European countries are increasingly using smartphone surveillance to investigate asylum seekers. As reported by Wired, in 2017 Germany and Denmark expanded laws enabling immigration officials to conduct such examination of people’s phones, while the UK and Norway have been carrying out the practice for years. In Germany, more than 8000 phones were searched in half a year after passing the powers. Last year, Austria passed a similar law.
In May 2018, the UK Home Office’s Immigration Enforcement authority made a payment of £45,000 to Cellebrite.
When asked by the audience in Morocco about legal frameworks governing its use, the Cellebrite salesperson remarked that new laws could either be introduced or existing ones amended to request people hand over their devices or be banned from entering, but that in any case there is usually “consent” from those seeking asylum.
Whether a country has a law in place or relies on “consent”, such forensic examinations are still highly problematic.
Under international human rights law, surveillance is an interference with the right to privacy, and therefore needs to abide by numerous principles designed to safeguard against arbitrary searches which undermine democracy and people’s fundamental rights. For example, any surveillance needs to be necessary and proportionate to the overall aim, and not be discriminatory based on characteristics such as race or birth origin.
This means that national laws requiring invasive surveillance measures can still be a violation of international law if they do not meet these standards.
Forensic analyses of smart phones are highly invasive. As noted in the landmark US ruling of Riley v California, an element of pervasiveness characterises mobile phones with data that can go back years and shed light on nearly every aspect of a person’s life. The US Supreme Court ruled that whilst data on a mobile phone is not immune from search, a warrant is generally required before such a search, even in connection with an arrest.
Privacy International’s work in the UK has demonstrated that even where certain statutes are relied upon to carry out mobile phone extractions, they are often woefully inadequate, date from long before the smart phone and do not deal with the specific and unique intrusions posed by use of these technologies.
When it comes to “consent”, it is more complicated than simply acquiring a person’s permission. As articulated under European data protection regulations, for example, consent is not freely given and informed if the entity requesting it is in a position of power over the individual, or fear adverse consequences so that they are not in a position to disagree. If a person fears being denied asylum and deported if they don’t hand over their phone, it does not constitute “consent”. It can hardly be said that consent is fully informed or unequivocal if the person concerned is unlikely to have full knowledge of the scope or types of information that may be extracted and retained.
Further, the assumption that obtaining data from digital devices leads to reliable evidence is flawed. If a person claims certain information is true, and there exists information on their smartphone suggesting otherwise, it is not evidence that they are lying. They may have swapped phones, they may have accessed certain sites or liked certain social media activity for a whole variety of reasons, and they may have been in touch with people whose name spelling appears on watchlists for a whole variety of reasons. And just because a person fleeing persecution from government forces does not want an agent flicking through their photos and messages, it also doesn’t mean that they are automatically lying.
For all these reasons, Privacy International is continuing to monitor and challenge the increasing use of such device extractions surveillance tools around the world, including at borders.
The use of such extraction tools, which are supposed to be used in exceptional circumstances, is part of a broader trend of aiming surveillance and other security technology at asylum seekers and migrants, often on scientifically dubious grounds. In Europe, this includes the use of technology which supposedly identifies if a person is lying based on their ‘micro-gestures’, a person’s origin based on their voice, and their age based on their bones.
The interjection of for-profit actors such as surveillance companies offering easy technological solutions into this highly complex issue is inherently dangerous.
Millions of people being forced to migrate because of war, persecution, and climate change is a call for urgent political and social action, not a business opportunity.