Policing For Dummies: DOJ/Baltimore PD Edition

from the things-they-know-but-choose-to-ignore dept

Apologies to everyone in America. The Department of Justice can't fix what's wrong with the nation's police departments. It's up to those departments to make the changes and stick to them. There has to be a desire to change, otherwise all we'll end up with is better documentation of police misconduct and excessive force.

A police department has to fall pretty far before the DOJ is willing to step in. Consent agreements follow reports -- all of which can be described as "scathing". These follow DOJ investigations in which it's routinely discovered the officers employed by the police department either don't know the first thing about constitutionally-compliant policing… or just don't care.

Reason's Scott Shackford has read through the DOJ's consent agreement [PDF] with the Baltimore PD -- one that follows its extensive investigation/scathing report. In amongst all the new reporting requirements are passages that indicate Baltimore might be better off firing its entire force and hiring new recruits. The rot growing from within the department has destroyed everything, starting with the Constitution and working its way down to basic communications skills.

It's completely depressing that all of this is included in the consent decree.

The agreement includes things like requiring police officers have reasonable suspicion to detain and search people, and not engage in warrantless searches; only arrest people for suspicions of crimes (no really, this is explained); stop using "boilerplate" language in reports to explain reasons behind stops and searches; not engage in racial profiling; not use information they know is not true to justify searches or arrests; attempt to de-escalate encounters before using force; not use force to punish people for resisting or attempting to flee (what the rest of us refer to as "police brutality"); don't use Tasers on elderly people, pregnant women, and small children, or just to stop people from fleeing; use seatbelts or restraining devices on people being transported (remember this is all partly due to the Freddie Gray case); respect the rights of citizens to both criticize police and observe and record public police behavior without retaliation; not retaliate against people who file complaints against police conduct; and so many, many, many other things. A read through the consent decree feels like the documentation of how most citizens expect their police to behave already.

These are the things Baltimore's police must be told to do, under the color of law and with the threat of federal sanctions backing it up. This is all stuff officers already should know -- things they should have learned on their way to earning the right to be trusted with badges, guns, and power.

And in the middle of all the constitutional instructions, there's a whole lot of common sense -- like not retaliating in response to complaints. Or not tasing pregnant women, children, or the elderly. To be told this would be a slap in the face to a good police officer. When the department's full of "bad apples," however, basic instructions and handholding are apparently a necessity. The DOJ has to remind an entire law enforcement agency that they're public servants, rather than uniformed thugs.

A consent decree will follow the investigation that just wrapped up in Chicago -- and a report that may secure the Chicago PD the "Worst Cops in America" trophy it's apparently been trying to earn for the last couple of decades, if not longer. In it will be reminders that officers aren't allowed to haul suspects off to ad hoc "black sites" or use deadly force on people who don't pose a threat to officers or other citizens.

And in another decade or two, the DOJ will roll back into town and start the process all over again. There are very few officials willing to do the difficult, unpleasant work of changing law enforcement culture by rooting out those who have either engaged actively in the rotting process or stood idly by while it happened.

Filed Under: baltimore, baltimore pd, consent decree, doj, police

Baltimore PD Can Keep Tabs On The Entire City, Thanks To Privately-Donated Aerial Surveillance System

from the thanks-for-flying-Air-Baltimore dept

When all you have is repurposed war gear, everything looks like a war zone.

It's not just the Pentagon handing out mine-resistant vehicles and military rifles to any law enforcement agency that can spell "terrorism" correctly on a requisition form. It's also the FBI acting as a gatekeeper (and muzzle) for cell phone-tracking hardware originally developed for use in Iraq and Afghanistan.

The latest addition to the pantheon of "war gear, but for local law enforcement" is aerial surveillance. While this sort of surveillance is nothing new -- police have had helicopters for years -- the tech deployed to capture recordings is.

Bloomberg has a long, in-depth article on aerial surveillance tech deployed by the Baltimore Police Department -- all without ever informing constituents. Baltimore isn't the first city to deploy this repurposed military tech. The Los Angeles Sheriff's Department gave the same gear a test run back in 2014. The LASD also did little to inform the public about its purchase, claiming that people might get paranoid and/or angry if they knew.

Baltimore's acquisition of Persistent Surveillance Systems' 192-million megapixel eye in the sky also occurred under the cover of governmental darkness. The tech was given to the police and paid for by a private donor -- which kept the public out of the loop and any FOIA-able paper trail to a minimum.

