Dispatches from the Creation Wars

The ACLU of Michigan is demanding that the Michigan State Police turn over documents relating to a technology they possess that allows them to scan and copy a wide range of data from cell phones without the owner of the phone even knows they’re being searched.

A previous FOIA request confirmed that the MSP has such devices, but the state has not fulfilled a request for documents showing how often they have been used in the field. The ACLU explains the history of their requests:

Several years ago, MSP acquired portable devices that have the potential to quickly download data from cell phones without the owner of the cellphone knowing.

The ACLU of Michigan expressed concern about the possible constitutional implications of using these devices to conduct suspicionless searches without consent or a search warrant.

In August 2008, the ACLU of Michigan filed its first FOIA request to acquire records, reports and logs of actual use.

Documents provided in response confirmed the existence of these devices, but MSP claimed that the cost of retrieving and assembling the documents that disclose how five of the devices are being used is $544,680. The ACLU was then asked to pay a $272,340 deposit before the organization could receive a single document.

FOIA experts call this “financial stonewalling” — using exorbitant costs to dissuade the person or organization that made the request from going forward with it. But the law says that those costs can be waived if the release of that information is in the public interest — and it certainly is in the public interest to know how often and in what circumstances the police are using a device that can violate the Fourth Amendment at will.

“We should not have to go on expensive fishing expeditions in order to discover whether police are violating the rights of residents they have resolved to protect and serve,” said ACLU attorney Mark Fancher. He’s absolutely right.