Government Continues To Pretend People Use Cell Phones Simply To Create A Wealth Of Data For Law Enforcement To Access Without A Warrant

from the let's-make-government-cell-phone-data-accessible-by-FOIA-request dept

You'd think approved warrants must be like albino unicorns for all the arguing the government does to avoid having to run one by a judge. It continually acts as though there aren't statistics out there that show obtaining a warrant is about as difficult as obeying the laws of thermodynamics. Wiretap warrants have been approved 99.969% of the time over the last decade. And that's for something far more intrusive than cell site location data.

But still, the government continues to argue that location data, while possibly intrusive, is simply Just Another Business Record -- records it is entitled to have thanks to the Third Party Doctrine. Any legal decision that suggests even the slightest expectation of privacy might have arisen over the past several years as the public's relationship with cell phones has shifted from "luxury item/business tool" to "even grandma has a smartphone" is greeted with reams of paper from the government, all of it metaphorically pounding on the table and shouting "BUSINESS RECORDS!"

When that fails, it pushes for the lower bar of the Stored Communications Act to be applied to its request, dropping it from "probable cause" to "specific and articulable facts." The Stored Communications Act is the lowest bar, seeing as it allows government agencies and law enforcement to access electronic communications older than 180 days without a warrant. It's interesting that the government would invoke this to defend the warrantless access to location metadata, seeing as the term "communications" is part of the law's title. This would seem to imply what's being sought is actual content -- something that normally requires a higher bar to obtain.

But the government never stops defending its normal M.O.: as much as possible with as little paperwork (and judicial oversight) as possible. Here it is responding to a letter sent by defendant Aaron Graham, who has been battling for suppression of 221 days worth of cell site location data (including nearly 30,000 specific data points) the government obtained without a warrant during its investigation of his involvement in a series of robberies.

Graham's letter cited the recent 11th Circuit Court ruling in the US v. Davis case, which found that the government violated the defendant's Fourth Amendment rights by obtaining mobile tracking data without a warrant. (Unfortunately, Davis was not awarded a retrial as the government demonstrated the warrantless collection was obtained "in good faith.") The government's response to this ruling (and its possibly favorable effect on the defendant) simply advises the Fourth Circuit Court that the 11th Circuit Court got everything wrong. (via Mike Scarcella)

In requiring a warrant to obtain cell-site records, however, the Eleventh Circuit erred. The Eleventh Circuit asserted that there is “a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship,” 2014 WL 2599917 at *9-*10, but Fourth Amendment protection of information depends on how the government obtains information, rather than its nature.

So, rather than address the intricacies of the court's decision (that what used to be considered nothing more than "business records" are now very personal diaries of people's lives, thanks to the amount of data being gathered by cell providers), the government instead reiterates that it's entitled to warrantless access because it's always been entitled to warrantless access, technological advances and societal shifts be damned.

The government can obtain cell-site records with a 2703(d) order because they are business records stored at the provider’s discretion. See id. at 611-12. Bank records and dialed telephone numbers reveal far more sensitive, and far more particularized information than cell-site records, but no warrant is required to compel their disclosure.

Fair enough, but two things:

1) These "business records" are stored at the provider's discretion. Customers can't prevent the storage of certain records without forgoing service altogether. They also don't "reasonably" expect service providers to gather tons of data for law enforcement agencies to page through at their discretion. There's an expectation of privacy, albeit one that neither law enforcement nor service providers feel particularly compelled to address.

2) Shouldn't the question then be, why does law enforcement still have warrantless access to this "more sensitive" data, rather than, why doesn't law enforcement have more warrantless access?

Davis erred in distinguishing Miller and Smith by asserting that cell-site records are “not voluntarily disclosed.” 2014 WL 2599917 at *10. Smith assessed the information voluntarily disclosed from the standpoint of a well-informed customer, and cell phone companies inform customers that they collect location data.

The "well-informed customer" is hardly the average customer, and cell phone companies "disclose" plenty of info in pages and pages of fine print that no one ever reads. This shouldn't be taken to mean that customers are willingly generating a wealth of data for law enforcement to access at will. But the government reads all the fine print customers don't and chooses to believe every customer knows just how much info they're allowing law enforcement agencies to access without a warrant by simply turning on their cell phones. But the government's not done being disingenuous.

Moreover, when a business stores records at its discretion, it functions simply as a witness; the government may compel a witness to disclose records without a warrant regardless of whether the subject was aware the records were collected and stored.