Last year the public radio program Radiolab featured Persistent Surveillance in a segment about the tricky balance between security and privacy. Shortly after that, McNutt got an e-mail on behalf of Texas-based philanthropists Laura and John Arnold. John is a former Enron trader whose hedge fund, Centaurus Advisors, made billions before he retired in 2012. Since then, the Arnolds have funded a variety of hot-button causes, including advocating for public pension rollbacks and charter schools. The Arnolds told McNutt that if he could find a city that would allow the company to fly for several months, they would donate the money to keep the plane in the air. McNutt had met the lieutenant in charge of Baltimore’s ground-based camera system on the trade-show circuit, and they’d become friendly. “We settled in on Baltimore because it was ready, it was willing, and it was just post-Freddie Gray,” McNutt says. The Arnolds donated the money to the Baltimore Community Foundation, a nonprofit that administers donations to a wide range of local civic causes.

The cameras are able to capture activity across the city. The resolution may seem high, but the area covered by the cameras still makes individuals nearly unidentifiable. What it does do is provide a wide-angle look at the movements of these humans reduced to pixels by current tech limitations. Rather than just provide a closer inspection of certain areas, the scope of what's captured allows law enforcement to rewind their way through people's lives, seeing where certain pixels go and what pixels they interact with… and where those pixels go. The ability to trace movements backward can provide law enforcement with details on where criminal activities originate and where possible co-conspirators might be located. It also helps officers track down suspects who have fled from crime scenes.

While it's certain to provide some investigative use, it also gives the Baltimore PD an unprecedented overview of entire neighborhoods for it to peruse in hopes of discovering something that justifies its deployment. It expended zero manhours informing the public, however, before putting it to use. The BPD is already facing heat due to the unconstitutional deployments (multiple thousands of them) of its Stingray devices. Now it has another bit of questionable war tech in use and it's still refusing to discuss it.

Where the city stands in this approval process -- if there even was one -- remains a mystery. City officials aren't discussing the surveillance tech either. If there was any oversight of the high-tech donation, no records have surfaced.

The only party that seems comfortable talking about the surveillance tech is the person behind Persistent Surveillance Systems, Ross McNutt.

McNutt often says that when he stares into the computer monitors, the dots moving along the sidewalks and streets are mere pixels to him. Nothing more. If anyone else wants to project identifying features onto them—sex, race, whatever—that’s their doing, not his. Even as the technology advances and the camera lenses continue to get more powerful, he says, his company will choose to widen its viewing area beyond the current 30 square miles rather than sharpen the image resolution. He’s exasperated when his system is criticized not for what it does, but for its potential.

The potential is the problem. Surveillance systems like these are prone to both feature creep and mission creep. If they're already being deployed secretly, the chances for abuse move from merely "probable" to "almost inevitable." McNutt may be extremely open about his tech and its capabilities, every law enforcement agency that has made use of it has been the polar opposite. And when private donors skirt procurement processes and other red tape by purchasing surveillance tech for law enforcement agencies, a certain amount of accountability disappears.

If an agency feels it's counterproductive to gauge public sentiment before deploying more surveillance tech, the least it can do is keep them informed about upcoming changes. But the Baltimore PD did none of that. It simply took its expensive surveillance gift and put it to work.

Filed Under: 4th amendment, aerial surveillance, baltimore, eye in the sky, privacy, surveillance
Companies: persistent surveillance systems

Police Get Facebook To Kill Livestream Of Standoff Which Ended With Suspect Being Shot To Death

from the controlling-even-the-cameras-they-don't-own dept

A 23-year-old woman, and mother of a 5-year-old child, is dead. She was killed by police officers who came to serve a warrant for failure to appear charges stemming from a March 11th traffic stop. That this ever escalated to the point where bullets started flying is incomprehensible. Then again, much of what the woman, Korryn Gaines, did was incomprehensible.

Gaines apparently considered herself a "sovereign citizen," which meant she chose not to recognize whatever laws she felt weren't worth following -- like registering her vehicle, insuring it, and equipping it with valid plates. Instead, she chose to make plates of her own out of cardboard that made some sort of statement about her sovereign citizen status. The traffic stop on March 11th escalated into an altercation with officers, resulting in more charges being added to the traffic violations.

When the SWAT team arrived August 2nd, Gaines warned the officers she would shoot them if they did not leave.

At about 9:20 a.m., officers knocked on the door repeatedly with no answer, despite hearing a man and woman inside, as well as a crying child, Johnson said. When officers were able to open the door using a key, they saw Gaines sitting on the floor pointing a 12-gauge shotgun at one of three officers and a 5-year-old near her.

Courtney was quickly arrested after running out of the apartment with a 1-year-old boy. Then around 3 p.m., Gaines pointed her weapon at a tactical officer and said, “If you don’t leave, I’m going to kill you,” according to authorities.

