's digital footprint can sometimes reveal the truth of the alleged incident is different to what is claimed. For a true application of justice, it's important to be sure the claim is genuine. I'm not victim blaming here, just saying it's as important to believe the accused may be innocent as it is to believe the victim may be telling the truth.

          Proportionality and appropriate use of the data are key.

          I do expect both sides to provide all relevant evidence, not just what they think is relevant. This helps ensure the truly guilty are punished and the truly innocent don't have their lives destroyed by a malicious accuser.

          Sharing victim's data with the defence is part of that. It's an ugly truth, but sometimes it's the only proof of innocence an accused has. I do expect shared data is only what is relevant to the case - this helps ensure fair justice.

          The grey area is knowing what is relevant and what is not. Police and CPS have messed this up a few times, had cases dropped in court because content of the alleged victim's phone came to light, exonerating the accused. Never mind it should never have gone to court in the first place.

          I do not expect police to feel free to take everything they can get the paws on and go fishing.

      2. Doctor Syntax Silver badge

        Re: Stop using that phone

        "This is positively Orwellian, where the victim is having to prove that they are innocent."

        It's more complex than you think.

        My experience in investigating such cases is well out of date - in fact it's almost exactly disjunct with mobile phones. Mores may well have changed but there was always a problem with trusting rape allegations. There were a few fairly obvious attempts to cause trouble: in one case I remember on breaking up with a former boyfriend and in another in an attempt to inconvenience the police after she'd had a telling off.

        Where the dubious claims actually name an alleged perpetrator there are now two potential victims. Out of fairness to someone who may have been wrongfully and even maliciously accused the police have to tread a very fine line.

        1. Commswonk Silver badge

          Re: Stop using that phone

          Out of fairness to someone who may have been wrongfully and even maliciously accused the police have to tread a very fine line.

          Um... a requirement that they spectacularly failed to follow in the matter of the accusations emanating from Carl Beech, a/k/a/ "Nick".

          1. Doctor Syntax Silver badge

            Re: Stop using that phone

            Indeed. In my day police were more sceptical.

            On the other hand we also had Kincora House back then and everyone concerned in investigating that thought it must be a one-off, how could it slip under the radar, there must be political protection etc. We now know it wasn't unique and may, in fact, have subsequently given credibility to the apparently incredible.

          2. doublelayer Silver badge

            Re: Stop using that phone

            That's well and good. However, that doesn't seem to be the reason for demanding this data, as there were plenty of cases mentioned in the article where they already had the evidence they needed. It also doesn't seem an appropriate reason for demanding all data on a phone. So you've described a real problem that I think is quite important, but I don't think it is relevant to this situation.

            1. Citizen of Nowhere

              Re: Stop using that phone

              >there were plenty of cases mentioned in the article where they already had the evidence they needed

              This. There really is no excuse for blatant trawling, retention and divulgation (including to suspects' lawyers) of personal data, backed by intimidation of alleged victims (we may not prosecute if you do not let us take a phone dump and do what we like with it).

            2. Cederic Bronze badge

              Re: Stop using that phone

              "evidence they needed" of what? Evidence needs to shed light on a situation, including evidence that demonstrates the innocence of the accused.

              Relying on a complainant to provide only the data they deem relevant is inherently flawed and pretty much guarantees justice will not happen. Alison Saunders has much to answer for.

      3. Cederic Bronze badge

        Re: Stop using that phone

        The changes were made due to the number of unsafe prosecutions in which a false rape accusation victim was not only forced to prove their innocence but had the evidence they needed to do so hidden and withheld from them and their lawyers.

        I fully support justice for victims of crime but that has to include the ones society tends to deem disposable.

      4. Mark 65

        Re: Stop using that phone

        This is positively Orwellian

        I read this bit

        The National Police Chiefs' Council (NPCC) instructed cops to stop seizing phones under the Police and Criminal Evidence Act 1984

        and thought "Police and Criminal Evidence Act 1984", are they taking the piss?

