Why the FBI's seizure of the Democrat's cell phone could be his downfall.

New York City politicians are often embroiled in scandals, but even Ed Koch's former press secretary claims he's never seen anything like the “unprecedented” chaos Mayor Eric Adams is now facing. Last week, the FBI sent out squads to search the homes of five trusted Adams appointees: two deputy mayors, the schools chancellor, the police chief and a senior adviser to the mayor. [Update, Sept. 12, 2024, at 12:00 p.m.: Local news outlets have reported that the police commissioner will formally resign Thursday.]

Federal authorities have also seized those officials' personal communications devices, including cell phones and laptops. Their investigations include several cases pending against members of Adams' inner circle, the city's local news station reported. One of those investigations began in a very public way late last year, when FBI agents raided the home of Adams' top campaign fundraiser and confiscated “three iPhones and two laptops,” according to the New York Times. A few days later, the FBI intercepted Adams himself and grabbed two of his cell phones and an iPad; the mayor subsequently voluntarily turned over two more of his devices to the FBI, and all of the equipment was returned to him relatively quickly.

The ongoing case concerns allegations that Adams' campaign team worked with companies with ties to Turkey to collect illegal donations from Turkish officials. But there are three additionally Investigations that led to the recent raids.

One of them involves a consulting agency run by a relative of two high-ranking officials whose phones were confiscated. Another involves the police chief's twin brother, a former corrupt cop who owns a nightclub security company. His phone was also confiscated amid an investigation into whether he used his connections to ensure that certain clubs in the city were less closely monitored by police than others. The third federal case centers on Adams' senior adviser in charge of funding immigrant security services and “whether kickbacks were involved” in “city contracts in which he may have been involved,” according to the New York Post.

The government itself has not filed formal charges against these people, and they have all denied any wrongdoing. But the fact that the FBI has executed arrest warrants confiscate their phones and computers indicates something very serious.

Daniel C. Richman, a professor at Columbia Law School and a former federal prosecutor, told the New York Times, “Because you're constantly dealing with the police commissioner and his forces, you have to be really committed to a particular case and really believe you're on to something to seize his phone.” Other former prosecutors noted to the Times that “the upper echelons of the U.S. Attorney's Office would not have decided to execute search warrants lightly” and that “prosecutors don't usually take such steps unless they believe something nefarious has happened.”

In the meantime, Eric Adams and all of his high-powered friends have vowed to continue doing their respective jobs and running New York. For many of these people, however, it's going to be pretty difficult to live their public or private lives without their phones – and unlike in Adams' case last year, it seems clear that the FBI won't be returning his devices anytime soon. So what will they do in the meantime? How do you go about your daily life, work, and personal affairs when the feds have seized the devices and you have no idea when (or if) you'll get them back?

There is very little information available about what to do if the feds take your phone away, even though it is one of their most common tactics. I vividly remember all the mountains of evidence in the Sam Bankman-Fried trial that were gathered from witnesses' cell phones and laptops. I called Jessica Lonergan, a former assistant district attorney for the Southern District of New York and currently a trial attorney at the law firm Wilson Sonsini Goodrich & Rosati, to ask her all the questions I had about what happens when the feds take your stuff away.

The first thing to understand is that when agents request your devices, they cannot force you to give them the passwords/codes/keys you use to unlock your devices (assuming you have such options). This is thanks to the Fifth Amendment of the U.S. Constitution, which protects the transmission of this information as speech – but notwhat is important is to extend to biometric security.

“Sometimes a search warrant will also give law enforcement the ability to put your thumb on your phone or hold your face in front of the phone” to unlock it, Lonergan says. “There's a body of case law that says putting your thumb or face in front of your phone is not the expression of opinion, similar to how people can capture your fingerprints.”

Once this is achieved, the FBI must hold unlocks the phone and usually does so by changing the appropriate settings, perhaps with the help of some experts. “You need technicians whose job it is to keep the phone unlocked,” says Lonergan. “Until you can hook the phone up to software that downloads all the data, you need someone who knows how to use it.”

This brings us to another important point: How Federal authorities seize potential evidence from your phone or computer. “Typically, you don't search the device itself,” she explains. “Typically, they make a copy using a software program that allows you to search it.”

Federal officials will also retain legal experts to advise them on data transfers to ensure that confidential information about attorney-client communications is not breached. These other attorneys or prosecutors will review such messages and redact the relevant information.

But even if the phone is unlocked and all the data is copied from the device, authorities are unlikely to give it back to you because they may need access to it later. “The device itself is often the original evidence, not the copy,” Lonergan says. “Also, you may not have all the tools to search the device initially, and then get them later.” Because of this, lawyers for the clients in question face a “pretty heavy burden” in convincing officials to return the devices before they're done with them.

If you have to go without your phone for that long, guess what? You'll probably just have to buy a new one. But don't worry – the government will provide a whole other Search warrant for the replacement phone if they want one, provided they have reasonable grounds to suspect that you will continue to commit crimes using the new device. If that's the case, you could have serious problems beyond simply missing your phone.

Oh, and by the way: If, for example, you work for a mayor who is under investigation by a federal investigative agency and you have reason to believe that you could be involved in the dirt, you should not Try to remove anything negative from your backlog. “There's rarely just one copy of anything digital,” says Lonergan, pointing to communications servers, other people's inboxes and floating screenshots that may contain the messages you deleted. The could get you in additional trouble, possibly for obstruction of justice. And yes, if you find yourself in such a situation, you shouldn't be surprised if the government wants your digital communications.

“Digital electronic evidence is incredibly powerful – I say that both as a defense attorney and as a prosecutor,” says Lonergan. “It is used in almost every type of Case.”