At that point, officers fired one round and Gaines fired two rounds in return, Johnson said. Authorities fired their weapons again, fatally striking her. The child was also struck by a round during the exchange but did not sustain life-threatening injuries.

The twist here is that Gaines was livestreaming the standoff, right up until law enforcement asked Facebook to kill the stream. Facebook complied, and possibly the only record of the incident not controlled by law enforcement disappeared with it. The police issued a statement explaining their actions.

“Gaines was posting video of the operation, and followers were encouraging her not to comply with negotiators’ requests that she surrender peacefully,” a spokesperson for the Baltimore County Police Department said. “This was a serious concern; successful negotiations often depend on the negotiators’ ability to converse directly with the subject, without interference or distraction during extremely volatile conditions.”

While the assertions made here may be true, the fact that law enforcement can make third-party recordings disappear is highly problematic. While the full statement shows the Baltimore County PD has asked Facebook to retain the video as evidence and will be seeking a search warrant to access the recording, the fact is that the recording will now be in the hands of law enforcement, rather than the public.

If any video of the standoff was captured with body cameras, it will be a long time before it's made public -- if it ever is. While very few recordings are truly objective, the one recording of the standoff whose existence can be confirmed is now (mostly) gone. And the unanswered question is whether or not the situation would have been handled differently if the officers knew the public was watching.

Facebook's compliance with the request is understandable. I'm sure it has no interest in becoming a live portal for police shootings. It similarly vanished away another live video of a killing by a police officer in Minnesota a few weeks ago, resulting in it harvesting some backlash before it reinstated the recording.

Facebook should be far more hesitant to comply in the future. And if law enforcement doesn't like the new status quo, it has nothing but itself to blame. When creating recordings of incidents like these is left to law enforcement, there's rarely anything to show for it. For one, the recordings remain in hands of law enforcement and are only handed over to the public after lengthy delays and with much reluctance.

For another -- despite the fact that nearly every vehicle and every officer is equipped with some sort of recording device -- when citizens are killed, there's often no recording of the incident to be found, no matter how many cameras were on the scene.

Community activists called on the city to release dashcam and body camera videos from a deadly police shooting last week, but police said a recording of the actual shooting is not available.

Police Supt. Eddie Johnson said the actual shooting was not recorded, although all officers on the scene were wearing body cameras.

[...]

Guglielmi said the body cameras of the two officers who fired into the vehicle were working, but the body camera of the officer who fired the fatal shot was not working.

[A] third officer opened fire, hitting and killing the unarmed 18-year-old. An autopsy revealed O’Neal died from a gunshot wound to the back.

Sure, that one could have been a fluke, but the PD is still refusing to release the video (which led to the three involved officers being stripped of their powers) for at least 60 days. At least there's some footage, even if the actual shooting wasn't caught on tape. In other incidents, there's nothing at all to see, despite there being plenty of potential "coverage."

The college student, John McKenna, was beaten and arrested for assaulting police officers. Cellphone video shot by numerous nearby students clearly showed that the officer attacked McKenna without provocation. When a security camera that should have captured the incident failed to produce any footage, police claimed it had been pointed in another direction. The officer in charge of the security cameras was married to one of the officers accused of beating McKenna.

[...]

Because of one of the agency’s consent decrees with the Justice Department, all of its police cruisers had been outfitted with cameras. Nine cruisers were at the scene of the incident. The county claimed in court filings that there was no video footage of the altercation because all nine dash cameras had coincidentally malfunctioned, or the tapes had been lost.

When it comes to recordings, law enforcement has proven repeatedly it's not up to the job. So, when officers approach third parties to shut down livestreams of volatile situations, these platforms should weigh law enforcement's track record of opacity against its supposed public safety concerns.

Filed Under: baltimore, facebook live, korryn gaines, livestream, police, recording police, sovereign citizen, swat team
Companies: facebook

Baltimore Transit Officials Won't Release Footage Of Freddie Gray Protests Because Everything Is Always About 'Terrorism'

from the an-excuse-with-a-universal-adapter dept

The excuse that worked so well for so long -- "because terrorism" -- seems to have lost its luster. Despite having a locked iPhone tied to a mass shooting with terrorist overtones, the FBI was unable to budge the needle on encryption backdoors or magical "lawful access" crypto keys.

However, that doesn't mean any number of government entities aren't willing to use the ever present "threat" of terrorism as fuel for their various civil liberties-endangering bonfires. Or that they won't use it as a profoundly cheap excuse to withhold information from the American public -- like the Indiana State Police's refusal to turn over Stingray docs because doing so might allow terrorists to plan attacks on cherished annual state events like the Mule Day Parade.