    4. don't you hate it when you lose your account

      Why should I stop using my phone

      This is crazy. I'm at a loss how it can be even defended as fair never mind legal. What next, if I'm mugged in the street the police refuse to investigate until they search my house.

    5. Chris G Silver badge

      Re: Stop using that phone

      Using a phone in any reasonable way that you want is a right. The police don't have a right to your phone data and anyone asked for it should refuse and complain officially to the police, the Home Office, their MP, GDPR and anywhere else they can think of. This has far less to do with investigating a given case than simply fishing and the plod's obsession with gaining as much data about everyone as possible.

      Fuck 'em! They are public servants not the other way round.

      1. Doctor Syntax Silver badge

        Re: Stop using that phone

        Just stop to think about this a moment.

        If someone were to wrongly accuse you of something would you want the police to ensure you were treated fairly? Even if that involved a search of your accuser's phone?

        1. doublelayer Silver badge

          Re: Stop using that phone

          Yes and no. Fine, I'll insert them into your sentence. I would [yes] like to be treated fairly but [no] not by requiring seeing my accuser's phone. If they think they need that, they can ask for it. If they think there is data on the phone that reveals a false accusation, they can get an order requiring it. If I am in fact guilty, they should be going after me rather than my victim. Similarly, they should consider me innocent unless proven guilty in this situation, as well. False accusation is a problem, but there isn't an easy solution. Finding a way to pressure victims in violation of their rights doesn't really stop the issue of false accusations. It may seem that way, but what it really does is destroy the rights to privacy and convince victims that law enforcement isn't going to help them. Both of those things are bad things.

    6. JLV Silver badge

      Re: Stop using that phone

      Ah, yes. Don’t use a phone in order to avoid rape.

      That makes a lot of sense, to you?

  2. Commswonk Silver badge

    Meanwhile...

    Overall detection rates plummet to a new low.

    1. Halfmad Silver badge

      Re: Meanwhile...

      Meanwhile the rates of actually solving crimes.. have been stolen.

  3. nematoad Silver badge

    Not an option I'm afraid.

    I don't have a mobile phone so does that mean that I can never report a crime committed against me?

    If I had a phone and some police snoop demanded access to it I might have to think about granting access, but as I don't then basing any investigation on producing something I do not have makes a mockery of any rights I might have in obtaining an outcome on my complaint.

    That's just plain wrong and looks like a fishing expedition is of more interest to the police and CPS then actually going out and trying to solve the case.

  4. Anonymous Coward
    Anonymous Coward

    "Leave it at home."

    Kinda missing the point of a mobile phone ain't ya?

    1. phuzz Silver badge

      Wait, maybe that commenter was my dad!

      He rarely remembers to take his phone with him, and if he does it usually isn't charged.

  5. JaitcH
    Meh

    You Can't Beat A Burner Phone - Or Pulling All Chips From Your Cell Handset

    I cross international borders frequently but my usual comms have no chips (SIM or memory) and I run the battery down. I also carry a fully working unused burner (basic) cell handset. I run a reset on my satphone.

    The Brit Border Bods or their friends in the USA (the nosiest) and Canada take the burner and look distinctly disappointed. Australia is increasing it's cell surveillance. If they push for any other devices, they can check the other devices and they will remain disappointed. On my smart phone they will find a few old movies, nothing to interest them. Remember, lying to US Federal officials is a felony.

    China has a new program of grabbing cell handsets and they are surreptitiously loading ghost software that 'spies' on your cell activity including GPS locations.

    1. Anonymous Coward
      Anonymous Coward

      Re: You Can't Beat A Burner Phone - Or Pulling All Chips From Your Cell Handset

      I don't know the details of your specific circumstances, but do you not worry that your behaviour actually makes you look more suspicious? If I was checking you coming through my security checkpoint, and the absence of any digital footprint looked like you'd actively concealed/hidden/destroyed data would just make me more curious as to what you were up to, and what nefarious activities you might be hiding.

