Department Stores, Computer Forensics, and the Private Police
The September 1st issue of the New Yorker includes a fascinating article (not yet available online, but here’s the abstract) by John Colapinto about the high-tech, mini-police departments being set up by department store chains to catch shoplifters. The article, which focuses in particular on Target, veers for a brief moment into one of my areas of interest–computer forensics. Target has hired a “senior computer investigator” named Brent Pack, a former Army computer crime investigator who helped analyze the Abu Ghraib photographs. Why does Target need a computer investigator? Mr. Pack
analyzes digital storage devices seized from suspected retail-crime gangs–BlackBerrys, photo memory cards, cell phones, business servers, and desktop computers. . . . At the moment, Pack was analyzing a hard drive seized by the police in a phony-check-writing operation that had victimized Target stores. “I’m going through here and looking for any evidence of check-writing software on any of their hard drives,” he said, pointing to the computer screen, which showed a JPEG of a blank check
Is it proper for the police to delegate its forensic work to Target? The FBI agents I used to work with as a DOJ computer crimes prosecutor kept a tight leash on the data they had seized and were reluctant to share data with state and local cops, much less private parties. They justifiably worried about ensuring that non-FBI analysts were staying within the scope of the warrant, because courts have suppressed electronic evidence obtained outside of the scope of the warrant and have even thrown out all of the evidence obtained if the warrant was executed in flagrant disregard of its terms. I’m not saying that the use of a third-party forensic analyst should automatically result in a flagrant disregard ruling, but it will invite scrutiny.
And even if one can justify the use of private forensics specialists generally, shouldn’t the police refrain from giving 500 gigabytes of personal information to victims of crimes? Because victims–even corporate victims–have a strong incentive to solve the crimes committed against them, might they not feel more pressure than a cop to look beyond the scope of warrants, peering deeply into the private lives of data owners?
I am even more worried about a much more troubling possibility: Is Target seizing cellphones and laptops from suspected shoplifters? Discussing another, anonymous store, not Target, Colapinto describes how suspected shoplifters get hauled into interrogation rooms and questioned at length by former law enforcement agents. In addition to this, are store security personnel frisking suspects and seizing electronic devices? I can understand how a department store might be entitled to engage in a limited search to look for its stolen property, but does this justify the seizure, retention, and subsequent analysis of cell phones and laptops?
Reading this Article kept bringing me back to David Sklansky’s excellent article, The Private Police, 46 UCLA L. Rev. 1165 (1999) (abstract). A decade ago, Sklansky traced the rise of private police forces, focusing in particular on neighborhood patrol services starting with Pinkertonism in the 1800’s. He noted that as these entities play a greater role in policing society, this might give rise to the kind of invasions the Fourth (and Fifth and Sixth) Amendment was intended to prevent. If Target is seizing cell phones from suspected thieves–and I must stress that it is not clear from this article that they are–it realizes Sklansky’s fears.