The Maryland Transit Authority has been ducking a Public Information Act (PIA) request from the Baltimore Sun for nearly a year at this point. The paper asked for surveillance footage from the Mondawin Metro station, captured in April of last year as police shut down mass transit in anticipation of protests following the death of Freddie Gray in the back of Baltimore PD van.

The MTA's first refusal utilized another very popular law enforcement excuse.

In denying the Sun's first PIA request last year, the MTA said that the office of Baltimore State's Attorney Marilyn Mosby had asked it not to release the footage because it was still being used in criminal investigations.

The Sun took this in stride and issued another request almost a year later.

The Sun sent the MTA another PIA request for the footage last month, noting that there is a statute of limitations of one year for misdemeanor charges, and that it had been a year since the incident in question — limiting the number of pending investigations there could be.

If some footage remained relevant to open investigations, The Sun said, that footage could be redacted and the rest made available.

The MTA's bluff had been called but it still had no interest in turning over the requested footage. So, it reached for the bluff that can never be called -- because it is existential, wholly subjective, and without an expiration date.

When the MTA responded last week, it made no mention of pending investigations in the state's attorney's office. It said instead that the footage could not be released because of Homeland Security concerns.

If you thought that was the end of the stupidity, you're mistaken. The Sun asked for clarification -- did this mean the MTA would never release footage from its security cameras? The MTA clarified with a bullshit-laden buck pass:

The MTA responded Friday, explaining that The Sun would have to ask the federal Transportation Security Administration for written permission to review any of the footage from the cameras, because they were funded through Homeland Security grants.

The MTA controls the cameras. It acquired them with grant money, but they are still the sole property of the MTA. The TSA is a completely unconnected third party. The DHS hands out grant money, not the TSA. And even if the TSA was somehow connected because of the grant, the footage requested only involved local law enforcement.

But it gets even worse. Even if the Sun were able to talk the TSA into granting permission (that really isn't its to grant) for the release of the requested footage, the MTA would still refuse to hand it over.

[I]f The Sun were to get that permission, it said, the MTA still would deny the footage based on its belief that the footage "would reveal the facility's safety and support systems, surveillance techniques, and security systems and technologies," as well as "jeopardize the security of the facility; facilitate the planning of a terrorist attack; and endanger the life or physical safety of the public."

This is the problem with public records laws. The government still maintains far too much control. Officials may occasionally talk big about "presumption of transparency," but when push comes to shove, its agencies like these doing all the pushing and shoving -- and routinely delivering the government equivalent of the playground rebuttal: "Make me."

Filed Under: baltimore, foia, freddie gray, protests, terrorism, transit, tsa

Judge Tosses Evidence In Murder Case Where Suspect Was Located With A Stingray Device

from the because-no-one-ever-gets-a-warrant-until-a-court-decision-forces-them-to dept

This will likely be the most spectacular flame out of the Baltimore Police Department's long history of warrantless Stingray use. The Maryland Special Appeals Court recently found that tracking people's location using Stingrays is a search under the Fourth Amendment, meaning law enforcement will need to obtain warrants before using the devices. The fact that this finding doesn't affect use previous to this decision (and there was a LOT of it) doesn't mean other judges won't arrive at the same conclusion independently.

The Baltimore Sun reports a suspected murder will likely walk away from charges after the suppression of "key evidence" obtained with Stingray.

On Monday, Circuit Judge Yolanda Tanner suppressed evidence found in Robert Copes' apartment "with great reluctance." Investigators said they found the blood of 34-year-old Ina Jenkins in Copes' apartment. Jenkins' burned body was found dumped across the street.

Homicide Detective Bryan Kershaw testified that he had suspected Jenkins' killer lived nearby and sought a court order to trace a phone number she had once used to call a relative. The agency's phone tracking unit traced the phone to the apartment, and Kershaw testified that Copes, 39, let him inside.

Judge Tanner was indeed reluctant to suppress the evidence, but as she noted, without the warrantless use of the Stingray, the Baltimore PD would have had nothing more than a photo and phone number. Because they were able to track the location of the phone, they were able to find Copes. After speaking to Copes at the apparent murder scene, officers obtained a search warrant for the apartment, but nothing for device they had already deployed. Judge Tanner doesn't appear to be happy with the decision, but says it's the only decision she can reach with the evidence at hand.

"I can't play the 'what if' game with the Constitution," she said, lamenting that it protects people from illegal searches even when the defendant is "likely guilty."