      1. Jellied Eel Silver badge

        Re: You Can't Beat A Burner Phone - Or Pulling All Chips From Your Cell Handset

        If I was checking you coming through my security checkpoint, and the absence of any digital footprint looked like you'd actively concealed/hidden/destroyed data would just make me more curious as to what you were up to, and what nefarious activities you might be hiding.

        Absence of evidence shouldn't be probable cause.

        I'm kinda old-fashioned, so I use my phone for making & receiving phone calls, and the odd text. I don't really use (anti)social media, and if I'm travelling on business, may travel with a clean laptop, or just presentations/supporting materials I need for that trip. If I need confidential, NDA'd or restricted docs, I'll manage those via a VPN. That's more to do with risks of laptops being lost or stolen because that's probably far higher than any risk of industrial espionage via border security.

        When I go through customs, if I'm asked about the purpose of my visit, I'll tell them it's either business, or pleasure, and I've yet to have any problems*. I've also seen a few reality TV shows showing the work of border security & customs, sometimes showing officers asking people to explain why they've got emails regarding their new employment when they're travelling as a tourist.

        *Beware leading questions. Like if you say "I'll download everything I need via my VPN", I guess you could be asked to fire that up. If you say "from the office's secure network", they can't.

      2. JohnFen Silver badge

        Re: You Can't Beat A Burner Phone - Or Pulling All Chips From Your Cell Handset

        "and what nefarious activities you might be hiding."

        If I were engaged in nefarious activities, I'd be sure to have a false electronic "identity" just to avoid that sort of suspicion.

        But I'm not, so I'll accept the risk of any increased scrutiny that may result from my practice of minimizing my attack surface.

      3. simonlb

        Re: You Can't Beat A Burner Phone - Or Pulling All Chips From Your Cell Handset

        Just because there's a minimal digital footprint does not automatically mean someone is up to something and it's no different to someone who doesn't use any social media.

        Or another viewpoint would be if you visited the home of someone who actively practices minimalism and has very few items in their home: when you visit, it looks odd because you expect photos, ornaments and other stuff to just be there in the open and visible, but it isn't because they've found they can either live without all that stuff, or they've curated it and it's stored somewhere but readily accessible if required. It may seem weird but it isn't really.

    2. Hans Neeson-Bumpsadese Silver badge

      Re: You Can't Beat A Burner Phone - Or Pulling All Chips From Your Cell Handset

      China has a new program of grabbing cell handsets and they are surreptitiously loading ghost software that 'spies' on your cell activity including GPS locations.

      I'll bear that in mind....if their masterplan involves building a list of cell towers near pubs and curry houses then my phone will be their #1 target.

    3. Anonymous Coward
      Anonymous Coward

      Re: You Can't Beat A Burner Phone - Or Pulling All Chips From Your Cell Handset

      "China has a new program of grabbing cell handsets and they are surreptitiously loading ghost software that 'spies' on your cell activity including GPS locations."

      Citation needed

  6. Chris the bean counter

    Police in impossible position

    The data in the phone is not labelled with the criteria "specific and limited to the information relevant to the crime" as a search field.

    The person who made the demand that search be limited "specific and limited to the information relevant to the crime" ? Needs to explain how that can practically happen.Otherwise they are not a fit and proper person to be involved in policy development. They are a waste of space

    1. Jon 37

      Re: Police in impossible position

      The reason for this policy is that people were having consenting sex and then deliberately and maliciously making a false rape allegation. In several cases, the complainant's phone had evidence where they were arranging to meet the defendant for sex, or they were bragging to their mates that they'd made a false rape allegation.

      This led to innocent people being publicly accused of being a rapist, and having a trial hanging over them for a year or two, and then the case falling apart at the last minute.

      So, any contact between the complainant and the defendant is relevant.