This argument again tries to present the business collecting the records as the entity people should be directing their ire and astonishment at. If only these businesses didn't collect these records, then law enforcement wouldn't be able to access them. But much of what's collected is related to billing information, something these businesses don't collect voluntarily, but because it's essential to the business itself. People "consent" to this collection because the only way to opt out is to not use a phone. This hasn't been a practical option for several decades at this point. But the government continues to act as though people voluntarily generate evidence accessible without a warrant due to their insistence on using "optional" luxury devices. It's only very recently that the courts have started pushing back on this deliberately obtuse assertion, pointing out that circumstances have changed incredibly since the institution of the Third Party Doctrine, much less the Fourth Amendment itself.

Once again the question must be asked: what's so incredibly difficult about obtaining a warrant? In the case of Graham -- where over 200 days of cell site location data was acquired -- there obviously wasn't any timeframe concerns. And every law enforcement agency has built-in workarounds for exigent circumstances to be used in cases where time is of the essence. All of these arguments are the government aiming to maintain the status quo in the face of technological upheaval -- and with each passing day, the arguments seem a little more ignorant and petulant.

Filed Under: business records, law enforcement, mobile phones, privacy, third party doctrine, warrants

ACLU Digs Deep Into The Law Enforcement War Machine

from the might-as-well-lock-the-door;-they're-just-going-to-break-it-down-anyway dept

“Advocates from every corner of the political compass have produced a mountain of disinformation about the ‘militarization’ of American law enforcement.”

- Doug Deaton, Lieutenant, Plano (TX) Police, writing for PoliceOne

• 32 bomb suits
• 704 units of night vision equipment
• 712 rifles
• 42 forced entry tools, like battering rams
• 830 units of surveillance and reconnaissance equipment
• 13,409 personal protective equipment (PPE) or uniforms
• 120 utility vehicles
• 64 armored vehicles
• 4 GPS devices
• 17 helicopters
• 21,211 other types of military equipment
  

- Equipment obtained by Arizona law enforcement agencies via Dept. of Defense 1033 grants

Zambia, Slovakia, Somalia, Ghana, Hungary, Estonia, Mozambique

- Some of the countries (out of a total of 17) whose militaries have fewer helicopters than Arizona law enforcement agencies (according to statistics gathered by the CIA and posted at GlobalFirePower.com)


The ACLU's extensive report on police militarization shows a nation at war with itself. The War on Terror -- a 13-year windmill joust that has generated an excess of military equipment -- has merged with the War on Drugs, an exercise in futility seven years removed from the half-century mark.

Actual military combat, utilizing enlisted soldiers, has given birth to the same equipment now routinely being deployed to fight the crime formerly policed by normal police officers. Cell tower spoofers, surveillance drones, Mine-Resistant Ambush-Protected personnel carriers (MRAPs) -- all of these were developed for use by the military. And all of these have now found homes in local law enforcement armories.

The requisition forms are littered with terrorism-related terms, but the reality of the situation is much more banal. Low-level drug dealers are being dealt with like enemy combatants. Law enforcement agencies claim with straight faces that they're falling behind in the arms and technology race, all the while acquiring the best weaponry and technology tax dollars can buy.

These are then handed over to SWAT teams, special police forces developed to take on truly dangerous situations like riots, active shooters, hostage situations and barricaded suspects. They are outfitted in military gear and sent out to perform the everyday task of serving search warrants.


These teams prefer to do this mundane task with a maximum amount of chaos and violence. Warrants are delivered with no-knock raids, ostensibly to give the police department the upper hand on the presumed-to-be-dangerous occupants. In reality, this is the sort of thing that happens far too frequently.

[B]efore 3:00am on a night in May of 2014, a team of SWAT officers armed with assault rifles burst into the room where the family was sleeping. Some of the kids’ toys were in the front yard, but the Habersham County and Cornelia police officers claimed they had no way of knowing children might be present. One of the officers threw a flashbang grenade into the room. It landed in Baby Bou Bou’s crib.

It took several hours before Alecia and Bounkahm, the baby’s parents, were able to see their son. The 19-month-old had been taken to an intensive burn unit and placed into a medically induced coma. When the flashbang grenade exploded, it blew a hole in 19-month-old Bou Bou’s face and chest. The chest wound was so deep it exposed his ribs. The blast covered Bou Bou’s body in third degree burns.

Three weeks later, it's still unclear whether the child will survive. The SWAT predicated its warrant on a $50 drug purchase from someone who didn't even live at that residence. No drugs or guns were found. No arrests were made.

Note that the police defended their actions by claiming they had "no way of knowing" if children might be present. But that lack of crucial knowledge had zero effect on its tactics. Officers didn't throw a flashbang grenade into the house because they were sure there were no children present. Officers threw a flashbang grenade into the house because that's what SWAT teams do when they serve no-knock warrants. The question of children was never raised, at least not until their actions had placed a child in a medical coma and now needed to be defended. A safer assumption would be that nearly every house being raided has a child in it. Most houses do.

This is how law enforcement's new toys get used: to take down lowball drug dealers. A large majority of warrants served are drug-related. The ACLU has the stats.