Almost as surprising is Judge Tanner's denial of the Baltimore PD's "good faith exception" argument. Courts have excused far more egregious misbehavior in cases with far less "good faith" justification. In this case, there was no existing warrant requirement and Judge Tanner even granted the fact that the officers had acted in good faith under existing policies. However, she felt that was not enough to override the unconstitutionality of the Stingray search.

If nothing else impresses the seriousness of the warrant requirement on the Baltimore PD, this case probably will. No one likes seeing an accused murderer walk away from charges, especially when other evidence obtained with a warrant (but poisoned, thanks to the use of the Stingray to locate the suspect) pointed pretty definitively at Copes as the killer.

Closed prosecutions aren't likely to be challenged -- not with the warrant requirement only recently being established -- but the BPD has to be concerned about its chances with other Stingray-related prosecutions still pending or in progress.

But it does seem prosecutors are interested in having the last word, if not in this case, then with Copes himself. This decision will be appealed and it could very well be overturned, using the same good faith exception Judge Tanner found inadequate to support warrantless Stingray use. Prosecutors have already taken a look at Copes' jacket and found something else they might be able to lock him up for.

As the hearing concluded, prosecutors informed Tanner that police had filed new charges against Copes in connection with a rape that occurred in the 1990s.

Filed Under: 4th amendment, baltimore, robert copes, stingray, warrant

Prosecutors Argue Cell Site Location Data Is Something Every User Shares With 'The Rest Of The World'

from the no-expectation-of-privacy-in-things-we-insist-everyone-knows dept

The state of Maryland's defense of the Baltimore PD's warrantless use of Stingray devices continues, taking the form of a series of motions unofficially titled Things People Should Know About Their Cell Phones.

The last brief it filed in this criminal prosecution claimed "everyone knows" phones generate location data, therefore there's no expectation of privacy in this information. As commenters pointed out, people may know lots of stuff about records they're generating, but that doesn't mean law enforcement should have warrantless access to those records.

Everyone Knows… That my Doctors generate medical data about patients, so how about we get their medical records on public display without warrants!

With no expectation of privacy, there's no need for a warrant. And with no warrant requirement, there's no chance of having evidence tossed. That's a win Maryland needs, considering the Baltimore PD alone has deployed IMSI catchers several thousand times without obtaining warrants. Everything runs through pen register orders, which both lower the burden of proof and (in many cases) obscure the technology actually being used.

Now, it's back with its response to the defendant's motion to dismiss and it's again claiming People Know Stuff, therefore no expectation of privacy. (h/t Brad Heath)

After dismissing the defendant's arguments about police use of location tracking devices as "dystopian fantasies," the state argues it's time for the accused (not just this one, but any others facing prosecutions predicated on warrantless cell phone tracking device usage) to stop pretending they don't know how much data their phones are coughing up.

While cell phones are ubiquitous, they all come with "off" switches. If a cell phone is turned on, it is receiving signals from cell towers, and sending signals back out to cell towers. The cell site simulator used in this case took advantage of that fact in order to locate Andrews's phone. Because Andrews chose to keep his cell phone on, he was voluntarily sharing the location of his cell phone with third parties. Under the doctrine set forth by the Supreme Court in Smith, supra, he cannot claim a Fourth Amendment privacy right in this case.

The "Smith" the state refers to is 1979's Smith v. Maryland, which law enforcement loves to use in cell phone surveillance cases, because:

a) it's incredibly outdated, and
b) it provides a very broad and favorable reading of the Third Party Doctrine as it relates to phone usage.

The state says it's the defendant's own fault he was located. After all, he had a choice. And he chose badly.

Andrews complains that the police "invaded" a "constitutionally protected area," and therefore this search triggered Fourth Amendment protections under United States v. Karo, 468 U.S. 705 (1984) and Kyllo v. United States, 533 US. 27 (2001). But in Karo, the suspect was unaware that he had brought a police transponder into his home, and in Kyllo, the suspect was unable to prevent grow-lights (or his body) from emitting heat. Andrews, by contrast, was quite aware that he was bringing his own cell phone into the house. And he was quite capable of turning it off

The government's argument, while technically solid when used in conjunction with these precedent-setting decisions (Smith's outdated view of phones notwithstanding), but it becomes completely disingenuous when it describes the "sharing" of identifying phone data.

Just as the telephone company in Smith used transmitted phone numbers in a way quite distinct from the way in which the police used them, so, too, Andrews's cell service provider used the ID number broadcast by his cell phone in ways quite distinct from the way in which the police used it. The way in which the information was used does not alter the "expectation of privacy" in the information itself. Smith controls here. Andrews's addition of the adjective "exact" to the noun "location" does not alter that fact. The issue is not whether Andrews was aware that the police could find the location of his cell phone to within 20 yards. The issue is whether Andrews can claim an objectively reasonable expectation of privacy in information which he was voluntarily broadcasting to third parties at all times. Under Smith, the answer is no.