      To a first approximation, search the phone for calls/texts/emails/chats sent or received from 2 weeks before the alleged rape till 2 weeks after the alleged rape, and also for any photos or videos taken during or immediately before or after the alleged rape. That should be enough to detect those cases, and is easy for a computer to do, limits the privacy impact on genuine victims, and reduces the amount of useless data the police have to look at. And in cases where the complainant is under-age (the article mentions a 12 year old), consent is not a defence so there's no need to search the phone at all.

      1. Doctor Syntax Silver badge

        Re: Police in impossible position

        In general you're spot on but in the case of the 12 year old it might have shown grooming by the accused or others and been significant for sentencing or bringing more cases to light. Without knowing the circumstances of the case it's not possible to say it was wrong.

        1. Graham Cobb

          Re: Police in impossible position

          If the child indicated there was grooming, or there was some other evidence of grooming, then fine, look for that. If there was reasonable suspicion, but not evidence, then the victim should be asked specifically for extended consent to search the phone for that (for example, restricted to communications to/from the accused, or maybe extended to a longer period).

          But the police shouldn't be going fishing. There should be absolutely no download of anything without a record of a specific, and justified, item for which they are searching and with appropriately limited search criteria. Under no circumstances, unless the victim is themselves accused of a crime, should data be passed to any other agency (inside or outside the country) or retained.

          The rules which apply to the ordinary person, which require search warrants, reasonable suspicion, etc must apply, a fortiori, to a victim.

          1. Doctor Syntax Silver badge

            Re: Police in impossible position

            "The rules which apply to the ordinary person, which require search warrants, reasonable suspicion, etc must apply, a fortiori, to a victim."

            Yes. But once an accusation is made there are two potential victims. Anyone properly investigating such cases has to at least consider the possibility of a false accusation for the simple reason that it happens.

            It's a long time since I was involved in such investigations so it's possible that things have changed but my experience was that there were a few cases which were self-evidently false and a few that were self-evidently genuine and a lot that were somewhere in between. I for one wouldn't have wanted to be part of a miscarriage of justice either way. I think it's probably one of the thorniest areas of criminal investigation. Every case requires thinking about. I'd certainly hate to be on a jury in such a case but the jury should have the best and fullest evidence before it.

        2. doublelayer Silver badge

          Re: Police in impossible position

          And it isn't wrong if they say there could be useful evidence and ask for it. What is wrong is saying "We will have to take all the data on your phone without any limits and give it to anyone we feel like and unless you agree we just won't be helping you at all because that's not our jobs". I think most real victims would accept having the relevant information sent to the police quickly. If there isn't information on their phones, that doesn't mean the crime didn't happen, and if they value the privacy of unrelated information, that doesn't mean the crime didn't happen.

      2. JohnFen Silver badge

        Re: Police in impossible position

        "the complainant's phone had evidence where they were arranging to meet the defendant for sex"

        Such evidence isn't really evidence against rape, though (all by itself, anyway). You may have changed your mind about the sex after meeting up. Consent for sex can be withdrawn at any time.

        1. Jon 37

          Re: Police in impossible position

          It's true that consent can be withdrawn. If the complainant says "I agreed but then changed my mind", then before-the-event phone evidence is probably not relevant.

          But if the complainant says in an interview "I never agreed to sex", then there is evidence found that they DID agree to meet up for sex, then you just caught the complainant in a lie and that would discredit their statement. If there's no other evidence, that would cause the case to collapse.

        2. Doctor Syntax Silver badge

          Re: Police in impossible position

          "Consent for sex can be withdrawn at any time."

          All too often one of the questions for the investigator was when was consent withdrawn - after the event?

      3. eldakka Silver badge

        Re: Police in impossible position

        In several cases, the complainant's phone had evidence where they were arranging to meet the defendant for sex,

        At which point the defendant should be able to provide their phone with the text they sent. At which point the police then might request access to the victim's phone to confirm that the victim participated in that conversation.

