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Sunday, February 25, 2024

How Police Abuse Phone Data to Persecute LGBTQ People

The men approached 22-year-old Adham while he was waiting to meet a friend in Cairo in the summer of 2018. “They said they were investigative police, then grabbed my arms, took my ID, and searched my phone for same-sex dating apps,” Adham, which is not his real name, told NGO Human Rights Watch in 2020. The investigators “pressed” him to see the photos saved on his phone, as they searched his device for “evidence.” They then took him into custody.

Over the course of several days, police officers humiliated and beat Adham as part of wider persecution of the LGBTQ community. Egypt is one of 69 countries that still criminalizes same-sex sexual activity; officials charged Adham with “debauchery.” Although the charges against him were dropped after an appeal, they remained on his criminal record for months. During the ordeal police officers consistently turned to Adham’s phone looking for “evidence,” Human Rights Watch says. At one point, Adham said, the police officers threatened to plant fake photos on his phone.

Adham’s treatment at the hands of police is not unique. Across the Middle East and North Africa in particular, people’s everyday phone activity—including the apps they install, the photos they save, and messages they send—is regularly used as “evidence” to persecute them for being members of the LGBTQ community. Now new research has revealed the tactics and techniques police officers use to discriminate against LGBTQ people and gather data from their devices.

For the last two years researcher Afsaneh Rigot, supported by the NGO Article 19, the Berkman Klein Center at Harvard University, and the Cyberlaw Clinic at Harvard Law School, has examined how digital evidence “empowered” police to act on charges of homosexuality across Egypt, Lebanon, and Tunisia. All three countries use a patchwork of laws—often involving vague definitions of morality or debauchery—to persecute LGBTQ people. Rigot’s research, documented in the paper Digital Crime Scenes, involved 21 interviews with lawyers representing defendants in anti-LGBTQ cases and reviews of court documents in 29 cases, providing an unprecedented view of how prosecutors approach proceedings.

Police forces use WhatsApp and text messages, photo galleries, non-nude and nude selfies, and other data from their target’s confiscated phones to discriminate against LGBTQ people, the report says. Trans women and gay men are the most commonly targeted in the cases, although exact figures on the number of prosecutions are hard to establish due to a lack of transparency from courts and the judicial system. “Before the use of this digital evidence it was really hard to prove something like sexuality,” Rigot says. Prosecutors build up cases against people using whatever information they can find on their phones. “It's an identity that's being criminalized rather than actions,” Rigot says.

This “evidence” is often tenuous, at best; the report details a case where a message saying “I like you” was used as potential evidence to prove someone’s queerness. A contact saved as “honey” led to a police interview in another case. “They enter through Facebook Messenger [on confiscated phones] and take conversations and pictures,” says Ghassen Ghribi, a lawyer in Tunisia, who contributed to the study. “The police try to always have some pictures to make the proof more powerful.”

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All the lawyers Rigot interviewed said police take data from WhatsApp, and 22 of the 29 legal cases included photos—some explicit—from galleries in chats. “What it takes for individuals to get prosecuted is so little that even the presence of specific apps on their phone is incriminating,” says Rasha Younes, a researcher in Human Rights Watch’s lesbian, gay, bisexual, and transgender rights program.

Device Searches

When law enforcement officials need to get around your smartphone’s encryption, they often turn to sophisticated hacking tools such as technology from the Israeli firm Cellebrite. But police in the three countries included in the report don’t appear to use such tools. Instead those targeting LGBTQ people rely on low-tech tactics to access data on people’s phones and rely on physical access to the devices.

Street arrests, like that of Adham, forced phone inspections, informants, and police officials creating fake profiles on dating apps can all lead to law enforcement getting ahold of someone’s phone. “They are not that clever in technology,” one lawyer told Rigot. (All lawyers interviewed for the study were quoted anonymously to protect those who could face retaliation from law enforcement or government.) Law enforcement officials often obtain people’s device passwords or PINs during interrogations or interviews, the report says. They can then manually search through the phones, starting with dating apps and messengers. Police often use specific terms or keywords to look for what they want to find, Rigot says.

Around the world there are multiple documented cases of LGBTQ communities being targeted by law enforcement and other groups creating fake profiles on dating apps, such as Grindr. The cases are often similar: Officials create accounts using photos they have found online, connect with their targets, and chat with them to gather “evidence” or eventually arrange meetings with them where arrests can happen. Dating apps have been used for entrapment in India, Senegal, and Kenya. Cases reported in Egypt stretch back as far as 2014.

“I have received many complaints of the use of dating apps by police officers, for example, that create fake profiles with the purpose of entrapping persons,” says Victor Madrigal-Borloz, the United Nations’ independent expert of violence and discrimination based on sexual orientation and gender identity. The United Nations’ declaration on human rights includes the right to privacy; if authorities interfere with that privacy, Madrigal-Borloz says, they need a legal justification for doing so. In the cases Rigot studied in Egypt, Lebanon, and Tunisia, it did not appear that law enforcement obtained warrants for searching people’s devices.

Madrigal-Borloz says his office has received multiple complaints from around the world about people’s phones being taken without their consent. In many of these cases, “data is actually being accessed usually through menace or coercion,” he says. “That includes the threat of, for example, carrying out forced anal examinations in the countries where that practice is carried out.”

“The majority of evidence-gathering is illegal, because the consent of the accused person is not even asked. In many cases, they are forced to open their devices to be examined or directly opened if it is not protected by a password,” says Alaa Khemir, a lawyer and human rights activist based in Tunisia who contributed to the study. The report details cases in which LGBTQ people have visited police stations to report a crime against them and then, after questioning, became the target of police officers who suspect they may be LGBTQ.

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Digital evidence that’s gathered without a warrant is not easy for lawyers to exclude from the case, Khemir says of their experiences. “The right of fair trial is seriously impacted by those violations of privacy and personal information,” Khemir says.

Design Changes

Increasingly, countries that persecute LGBTQ communities are altering their legal approaches to cases. In Egypt, the report says, cybercrime laws are being used to prosecute queerness because of the “reliance on digital evidence.” In these cases, sentences can potentially include larger fines and harsher prison sentences. For instance, in June 2021, Egyptian courts sentenced TikTok influencers Mawada al-Adham and Haneen Hossam to six and 10 years in prison for posts allegedly against the “values of Egyptian society.”

Wholesale legal and cultural reforms are needed for some countries to stop criminalizing people based on their sexual orientation, but these take time. “There needs to be an introduction of affirmative laws that prohibit discrimination on the basis of sexual orientation and gender identity, including online,” Younes says. Until this happens, Rigot says, the world’s biggest technology companies can help reduce the amount of digital evidence used against LGBTQ communities by rethinking their product design processes. “These companies and technologies get created in contexts far removed from the context they end up scaling to,” Rigot says. “Little to no consultation is done to understand how these tools can be used against folks who are most vulnerable at risk or marginalized.”

Digital Crime Scenes lays out a series of measures that social media companies and tech platforms can take to improve the privacy and security of their products. These include: adding second PINs or passwords to apps to allow sensitive information to be locked away; not automatically saving photos to people’s galleries by default; using usernames instead of phone numbers, which can more easily be used to identify someone; and Snapchat style warnings that alert people to screenshots of conversations.

Some companies have taken steps to help protect people who may be at risk. Grindr made it possible to change its app icon to help protect people against others looking at their phone for “evidence” they are LGBTQ, and WhatsApp followed Signal in introducing disappearing messages. All of these changes make a difference, Rigot says, and not just for those who are vulnerable. “Centering development around the most marginalized may result in better tech for all,” the report concludes.


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