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Jul 27 2014   11:55PM GMT

Why the ‘Hard Drive-Sniffing Dog’ Should Scare the Crap Out of You

Sharon Fisher Sharon Fisher Profile: Sharon Fisher

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More than one person thought it was from the Onion: Police have trained dogs to smell out child pornography. But the truth is no laughing matter.

First of all, the dogs can’t smell pornography, child or otherwise. For heaven’s sake, writers. Have some credibility.

What the dogs (publicized in Connecticut and Rhode Island, thus far) have reportedly been trained to do is smell out storage devices, such as hard drives, memory cards, and USB sticks. Similarly, dogs have also been trained to find cell phones in prisons. And in response to media pirating, dogs were trained in 2006 to find DVDs and other recorded media, which the police would then seize and search and determine whether they were legal.

So the “pornography-sniffing dog” works like this: Police think a perp has child pornography on storage devices, bring in the dog, the dog finds storage devices “hidden” in a suspicious way, and that gives the police probable cause to seize the storage and search it. Because after all, if there was nothing creepy on it, why’d you hide it, punk?

(Slashdot commenters had fun with this story, suggesting ways to defeat the dog. “Get a lot of old flash drives, sd cards, and the like, the old super cheap ones of course, and stick them everywhere,” writes one. “Under the carpet, taped to the bottom of the drawers, in the hem of the curtain, etc. After 30 or 40 of them, somebody is going to get sick of playing that game, and it might be the dog.”)

Stipulated: child pornography is bad, and we don’t want people to do it. Stipulated also, most police officers and prosecutors genuinely want to just catch bad guys and be on the right side of the law. That said, we’ve already written about how child pornography seems to be a Get Out of the Fourth Amendment Free card for some people. And this is a particularly egregious example.

Let’s start with the fact that drug-sniffing dogs, from which this is the logical extension, and their handlers have been implicated in some pretty interesting Fourth Amendment cases. In February, 2013, the Supreme Court ruled that searches based on using drug-sniffing dogs was legal even if what was found wasn’t related to what the dog detected. (Though in more recent cases, the Supreme Court has ruled that home searches, specifically, based on a drug-sniffing dog are illegal.)

“The U.S. Supreme Court has given police ‘probable cause’ to search your vehicle if a police dog detects drugs, typically by sitting, digging or barking,” explains the Las Vegas Review-Journal in an extensive article about drug-sniffing dog flaws. “That is an extraordinary power — officers working without dogs need ‘a reasonable belief that a person has committed a crime’ for such searches. Mere suspicion is not enough, and criminal cases resulting from searches that don’t meet the ‘probable cause’ standard can be, and are, tossed out in court.”

Drug-sniffing dog reactions consequently practically gives police carte blanche to search whatever they want. And note that it’s been reported that some 90 percent of U.S. currency has traces of cocaine on it.  For example, in numerous cases people traveling with large amounts of cash have had it seized by virtue of it being “contaminated” with drugs.

Some people have also criticized the fact that the storage-sniffing dogs are being trained and rewarded with food. “This is how he eats every day,” according to the dog’s trainer. But other dog experts say that training a dog with food is a bad idea. “Offering a sniffer dog food in exchange for a ‘find’ opens the way for an abuse of the system — if it’s hungry enough it will take food from anybody, not just its handler and therefore defeats the object of the search,” Maggie Gwynne, of Sniffer Dogs UK & International, told the BBC.

(On the other hand, one wonders what one of these storage-sniffing dogs would do in a room full of dog biscuits.)

There have also been cases where dogs’ “detection” of drugs appears to be based primarily on the reactions of their handlers, a sort of drug-sniffing Clever Hans. The police want to find drugs in your car? Son of a gun, the dog detects something — simply because the handler believes that it’s there.  That gives police probable cause to search. And chances are, something, somewhere in your car, has been touched by an illegal drug, sometime.

Now, for how many of us is that going to be true of having some sort of data storage device?

Cue the “Bad Boys” music.

So, now the cops have “found” your data storage, which they declare was “hidden,” and thus suspicious, which gives them the right to search it, and who knows what they might find during that fishing expedition?

Well, you say, not a problem, I’ll encrypt it. Except that, as we’ve seen — typically also under the aegis of “protecting the children” — people are being forced to reveal their encryption keys. The Massachusetts Supreme Court just ruled on another one of these cases last month, saying that because the suspect agreed that it was his computer and that he had encrypted it and had the key, he had given up his Fifth Amendment rights about self-incrimination.

What could be worse is if — after the storage-sniffing dog finds the microSD card under the dresser that the cat knocked off last month and the police decide that means you were hiding it — it isn’t encrypted but the police decide that it is and you’re lying. In some countries, particularly the U.K., people have gone to jail for refusing to reveal an encryption key. And as we’ve suggested before, it’s going to be an interesting legal case when someone goes to jail for refusing to reveal a key they don’t have.