        Also, that proves absolutely nothing.

        Sure, maybe the victim did agree to meet up for sex.

        But once they met in person they changed their mind and declined sex, which the accused ignored and proceeded to have sex with a now unwilling partner.

        The fact that an arrangement to have sex was made is irrelevant as to whether a rape occurred or not.

    2. Killing Time

      Re: Police in impossible position

      I struggle to see a circumstance where a genuinely aggrieved victim would refuse the opportunity to provide evidence to support their case.

      Even in sexual crime cases, the arguments seem to be very weak as those I have heard put forward where past behaviour could be construed as current behaviour is a pre judgment of what is evidence, this is equally prejidicial to the accused.

      It's always been the investigative and judicial authorities role to decide what is evidence. I'm all for privacy but there are limits, is this one?

      1. Jon 37
        FAIL

        Re: Police in impossible position

        This isn't just "provide evidence to support your case". This is "provide us with a record of all your social interactions for the last several years, including any nude selfies of yourself or your partners, private chats with girl/boyfriends including "sexting" and discussions of your sex life and/or your most private fantasies, those photos you took of you illegally trespassing in that abandoned building to take cool photos, your photo of your mate smoking a joint, your private chat with your mates where you said things that would be very embarrassing and/or ruin relationships with friends/family if they came out, that chat where you were bitching about your job/boss that would get you fired if they saw it, etc. Oh, and you have to agree that we can use them to prosecute you or your mates for unrelated things, and we can give a copy of all this deeply private stuff to the person who raped you, or we won't do anything about you being raped".

        There is a huge amount of private stuff on the average person's phone, which is completely unrelated to the crime in question.

        As I said in my other comment, it seems like it would be reasonable in some circumstances to do a targeted search of the phone. But a blanket trawl is excessive and completely unreasonable.

        (Now, if you *choose* to apply for a job with a security clearance, then it's fine to require a complete investigation of the phone in that case. You chose to apply, and chose to accept the additional scrutiny that is required to get that job, and could have chosen not to apply if you thought the scrutiny was unacceptable to you. But people don't choose to be raped).

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        2. Killing Time

          Re: Police in impossible position

          None of your fears regarding the contents of your phone are a particular concern for me, I have a digital imprint stretching back to the Nineties ( if you include old email accounts etc) and while I wish privacy there is nothing in my past photos or communications I am ashamed of. I suppose that is something that separates us and shapes our viewpoints.

          I can see that you could be ashamed if certain aspects of your life were made public but if you were to bring charges against someone and in doing so denigrate their reputation you would have to overcome that shame and stand some challenge to your character, surely you see that as a reasonable outcome?

          Of course, as you are concerned about what is reasonable,I'm sure you would agree that if the accused is required to supply phone data then so should the accuser or else there is an immediate bias and an incentive to be an accuser. A cynical criminal could commit a crime, immediately make an accusation and enjoy the protection afforded a victim.

          Not really sure what your point is regarding job applications when it would be so easy to spoof that process by submitting a false phone but I agree no one chooses to be raped. Just as no one chooses to be falsely accused.

          1. doublelayer Silver badge

            Re: Police in impossible position

            Nope. If there is a situation where there is data, and the police need it because they have a reasonable suspicion that it can help solve a crime, they can get it. It's called a warrant and we've spent a lot of time working out how to protect privacy and solve crimes at the same time. If I accuse you of having stolen my stuff and having it in your house, but I'm lying because I'm actually storing stolen things in my house, the police can still get a warrant to search my house. If they have reason to believe I'm telling the truth about you also being a thief, they can get a warrant to search your house.

  7. Fat_Tony
    Facepalm

    I'd like to report a data breach

    Me: Hi, someone appears to have stolen all my data and stuff

    PC Plod: No problem, fill in this form, hand over your phone and we'll get cracking on it

  8. tiggity Silver badge

    Dubious

    The police / CPS do seem to try and stop rape prosecutions succeeding - they have plummeted recently.