There is no Fourth Amendment right to evade a valid arrest warrant. Andrews was wanted on multiple counts of attempted murder. A life "on the lam" may require some inconveniences, such as not staying in one's home, and turning one's cell phone off when not in use. There is no constitutional right to avoid being arrested for one's crimes, and nothing unreasonable about the police using the same information that Andrews was sharing with the rest of the world to apprehend him.

The "rest of the world?" Really? Andrews may have been able to talk his cell phone provider into turning over a copy of all the data his phone had generated, but it's not as though the general public has access to this information, expectation of privacy or no. Just because law enforcement can access this information with warrants or (more likely) pen register orders does not make it information "shared" with "the rest of the world." It is not shared indiscriminately and it's only because cell providers are legally compelled to cooperate with law enforcement (CALEA, etc.) that cops can obtain this information with a pen register order, rather than a warrant.

And, in this case, the information was not obtained with a court order. There may be a court order on record that would give the impression the BPD would approach a telco for phone records, but the actual collection of Andrews' location info was done with a Hailstorm cell tower spoofer. The state claims the request specified the use of a cell tower spoofer but there's no indication the presiding judge had any idea how much information these devices can obtain. A pen register order refers to a targeted phone number. A cell tower simulator gathers information from everyone in the area.

This isn't just a fight over this particular prosecution. This is the state safeguarding its thousands of Stingray deployments. If it's going to be able to keep those prosecutions from falling apart -- now that the BPD's devices are an open secret -- it needs the court to agree there's no expectation of privacy in cell phone location data. And in order to do that, it apparently needs the court to believe everyone using a cell phone is sharing all sorts of information with "the rest of the world."

Filed Under: 4th amendment, baltimore, expectation of privacy, location, location data, maryland, privacy, third party doctrine

Prosecutors Say Cops Don't Need Warrants For Stingrays Because 'Everyone Knows' Cell Phones Generate Location Data

from the we'll-let-you-know-when-you-have-an-expectation-of-privacy dept

Up in Baltimore, where law enforcement Stingray device use hit critical mass faster and more furiously than anywhere else in the country (to date...) with the exposure of 4,300 deployments in seven years, the government is still arguing there's no reason to bring search warrants into this.

The state's Attorney General apparently would like the Baltimore PD's use of pen register orders to remain standard operating procedure. According to a brief filed in a criminal case relying on the warrantless deployment of an IMSI catcher (in this case a Hailstorm), the state believes there's no reason for police to seek a warrant because everyone "knows" cell phones generate data when they're turned on or in use. (h/t Brad Heath of USA Today)

The whereabouts of a cellular telephone are not "withdrawn from public view" until it is turned off, or its SIM card removed. Anyone who has ever used a smartphone is aware that the phone broadcasts its position on the map, leading to, for example, search results and advertising tailored for the user's location, or to a "ride-sharing" car appearing at one's address. And certainly anyone who has ever used any sort of cellular telephone knows that it must be in contact with an outside cell tower to function.

The state's brief folds in parts of the Third Party Doctrine and the Supreme Court's 1979 Smith v. Maryland decision to make a truly terrible argument that because certain aspects of cell phones involuntarily create location data, the Fourth Amendment never comes into play.

Matt Blaze rephrases the state's argument slightly, exposing the ridiculousness of this assertion.

"People let people into their houses sometimes, therefore no warrant is needed to search houses". Or something. https://t.co/XncuaZvdwW

— matt blaze (@mattblaze) January 14, 2016

"People let people into their houses sometimes, therefore no warrant is needed to search houses". Or something.

The state follows this up by arguing that, because the use of a pen register order to deploy an IMSI catcher is not expressly forbidden by local statutes, the evidence shouldn't be suppressed.

There was no cellular tracking device statute in effect at the time. There was an order from a neutral magistrate, finding probable cause to authorize precisely what was done in this case; the closest applicable statute does not contain an exclusionary provision. Thus, the court erred in excluding evidence in this case.

All well and good, except that the only reason there was no statute in place is because local law enforcement spent years keeping its cell phone tracking devices hidden from judges and defendants, obscuring the technology through parallel construction and misleading pen register order requests. This case is no different than the hundreds preceding it. The magistrate judge signing the pen register order had no idea what the Baltimore PD was actually doing. The presiding judge in this prosecution declared the Baltimore PD's pen register request contained "material misrepresentations" on his way towards granting the suppression of evidence.

