Jonathan Custodio, The City

This article was originally published on Jul 10 5:00am EDT by THE CITY

Bronx District Attorney Darcel Clark wants to make it easier for her prosecutors to break into locked or encrypted phones confiscated from people after they’re arrested.

The borough’s top law enforcement official intends to purchase more licenses from digital forensics company Cellebrite, according to an “intent to award” notice in the City Record. The filing does not specify the number of those licenses, which would help investigators in Clark’s office break into tougher-to-penetrate Apple and high-end Android devices, or how much they cost.

The company offers products to “unlock devices with ease” and “extract more data” to “get the most out of your investigations,” according to its website.

Law enforcement officers are increasingly using proprietary technologies like Cellebrite’s to pull encrypted data from cellphones and cloud storage, often without letting suspects or defendants know.

Cellebrite’s basic services can extract text messages, emails, photos and videos. The company also offers premium services, only available to law enforcement, that can perform much more comprehensive full-file system extractions, which include pinning down locations and pulling data from third-party applications.

Cellebrite is a major digital forensics firm based in Israel that has multi-million dollar contracts with law enforcement agencies all around the world.

According to its website, the company has sold its technology to 6,700 public safety agencies in over 140 countries. Cellebrite’s clients have included Russian, Turkish and the United Arab Emirates governments, U.S. Immigration and Customs Enforcement and local police forces across the U.S.

Law enforcement agencies can pay to ship cellphones and other devices to Cellebrite for extraction or purchase a license to do so in-house, as the Bronx district attorney’s office is doing.

Licensed to Search

“The more licenses you have, the more phones you can crack,” Albert Fox Cahn, founder and executive director of the Surveillance Technology Oversight Project, told THE CITY. “Think about it like a license from Microsoft Word. If you have two computers and you want to run Microsoft Word on both of them, you need two licenses.”

Outside forensic specialists know that Cellebrite injects a code into the cellphone but don’t know exactly how it is able to extract sensitive information, including from encrypted applications like WhatsApp.

Aurora Maoz, director of the forensic practice group at The Bronx Defenders, told THE CITY the use of such technology amounts to a pricey invasion of privacy and another form of surveillance.

“The unlocking is only for law enforcement, and it’s highly secretive. Nobody knows how it works. Nobody knows whether it has the potential to alter data on the phone in the process and so it’s just kind of shrouded in layers of secrecy,” Maoz said.

Pedestrians user their smartphones while walking through The Hub in the South Bronx, July 5, 2023. | Ben Fractenberg/THE CITY

Patrice O’Shaughnessy, a spokesperson for DA Clark, told THE CITY in a written statement that the data retrieved from cellphones helps resolve cases. While she did not state how many licenses the office holds, she said “none of these tools are for surveillance purposes.”

“Our accredited digital forensics lab holds several licenses, which enables examiners to access evidence from cellular phones pursuant to a search warrant or consent. Evaluating the information obtained is important to supporting prosecutions, exonerating defendants, or identifying a level of culpability,” O’Shaughnessy wrote. “The office saves time and resources by performing the searches in our lab.”

According to Cellebrite, today’s crimes require what its tech can do. “It’s important for law enforcement to have Cellebrite technology, since nearly two-thirds of crime involve a digital component,” company spokesperson Victor Cooper told THE CITY in a written statement, citing a figure from the company’s own survey of industry trends. “Cellebrite technology is used after a crime has occurred for legal, lawful investigations, which require a search warrant or consent from the individual.”

Cooper said the cost of Cellebrite’s licenses are “dependent on several factors,” including an agency’s size, and a city’s population and crime levels.

Left in the Dark

While law enforcement must secure a search warrant from a judge to dig into someone’s cellphone, there is no requirement to notify suspects or their attorneys, or to list how many such warrants have been issued in a given jurisdiction.

“Search warrants aren’t given a whole lot of review by judges,” Benjamin Burger, a staff attorney in The Legal Aid Society’s digital forensics unit, told THE CITY. “District attorneys, police officers — they get a lot of deference.

“Judges will approve warrants that are massively over-inclusive, that allow district attorneys’ offices to seize all of this data that’s not relevant to the case,” Burger continued. “It’s like, how can [prosecutors] seize data that goes back years when [suspects] are accused of a burglary that happened yesterday?”

At least some judges, though, are reviewing those applications. On June 16, Bronx Criminal Court Judge E. Deronn Bowen issued what court watchers said was a rare public ruling rejecting the district attorney’s request for a warrant.

The case involved the phone of a person who filmed a police arrest that resulted in the seizure of firearms. Clark’s office had sought information including text and direct messages, call records, photos, voice recordings and location data, but Bowen denied it on the grounds that there was not “particularization and reasonable cause.”

“A cell phone also likely contains a wealth of knowledge about its owner,” Bowen wrote. “Access to a cell phone’s contents renders its owner’s life an open book through which even the most determinedly concealed secrets, fears, hopes, fetishes, lies, joys, worries, shames, bigotries and desires are laid bare.

“As the court is constitutionally proscribed from authorizing a search warrant absent particularization and reasonable cause, the People’s search warrant application to extract data from the target phone is DENIED,” the decision reads.

But while Bowen’s decision was published, many others are not — meaning defense attorneys simply don’t know how often warrant applications are rejected, said Burger.

“They’re not open proceedings,” he said. “So if they get denied, no one would know about it except for the DA and the judge.”

And when warrants are accepted, the public defender continued, “we’re kind of left fighting it after the fact, after the data has already been seized.”

Used by Many

The Bronx district attorney is hardly the only law enforcement agency using this surveillance technology.

The office of the Manhattan district attorney agreed to a $200,000 three-year contract with Cellebrite in 2018 that covered “software licensing and installation, training for select office personnel on the platform, and an agreed-upon number of phone cracks,” according to the tech news site OneZero.

As of April, the NYPD was set to purchase one year of the Cellebrite Premium Enterprise Package for $137,939.38, according to the City Record.

Defense attorneys, like those at Legal Aid, also use Cellebrite’s services to give their clients more autonomy and provide more transparency with their data, including text messages, photos, videos and contacts. That data then has a firm legal standing if the case goes to trial and could help support a client’s innocence by corroborating stories or alibis.

“We want to acquire that data in a forensically sound manner. It lessens the concern that any data has been tampered with, or that it’s been faked or altered or manipulated,” said Burger, adding that Legal Aid acquires information from their clients’ phones with their consent and passcodes. “If we’re going to go to trial, and we’re going to use part of an extraction, it’s already in a format that lends itself to being admitted in court, and that we can lay the proper foundation for admitting it into evidence.”

But they are at a disadvantage both because of the services that the company and others in the phone-cracking field only offer to law enforcement, and because they can hardly match the government’s purchasing power.

In 2016, the Manhattan DA spent $10 million on its digital forensics lab, while Legal Aid Society could only muster $100,000.

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