Athens City Council is considering an ordinance that would authorize the purchase of equipment enabling city police to screen seized technical equipment such as cell phones or computers in-house as opposed to sending them out for screening as has been done in the past.
Any such search requires a judge's signed warrant before it can be conducted, even if the suspect has already been arrested.
At-large City Council member Chris Knisely introduced an ordinance Monday night that would allocate a variety of funds, including $32,000 on City Hall brick chimney repairs and a $45,000 reimbursement to the city's Community Center for GoBus ticket expenses.
Also included in that ordinance is an appropriation out of the Athens Police Department's law enforcement trust fund of $17,000 to purchase "law enforcement software" that can be used to search cell phones.
"It will only be used for screening cell phones when it's been authorized by the judicial system via warrant," Knisely explained, "lest people be alarmed about it."
Some people did seemed to be alarmed about it, with several residents contacting The Athens NEWS pointing to the proposed appropriation, and one Democratic primary candidate for an at-large City Council seat, Michael Bart, holding a discussion about it on his Facebook page.
A motion to suspend the rules to pass the ordinance was briefly considered by council, as some members and Mayor Paul Wiehl expressed their desire to get the chimney repair going as soon as possible.
Fourth Ward member Chris Fahl, however, said that she was uncomfortable adopting the whole ordinance in an emergency reading.
"I understand about the bricks," she said. "However, I think that the police request was popped on us last week, and I'm uncomfortable. I'd rather amend the bit, the ordinance, you know, take one part out of it, (and) suspend that."
Wiehl said at that point that he didn't mind if council decided not to suspend the rules for the ordinance, so it now will get its full three readings.
Police Chief Tom Pyle said Wednesday that the purchase would be for forensic software that would allow the department to search the data on a cell phone pursuant to a valid warrant from the courts.
"Don't confuse that with snooping airwaves; that's not what we're talking about," Pyle said. "This isn't software to intercept phone calls or invade privacy. I would be very much opposed to that. Our department doesn't need anything like that."
What the software would do is allow the department to search a cellular device that had been seized after an arrest and only if a warrant were obtained first.
The APD for the past 10 or so years, Pyle said, has had an agreement with other law enforcement agencies to send a computer or cellular devise out to be searched for evidence after a warrant for such is obtained; however, they have not had the capability to conduct such a search in-house.
Such searches have been used, Pyle said, in cases of suspected child pornography, embezzlement, or various other crimes where digital data may provide evidence.
"Basically, we're talking about the same kind of software upgrade that allows us to do it on smartphones and cell phones," he said. Pyle provided as an example a situation where somebody is stalking someone else, and pursuant to a warrant, the police could use the software to gather evidence.
"Right now we coordinate with a state agency and it takes weeks and weeks and weeks," Pyle said. "What we're talking about is having the ability to do that here, which would expedite the investigation of these cases."
Pyle said the phone or device would have to be in police possession, and the software could not be used to monitor or check equipment remotely.
"I think the notion is there's some concern that we would snoop airwaves or intercept phone calls, and that's not at all what we're talking about," he said. "It's not like we can hack into people's computers or anything like that. It doesn't provide that capability, nor would I want that."
Pyle said that he does not condone hacking into computers or intercepting phone calls to conduct an investigation and considers that an invasion of privacy.
Under Ohio law, from state Supreme Court rulings, Pyle affirmed, even if somebody is arrested, police still need to obtain a warrant before they are allowed to search their cellular phone if it's suspected to contain evidence.
"Just because we arrest somebody doesn't mean we have a right to search their cell phone," he said. "We would have to go to a judge."
COUNCIL CANDIDATE BART, meanwhile, said that he is satisfied that the ordinance will get its full three readings as he sees the issue as something that needs to be discussed and considered thoroughly.
"I think there needs to be time for the public to give their input and for City Council to ask all the questions that need to be asked," he said Wednesday.
As one concern, Bart cited last year's ruling by the U.S. Court of Appeals for the Seventh Circuit Court in the case United States v. Mann where Judge Richard Posner issued the opinion using the "open diary" argument. This holds that if police can open a diary of an arrested suspect to verify his name and address and discover whether it contains information relevant to the crime, the same can be done with a cell phone.
"If that device is around, even if they say they won't use it, it may be legal for them to use it in any arrest," Bart said, pointing to some states where such software is available in every patrol vehicle. "Some cars in Michigan have been using them in traffic stops."
The Ohio Supreme Court, in 2009, ruled, "We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances."