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Privacy has been a concern just about as long as mobile phones have existed. Whether it is the ability of law enforcement to listen in on phone calls or what happens to the personal information we share with big tech companies, increasingly individuals are concerned about who can access their data and why. If you are concerned about the police finding your text messages or chat history without actually having access to your phone, this is the right article for you. We look at some of the most common questions that we get in relation to police powers to access mobile phones and their contents.
A good place to start is the general police powers in relation to seizing and investigating mobile phone evidence. We’ve published a comprehensive guide on this topic, but this is what you need to know in summary:
Tapping a phone implies that the police haven’t used their ordinary powers of confiscation and seizure under PACE 1984 in order to obtain evidence from your device in person. Indeed, tapping implies that the police might be able to secure information from your phone without actually being in possession of it, and to get new and existing information while you are still using it.
The short answer is that, yes, the police can tap your phone. They have the ability to do so given the advent of complex technologies that allow the police to listen into phone calls, intercept text messages and other written communications, and copy data that is being transmitted to the cloud.
In order for the police to tap your phone, however, they must have a warrant from the court giving them this permission. Note that even if the police have stopped and searched you in the street, this is not a good enough reason for them to tap your phone in future.
Some exceptions to these strict privacy rules apply in suspected child sexual offence or terrorism cases. These are notoriously complex rules, and you should seek the advice of a solicitor immediately if you are concerned your phone might be searched under those exceptions.
Yes, the police may access your phone remotely, but they cannot do so without the requisite court warrant. Obtaining a court warrant means that the police will have had to justify such an intrusion on your rights to privacy. Usually, it is only possible for the police to remotely access someone’s phone in serious criminal cases, such as gang violence, terrorism, trafficking, and child sexual offences cases. That said, if the crime is serious enough, the police may be able to make a strong case for obtaining remote access to your phone, and if that is deemed to be in the public interest, a judge may well grant such permissions.
Generally speaking, it is very easy for the police to determine which phone a text message came from. Where the sender has a contract, typically they will have given their real information to the service provider, and thus it will be easy to find out who owns that phone and service contract.
Tougher situations arise with pay as you go (PAYG) phones that require credit to be added to them. While some people use online or text-based services to pay for credit with a bank card, and as such can be traced easily, others are more stealthy in their approach and instead use cash at a shop to top up their cards, which makes it harder for the police to identify the individual behind a text message.
Technologically speaking, it is relatively straightforward for the police to trace text messages. Like with phone calls, text message sending locations can be pinpointed through mobile phone tower triangulation (measuring the amount of time a signal takes to get back to the towers from the phone to determine the sending location).
The technologies that the police use to access your phone remotely can indeed give them access to text messages. Text messages that are being sent, or ones that are currently still on the phone, are typically easier to access. Those that have been deleted may still be accessible, but much depends on the technology of the phone’s memory and how long has passed since the message was deleted.
Note that the police can sometimes obtain text message records from mobile phone service providers, but this information generally only shows the date and time that a message was sent, the size of the message in megabytes, and the number to which the message was sent. It, generally, does not show the content of the message.
This answer depends on the phone, its memory, whether the message was deleted, and the phone owner’s service provider.
If the messages are still on the phone, the police may be able to access them no matter how long ago they were sent. If the messages were deleted from the device, it might still be possible for the police to obtain the messages (see below).
When you delete things from your phone, they are not actually ever deleted instantaneously. They are instead marked in the phone’s memory as being eligible to be overwritten with new data. If you have not yet produced any new data to override that old ‘deleted’ data, the message may still be retrievable.
If the data is no longer on the device, it might still be possible for the police to obtain the text messages from the phone owner’s service provider, but what can be retrieved, and how long after the fact, varies considerably. Some providers retain data only for a few days, whereas others might hold it for a few months. Likewise, some provide message content, whereas others will provide only the date and time that a message was sent, the size of the message in megabytes, and the number to which the message was sent.
Either by accessing the phone’s memory, or by retrieving available data from a mobile phone service provider, the police are able to download deleted text messages. Sometimes, these downloads will contain the actual content of the messages, whereas other times it will only notify the police of the fact that a text was actually sent through the provision of a date/time stamp and information on the recipient.
If the police have a warrant, they can request your messages from social media companies like Snapchat and WhatsApp, but generally the police will only be able to see your unread messages. This is because companies like Snapchat delete messages from servers as soon as the message is read, or they heavily encrypt them and do not possess the technology to ‘unencrypt’ them.
Snapchat deletes all messages from its servers right after the recipient reads them. Read messages are gone forever. This means the police can only get access to unread messages.
The police may go through your social media as part of an investigation into an offence. With open profiles, they do this without much difficulty, but where a profile is marked private or private communications (like direct messages) are subject to investigation, the police must obtain a warrant and the social media company then must provide the relevant information to the police, if they still have it.
No, police background checks do not look at your text messages, unless certain text messages were evidence in a prior investigation and still remain on police computers. In that case, those text messages could be used as part of the background check, but your current ones will not.
If you are concerned about the police obtaining information from your phone, whether in person or remotely, get in touch with the team at Stuart Miller Solicitors today. We have decades worth of experience in this field and have seen how the development of mobile technologies have infringed upon privacy rights over time.
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