For the state to claim everything was above board and no Fourth Amendment violations occurred is rather audacious, considering it spent months dodging discovery requests related to the methods used to locate the defendant.

The request, asking for no more than what the State was compelled to disclose pursuant to Maryland Rule 4-263, sought: 1) "records, notes, and documents" relating to the Baltimore Police Department's investigation into a second suspect from the April 27, 2014 shooting; as well as 2) information "indicating how Mr. Andrews was located at 5032 Clifton Avenue."

Over two months later, on January 8, 2015, the State responded to the discovery request. The State claimed not to "possess information related to the method used to locate the Defendant at 5032 Clifton Avenue." (T1 9) This turned out to be false.

In fact, the state did not turn over its IMSI catcher-related information until mid-May 2015, more than seven months from the point it was originally requested. That's a long time to withhold information on a Hailstorm deployment the state now claims was both perfectly legal and intruded on no one's privacy.

Filed Under: 4th amendment, baltimore, cell phones, expectation of privacy, hailstorm, imsi catchers, police, stingrays, warrants

Police Regularly Use Stingrays Without A Warrant To Find Petty Criminals, Then Try To Hide That Fact

from the more-of-the-same dept

Over the last few years, we've published a ton of stories about the growing police reliance on Stingray cell site simulator devices (also known as IMSI catchers), that mimic a real cell phone tower and help provide the location of a certain mobile phone. As we've written, these devices have been super popular with police departments, who often receive them from the federal government with strict non-disclosure agreements, which means law enforcement has been known to lie to courts or simply drop cases where the usage is at risk of coming out in court.

It seems that this story is getting more and more national attention. Brad Heath, over at USA Today, has a fairly deep dive into the fact that police are using these devices to solve petty crimes all the time, without a warrant, and then refusing to tell defendants how they were caught (which is a bit of a constitutional no-no). Heath specifically was able to get a police surveillance log in Baltimore, which detailed how the devices were used there.

The records show that the city's police used stingrays to catch everyone from killers to petty thieves, that the authorities regularly hid or obscured that surveillance once suspects got to court and that many of those they arrested were never prosecuted.

Defense attorneys assigned to many of those cases said they did not know a stingray had been used until USA TODAY contacted them, even though state law requires that they be told about electronic surveillance.

“I am astounded at the extent to which police have been so aggressively using this technology, how long they’ve been using it and the extent to which they have gone to create ruses to shield that use,” Stephen Mercer, the chief of forensics for Maryland’s public defenders, said.

Some of the cases are absolutely ridiculous -- such as the one where an angry husband grabbed his wife's phone and left the house. Police declared it a theft and used an IMSI catcher to track it down... but by that point, the husband had already given it back to his wife, so the police just showed up at her home where she already had the phone. Also, because it's so easy to use these devices to just go and locate anyone, Baltimore police sometimes used it just to find the location of witnesses (i.e., people who haven't committed any crimes). That's going way over the line of what's appropriate.

These things are being used so often in so many cases with so little transparency, one hopes that the growing press attention will finally lead to much more accountability on how these devices are used and a requirement for a warrant.

Filed Under: baltimore, cell site simulators, imsi catchers, law enforcement, police, privacy, stingrays

Baltimore Cops Asked Creators Of 'The Wire' To Keep Cellphone Surveillance Vulnerabilities A Secret

from the works-of-fiction-with-too-much-truth? dept

Over the past decade, criminals have apparently gained an insurmountable technology lead over law enforcement. I'm not sure how this is possible, especially considering many criminals don't have access to the same technology cops do, much less access to generous DHS funding, and yet, here we are witnessing police officers (following orders from the FBI) tossing cases and lying to judges in order to "protect" secret tools that aren't all that much of a secret.

We recently covered a Baltimore detective's courtroom admission that a) the Baltimore PD had deployed its Stingray equipment 4,300 times over the past seven years and b) that it had hidden this information from courts and defendants. The argument for this secrecy was that doing otherwise allows criminals to devise ways to beat the system.

No one's looking to expose ongoing investigations, but as far as some law enforcement agencies are concerned, everyone is under continuous investigation by default. And since that's the case, anything that might be construed as giving criminals a head start is subject to a thoroughly ridiculous code of silence that excludes the majority of the justice system.

This cop-specific technopanic is so all-encompassing that it has bled over into the unreality of creative efforts -- like TV shows. (via The Verge)

David Simon, creator of "The Wire" and a former Baltimore Sun reporter, said in an email that "the transition from landlines to cellular technology left police investigations vulnerable well over a decade ago."