    Lets assume a case of actual rape with male attacker, female victim (so I don't need to pepper text with alleged & gender agnostic pronouns everywhere)

    Any evidence of communications between rapist and victim would be available via attackers digital footprint so no need for victims data.

    Main beneficiary would be rapist defence tea as if victim phone data showed they used tinder etc, then you could bet defence team would do a "shes a slut, asking for it" character besmirching attack - the sort of thing that deters lots of victims from going through with prosecution as, unless they have the lifestyle of a nun r are young., there's normally some degree of sexual history that a nasty defence can use (it takes tremendous courage for many women victims to endure the character assassination that often occurs in rape trials)

    1. LeahroyNake Bronze badge

      Re: Dubious

      It's not that hard, I will edit for you...

      'Lets assume a case of actual rape with male attacker, female victim (so I don't need to pepper text with alleged & gender agnostic pronouns everywhere)

      Any evidence of communications between rapist and victim would be available via attackers digital footprint so no need for victims data.

      The main beneficiary would be rapist defence team as if victim phone data showed they used tinder etc, then you could bet the defence team would do a "they are a slut, asking for it" character besmirching attack - the sort of thing that deters lots of victims from going through with prosecution as, unless they have the lifestyle of a nun and are young, there's normally some degree of sexual history that a nasty defence can use (it takes tremendous courage for many victims to endure the character assassination that often occurs in rape trials)'

      I changed male to they in your third paragraph and removed women from your last one. Two corrections. That's a lot less effort than writing your first quite obnoxious paragraph.

  9. onemark03

    1. If some data are irrelevant, why are they collected; IOW, why blanket searches?

    2. Why go back seven years?

    3. And if the perpetrator has been identified via his DNA, why search the victim's mobile at all?

    1. Doctor Syntax Silver badge

      "And if the perpetrator has been identified via his DNA, why search the victim's mobile at all?"

      There are -or should be - two elements to prove a case. One is to prove an offence and the other to identify the perpetrator. This is an area where false allegations are not unknown. Anyone who has experience of investigating allegations of sexual offences is aware of the need to tread carefully in order to avoid serious miscarriages of justice.

    2. Jellied Eel Silver badge

      3. And if the perpetrator has been identified via his DNA, why search the victim's mobile at all?

      DNA doesn't show a crime occurred, just some close contact that allowed a transfer of DNA. Ask parents for more info. Maybe it's hairs & fibres that indicate proximity, or something a bit more intimate. But that evidence can't prove or disprove consent. If one party denies every knowing or meeting the other, it could be more damning. Other physical evidence may not help either. I once had the misfortune (and embarassment) of a trip to A&E and some stitches to fix up a tear to my.. little brain after a fun night of wild monkey sex. Bit of a shock to find out it was my blood, not hers. A&E staff were as always great, and explained it wasn't that an uncommon injury.

  10. This post has been deleted by its author

  11. steviebuk Silver badge

    Well that's not..

    ...gonna get leaked is it. When they are incapable of putting 2FA on their Twitter account then won't be long before they allow all that data to be exposed

  12. JoeySter

    There are two sides to this and it's important not to let either of those prevail. Those are...

    * People making false claims of rape wanting to get away with it and see a successful prosecution as well as avoiding getting into trouble themselves. Unfortunately it happens, at a higher frequency than people realise and it's complex because the more you dismiss that the more you both enable and entice it. There's a lot of pressure at the moment as well to treat accusations of sexual offences as guilty until proven innocent or "you will be believed" which means that potentially the only way to get someone off the hook, even if there's insufficient evidence to be sure of an offence is a very aggressive investigation to find any inconsistencies with the accuser's story.