11  Comments on this Post

 
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  • Ben Rubenstein
    This is very disturbing, and I can see any number of ways that an innocent person could get trapped due to this. Even if guilty people are caught, it might not be because of the dogs. As one Reddit commenter put it: "That's why they intentionally create long lines when entering US customs. They want you to sweat and let the dog do its work."
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  • CTblue
    I can speak from the perspective of a CT police officer. These storage sniffing dogs are not being used in the same capacity as a drug sniffing dog. If I am on a traffic stop, I merely need to articulate reasonable suspicion that there are drugs in order to use a dog. In the case of an electronics dog, it would likely only be used during the execution of a court approved search warrant. For the layperson, in CT a police officer bears a heavy burden of proof to rise to the level of probable cause required for a search warrant. The warrant application must be backed up with a very large amount of substantiating evidence, corroborated by two officers, that a specific crime has been committed before a judge will even entertain the idea of signing the warrant. This article inaccurately paints a grim picture of police randomly running through houses in search of electronics which is wholey inaccurate. I would have liked to read a story that referenced researched facts instead of taking the alarmist stance.
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  • Sharon Fisher
    I will take your word that that's the case in Connecticut. But these dogs are apparently being sent all over the U.S., according to my research.
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  • CTblue
    Your article paints with an all too broad stroke over two hugely different issues with equally different standards of proof. Reasonable suspicion which is required to use a drug dog roughly equates to the idea that I believe a person has committed a crime based on my immediate observations. The probable cause standard is what is needed after my investigation has completed and I can say with a 90-95% certainty that a specific crime has been commited. I can guarantee that one of these electronics sniffing dogs would never get near someone's house without a veritable mountain of substantiating evidence resulting from a painfully long investigation. Of course, I am only speaking from personal experience. I would be interested in reading your research source which allowed you to make the association between the use of drug dogs and electronics dogs? Do you have examples of these electronics dogs being used in the liberal cases such as you outlined?
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  • Sharon Fisher
    As I said, I'm happy to hear that's the case in Connecticut. I wish I could be so sanguine as to assume that'll be the case throughout the world. 

    Electronics-sniffing dogs are pretty new and we're just starting to hear about them, but there's certainly been plenty of cases where the use of drug-sniffing dogs give the appearance of being abused, as in the Las Vegas Review-Journal story I referenced. 

    I am and remain concerned about the way that child pornography is used as a lever to pry at people's rights. Nothing would stop law enforcement from using electronics sniffing dogs for *any* type of storage medium, not just ones containing child pornography. 

    Thank you for your service.
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  • cosmicaug
    At least in traffic stops, drug sniffing dogs can easily become a way to launder a hunch into probable cause. Additionally, as your referenced article points out, when experimental controls are stringent, these dogs can perform very poorly in studies.

    In fact, Sniffing dogs can outright be a tool for intentionally fraudulent searches. But that's not even where the problem lies. The problem lies in unintentional, subconscious signaling.

    I have little doubt that there probably exist high performing dog-handler teams probably exist (because that's what they are, teams --there are no good dogs and bad dogs as they need to be considered within the context in which they work) but I have no idea how you'd identify them (and how you would rate exactly how high performing they are) and, in any case, as long as the courts are doing nothing to discriminate the good from the bad the fact that reliable sniffing K-9 teams may exist is pretty much beside the point. Probable cause is not supposed to be about flipping a coin.
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  • cosmicaug
    Radley Balko writing for Reason and for The Huffington Post (yeah, I know) has covered drug sniffing dogs in a few articles.
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  • Sharon Fisher
    Oh, interesting, thanks! I'll check those out.
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  • GHogarth1
    CTBlue, While officers may obey the rules in your precinct (although, having lived in CT, I know that not all CT officers are pure as the driven snow), I would point you to the abuses in TX, NM, and FL: 
    • http://reason.com/reasontv/2014/07/29/drug-war-4th-amendment-anal-searches
    • http://reason.com/blog/2014/07/28/one-box-of-sudafed-over-the-line-florida\
    • http://reason.com/archives/2013/01/31/this-dog-can-send-you-to-jail/singlepage
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  • ToddN2000
    A lot of interesting points and issues. Living in MA and close to CT border I see a lot of these working dog type stories. So many way this can go bad.. Law enforcement just needs to be cautious and cover all bases. After all we are innocent until proven guilty....

    And as a side note...Where are these lazy cats? Why do the dogs get the hard work?....

    jk 

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  • carlosdl
    Very disturbing indeed.

    Things like that happen everywhere.  In my country there are several laws that were probably created with good intentions, but give authorities power they shouldn't have considering we don't have any guarantee that they will always be used for the right reasons or by the right people.
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