He noted that there was new technology at the time — such as Nextel phones that mimicked walkie-talkies — that "was actually impervious to any interception by law enforcement during a critical window of time."

"At points, we were asked by law enforcement not to reveal certain vulnerabilities in our plotlines," Simon said. That included communications using Nextel devices.

The Wire also featured detectives using a cell signal-capturing device called a "Triggerfish." Any relation to today's Stingrays is likely not coincidental, no matter what the post-credits disclaimer might have stated. The Stingray isn't a secret, but it has been awarded an unprecedented amount of secrecy. Cops lie to judges, defendants and even prosecutors to keep the Stingray out of the public eye. And yet, it seems clear that The Wire's creators knew something about the technology over a decade ago.

But the inherent ridiculousness of asking a fictional television show to withhold dramatic elements just because they may have hewed too closely to reality can't be ignored. Criminals will find vulnerabilities in the system and law enforcement will work hard to close these gaps. But criminals aren't so far ahead as to be unstoppable.

This attempt to censor The Wire isn't much different than the law enforcement secrecy efforts we see being deployed in courts. The motivation behind these efforts is highly suspect. It doesn't seem so much to be aimed at preventing criminals from exploiting vulnerabilities as it is at keeping law enforcement officers from working any harder than they feel they should have to. It's not about keeping bad guys from outmaneuvering cops. It has more to do with preventing public disclosure from resulting in unwanted changes -- like additional scrutiny from magistrate judges or the challenging of submitted evidence. It's about preserving the most efficient law enforcement methods -- generally anything that doesn't require permission from an outside entity or generate a paper trail.

Filed Under: baltimore, baltimore police, fbi, imsi catcher, secrecy, stingray, the wire, vulernabilities

Baltimore PD Has Deployed Stingray Devices Over 4,300 Times, Instructed By FBI To Withhold Info From Courts

from the 'to-sever-and-deflect' dept

Say what you will about the Baltimore PD and its cell tower spoofers (like... "It would rather let accused criminals go than violate its [bogus] non-disclosure agreement with the FBI…" or "It hides usage of these devices behind pen register/trap and trace warrants and then argues the two collection methods are really the same thing…"), but at least it's making sure the hundreds of thousands of dollars it's spent on the technology isn't going to waste.

On Wednesday, Baltimore police Det. Emmanuel Cabreja said the department has deployed the device, called Hailstorm, and similar technology about 4,300 times since 2007.

As the AP notes, the number of deployments admitted to here is the largest ever made public. This doesn't necessarily mean the rate of usage (more than once a day, on average) is out of the ordinary, however. Thanks to the very restrictive non-disclosure agreement the FBI forces law enforcement agencies to sign (while falsely claiming "the FCC made us do it!"), information on cell tower spoofers has very rarely been disclosed.

Det. Cabreja confirmed the ultra-restrictive terms of the FBI's NDA, which forbids law enforcement agencies from producing any information on Stingray devices, no matter who's asking for it.

Cabreja said under questioning from defense attorneys that he did not comply with a subpoena to bring the device to court because of a nondisclosure agreement between the Baltimore police and the Federal Bureau of Investigation.

“Does it instruct you to withhold evidence from the state’s attorney and the circuit court of Baltimore city, even if upon order to produce?” asked defense attorney Joshua Insley.

“Yes,” Cabreja replied, saying he spoke with the FBI last week about the case.

There's nothing quite like hearing confirmation that two law enforcement agencies worked together to withhold information from a party being prosecuted by directly violating a court order. But it gets even better. The Baltimore PD's NDA was made public, and it shows the State's Attorney's office signing off on withholding Stingray information from judges and defendants, as well as agreeing to toss cases if exposure seems unavoidable. In contrast, the Erie County Sheriff's Department's agreement obtained by the NYCLU only contained signatures from law enforcement officials.


The courts -- at least in Baltimore -- seem to be tiring of this secrecy. Baltimore judge Barry Williams has previously questioned the Baltimore PD's citation of its non-disclosure agreement with the FBI, with one memorably pointing out that the PD "doesn't have a non-disclosure agreement with this court." Unfortunately, if the Baltimore PD prioritizes its NDA over its obligation to obey court orders and turn over requested evidence, then it does actually have an NDA "with the court," albeit one the court never agreed to. If the FBI says Stingray info isn't going to be turned over -- no matter who's asking for it -- that information will remain hidden, even if it means tossing criminal cases.

Filed Under: baltimore, baltimore police, doj, fbi, imsi catcher, nda, secrecy, stingray, surveillance, transparency
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