    * Some police officers would love to go on a fishing trip through people's phones looking for any sign of criminal activity such as posting a meme on facebook, we don't have robust enough laws to protect people from the consequences of police having access so the only solution sometimes is access denied, at least without a contract setting out terms for data collection.

    It would actually be better to make regs to keep it out of the hands of the cops and instead have the defence (qualified defence only) gaining access (though potentially through police utilities, IE, police can still potentially possess and guard the evidence but simply not access it themselves). The problem with that is that it still escalates things and takes a little setting up to make sure access by the defence is within the bounds of what's necessary to mount a defence.

    The reason to give it to the defence exclusively (assumption prosecution has whatever) is simple, What they can actually do is already tightly restricted, that is, they can only mount a defence. It's not their position to prosecute, snoop or try to dig up crimes arbitrarily, only extract the material which is relevant to the defence. Retention period might be a bit tricky, though after the defence (trial) is done, there's technically no pressing reason to keep the data snapshot for a long period of time other than what the defence has extracted.

    1. Doctor Syntax Silver badge

      If - and it's a big if given some recent media reports - the prosecution are doing their job properly it shouldn't be incumbent on the defence to go to that trouble. It should never get to court.

      Ideally we would have a forensic science service as an arm of the court who could carry out such examinations as a neutral body. Unfortunately the privatisation of the service was a step in the opposite direction as labs now have to sell services to someone, mostly the police.

    2. Jellied Eel Silver badge

      Retention period might be a bit tricky, though after the defence (trial) is done, there's technically no pressing reason to keep the data snapshot for a long period of time other than what the defence has extracted.

      I guess if/as that's evidence used during trial, then it really needs to be retained because there's still the potential for appeal. And being digital, it's tricky to guarantee deletion or prevent abuse. I guess one option could be to 'seal' the files using 2FA, so one key held by the data custodian, the other by the defence or maybe CPS so it could be unsealed on appeal.. Or if there's a new investigation.

      I also agree with Doctor Syntax to an extent. Issue I guess is how investigations happen, so did a crime occur? And if yes, what evidence is there to show it did/didn't happen. Which I guess is also part of the fishing challenge, and outsourcing. If forensics return an image of a device, an office could look through for stuff created around the time the crime was alledged. But maybe that includes images, and scanning through those images shows something that also looks like a crime. If so, AFAIK, the police would have to investigate it*.

      And I think it's also one of those technology challenges. We generate huge digital footprints that may or may not contain evidence of illegality. Or maybe it contains evidence that seems innocent, but might be key in some other crime.. Which is where the AI genie comes in, ie if it's going to generate a crime report based on the data ingested, how reliable is it's training? So risk of FMR/FRR creating more work for investigators to validate. Or there's the issue of traffic & social network analysis. Phone numbers or movements may link to other crimes/investigations, but that would only work if the AI had access to multiple investigations, which comes with it's own large bag of nails.

      *Perhaps famously, a chap in NY who's been in the news. Florida police investigated, prosecuting authorities seem to have ignored evidence and arranged a light prosecution & sentence. And subsequent evidence appears to show that the accused didn't reform. But such is politics (allegedly).

  13. adnim Silver badge
    FAIL

    We all do what the fsck we like.

    Unless we are being watched.

    Unfortunately, these fsckrs are the watchers

  14. Anonymous Coward
    Anonymous Coward

    In the interest of balance may I point out that someone accused of rape was exonerated after the alleged victims phone was analysed:

    https://www.independent.co.uk/news/uk/crime/liam-allan-met-police-rape-accusation-false-evidence-disclosure-arrest-mistake-detectives-a8184916.html

  15. RunawayLoop

    Screenshots people!

    Unless you absolutely have to (like trying to cross a border) NEVER give the po-po (or any other authority) a blanket authority to search your phone.

    If confronted ask what information they are seeking and provide screenshots. Would work in the above situation but obviously not in all situations.

  16. JLV Silver badge

    Hard problems here.

    Rape is a special crime, in that much of the time there are no witnesses and perpetrators often claim that the sex was consensual. Plus, a lot of rapes involve acquaintances. The comparison to a burglary is specious: no one really expects victim-perpetrator communications there.

    I am all for sending rapists to jail for a long time. Given that, the accused need to be able to mount a proper defence. Sounds like the police needs to find appropriate ways to gather evidence, best by working with victim associations. However, a blanket ban on accessing phone records seems like it would severely prejudice the defence. Which, in certain jurisdictions could later even lead to overturning guilty verdicts.

    I’d love to hear from the other side, because this article seems very one-sided, even if I totally sympathize with the victim viewpoint. There’s got to a better way and there’s no reason a hell a victim’s phone data should end up in the defendant’s hands. But a proper defence needs to be allowed. somehow.

    The other thing missing is that comm records are going to be symmetric: can the police work, and to what extent, from the defendant’s phone, rather than the victim’s?

    1. Wandering Reader

      "The other thing missing is that comm records are going to be symmetric: can the police work, and to what extent, from the defendant’s phone, rather than the victim’s?"

      At the very least they need to be able to confirm the real source of the "Great shag last night, thx." text.

      If they examine the phone in more detail, they might also find an email "hey crew, I had a great time last night, I'll tell you guys all about it on Friday." That one isn't symmetric.

    2. Cederic Bronze badge

      Bear in mind that for 399 men out of every 400 any accusation of rape will be false. Putting it another way, every man posting on this article is at risk of a false rape accusation even though none of them will ever rape someone.

      This is why the processes need to be robust. Rape victims need support, empathy and justice. Victims of false rape accusations do too.

  17. Anonymous Coward
    Anonymous Coward

    "Despite being willing to hand over relevant information, police asked for seven years' worth of phone data, and her case was then dropped after she refused."

    How many people are still using phones that are 7 years old? If they wanted data from my phone they would get around 2 months worth as that is when I bought the new phone as the old one was dropped and broke so nothing was migrated over. I don't use any social media apps so there would be no information there. If they wanted calls, text logs then they could go to my network provider for those without ever needing the phone handset.

    But as someone who was falsely accused of making threats to kill over a phone a few years ago and was arrested and had my phone, laptop, PC, games consoles all taken away for investigation. Therefore I do think that in some circumstances it is right to ask for the complainant to be also asked to hand over theirs digital devices as well, if they would be relevant to the case.

    In my situation after having many months of worry, gossip from the neighbours after they saw me being arrested, loss of earning, having to buy new devices to replace the ones seized in the investigation, break down of a relationship. The police/CPS dropped the charges because they found no evidence. But the damage to my personal life and reputation had already been done.

  18. Peter Sommer
    Holmes

    Actual forensic procedures and the law

    A while back I wrote this detailed blog on the conflict between the need for digital evidence to be reliable and the need to respect privacy. It covers how digital forensics works in practice and the applicable law. https://bit.ly/2M7ERnt

    1. Jellied Eel Silver badge

      Re: Actual forensic procedures and the law

      Thank you for that. It was a great insight into the realities and legalities. I got a bit of my own during RIPA consultations that had some fascinating chats with officers over lunch. Disk images? Just Ghost it.. Then discovering that may work for me, but wasn't good enough in legal situations. I'd also been looking at hardware options because we supplied network appliances at the time, and Ghost was sloow. So I'd found some hardware devices designed for that purpose and ended up sharing that with PITO.. Which lead to some other interesting & generally informal consultations wrt Internet/investigation convergence.

      On the privacy side, to my mind the biggest risk by far is private abuse because that's far less rigorously controlled or legislated.

      (Oh, and I recognised the name from some of your previous work (Climategate.. wasn't me..) but wrt digital security, using link shortning/obfusticators can be a bad thing given it's not obvious where that link will take you. And I guess on an evidentiary side, given those links are temporary, could create it's own challenges)

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