Fri. Apr 16th, 2021

While consulting people on how to secure data, Darren Chaker has seen many ask if smashing a phone or computer will make the data unreadable. While it may make the computer inoperable, data still remains on the hard drive. It is common practice to extract info from hard drives that have been thrown out of winders, put into water, etc. However, when a hard drive is broken and unable to boot in the usual way options are available to create a mirror image of the hard drive and boot it as an external drive from a working computer. In a criminal investigation, police will need a data recovery program to help retrieve your data back if it was merely put in the waste basket and emptied without using a secure overwrite. This is done every day some place so breaking the functionality of the phone/computer means very little to retrieving the data.

Further attempting to destroy data may create more problems for the target of the investigation such as an obstruction charge and can also be used by the prosecutor to show ‘consciousness of guilt’ (i.e. you knew there was something illegal on the device you tried to destroy). However, if the computer, phones included, cannot be accessed due to encryption, it is difficult to prove obstruction if it cannot be shown the data was deleted. Not allowing access to a phone is not obstruction since a person’s right to prevent access to a computer is with the person’s Fourth and Fifth Amendment rights. Invoking a right cannot be used against a defendant. This includes refusing a request by police to ‘look’ at your phone to access it with facial recognition. See court ruling here.

The best thing to do (in my opinion) is encrypt your phone/computer, wipe it on a weekly basis so that unused or deleted data is permanently destroyed using a DOD approved algorithm (at least a 7-pass wipe), and if the police do bust down the door – simply invoke your right to speak with an attorney and decline to provide your password or biometrics. Of course, the best thing to do is do not things that may get your door knocked off the hinges.

In United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009), the court found what most of us know: “The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs[.]”). Darren Chaker forewarns, be careful for the smart cop who uses a ruse. For example, police show up at your door and say “Your ex-girlfriend said you sent her a bunch of threatening texts last night, but if I see you messages and do not see any such messages in your sent folder you won’t go to jail.” Knowing you are innocent you unlock your phone and the cop snatches it. One officer talks to you while the second scurries off and downloads the contents of your entire phone. Although you believed the officer would merely look at your texts to your ex-girlfriend, the reality is once you are being investigated for something else. If you fall for the ruse, whatever evidence you allowed them to gain is admissible.  Of course, do not believe because a local police officer shows up at your door wearing a city police jacket is truly a local cop. It is common for federal agents to have multiple law enforcement jackets from various city or county agencies to prevent suspects knowing the true scope and purpose of an investigation.

Understand, police are incapable of accessing newer iPhones.  Android encryption uses dm-crypt which,                 used the right way, can protect the device from law enforcement. The key in any event is to use unique passwords and turn off your phone if you believe police may pull you over. Doing this negates biometric access until the password is entered. Data encryption on smartphones involves a key that the phone creates by combining 1) a user’s unlock code, if any (often a four- to six-digit passcode), and 2) a long, complicated number specific to the individual device being used. Attackers can try to crack either the key directly – which is very hard – or combinations of the passcode and device-specific number, which is hidden and roughly equally difficult to guess.

However, for the security conscious, Darren Chaker recommends you download the contents of sensitive data weekly then scrub the free space with a high security algorithm. When needing to move data off the phone, if its sensitive – do not upload the data to the cloud since Apple and Google have access to the data. For iPhones use a USB drive to download content then upload to an encrypted folder on PC, then securely wipe your USB drive. For Androids, can use a USB drive or plug into a PC and the Android should appear as an external drive. Simply drag contents to an encrypted folder on PC. Of course, securely wipe the data from your phone. This practice is widely used not only by Governments, but also by corporations to prevent industrial espionage, and high net-worth individuals who value their privacy. As such, there is no reason why individuals who value privacy cannot use the same methodology to protect his/her data.

By Darren Chaker

For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, let me write a bit: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.

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