The problem is more troubling than mere mission creep. The new armor and weapons are begging to be used. These acquisitions, often obtained over the protests of the populace under the agency's "protection" (or just as often, without their knowledge), need to be justified. The terrorism threat cited in requisition forms just isn't going to present itself. And so, law enforcement agencies deploy these against the next best thing: the neighborhood drug dealer boogeyman.


The whole report is, by turns, fascinating, brutal and deeply concerning. Some claim the militarization of the police is a misconception, an illusion generated by a handful of vocal journalists. But the ACLU has the numbers that say otherwise.

Law enforcement knows this is the truth. The government's misguided generosity has allowed local law enforcement to stockpile weapons and armor, but hasn't given it any limitations or guidance. And the stated reason -- terrorism -- simply isn't common enough to justify a one-sided arms "race," no matter how far the definition of "terrorist" is stretched. So, the weapons and armor are used to carry out search warrants, bringing unnecessary amounts of chaos and violence to something police used to handle with an authoritative knock and possibly a scuffle or two if things went south. Now, it's de rigueur. The tools can't be allowed to gather dust and the War on Drugs can't risk any more casualties -- at least not on the part of the enforcers.

Filed Under: law enforcement, military equipment, war

US Courts' Wiretap Report Shows Wiretaps Are For Drugs And Warrants Are Rejected Only .03% Of The Time

from the so,-those-seven-were-like,-processing-errors-or-something? dept

The US Courts system has just released its annual report on wiretap warrants. As you'll recall, warrants are those quaint permission slips that law enforcement officers occasionally seek before performing searches. (Although it looks as though they'll be doing it more frequently from now on…)

Not included in this report are outlying actions by agencies whose rogueness has been codified. The US Courts FAQ on the report points out that data from the FISA court is not included. Presumably, the previously illegal warrantless wiretaps deployed by the federal government aren't being tracked either, because if there's no warrant, there's no court. And if there's no court, there's no oversight.

Also not included are pen register/trap and trace orders, which are basically given the same amount of scrutiny that subpoenas and NSLs are given: very little, if any.

No report to the AO is required for the use of a pen register (a device attached to a telephone line that records or decodes impulses identifying the numbers dialed from that line) unless the pen register is used in conjunction with any wiretap devices whose use must be recorded. No statistics are collected on the number of devices used in conjunction with each order.

The US Courts system has handily provided ten years of data on wiretap warrants and everything in it points to one thing -- US law enforcement is almost exclusively focused on fighting the War on Drugs.

Of the 22,741 warrants issued since 2003, 21,838 (96%) were issued under the heading of "Narcotics." And the warrants themselves are ridiculously easy to obtain (giving lie to law enforcement's complaints about the complexity of securing a search warrant). To obtain these 22,741 warrants, 22,748 applications were submitted. Only 7 applications have been rejected since 2003, giving law enforcement a batting average of .99969.

So, we know drugs are big business for law enforcement. At an average of $41,119 per intercept deployed, expenses for just the drug-related wiretaps in 2013 easily tops the $100,000,000 mark, and that's assuming all of those adhered to that average (the average was taken from 2,069 wiretaps where costs were reported.) The cost per intercept seems to be coming down (it was over $62,000 in 2003) but the number of intercepts has doubled over the same time period. The US Courts' information page also notes that further expenses are often reported after the reporting period has ended. (It points to an additional $62 million in expenses reported in 2013 for wiretaps issued in previous years.) Drugs are not just a multi-billion dollar business for distributors. With this intense focus on one particular form of crime, law enforcement has become just as big a "customer" of the drug business as drug users.

That data may not be particularly surprising, but it does reveal just how much attention is being paid to a narrow range of criminals. Nowhere does the report indicate anything has been deployed to combat terrorism, which is often the stated reason for obtaining bigger and better ex-military weapons and vehicles. It could be that wiretaps issued for counterterrorism are hidden under other designations or done without court approval. Or it could be that there's simply not nearly as much domestic terrorism activity as law enforcement officials claim.

The more surprising data, especially when coupled with the fact that US courts have only rejected .00031 of the wiretap applications that cross their desks, is the sheer number of people and communications being swept up by single warrants.

San Mateo County, California had only one wiretap warrant issued (probably related to the investigation of Sen. Leland Yee), but it was able to put a whole lot of people under surveillance with that single document. Its single intercept gathered communications from 588 people, with a total of 19,477 interceptions… of which only 513 proved to be incriminating. (It should be noted that intercepted communications can also include text messages, a form of communication that can easily cause these numbers to swell to ridiculous proportions.)

Likewise, Franklin County, Ohio also sought only one wiretap order, but it, too, had a huge payoff -- 551 people, 9,654 communications with 454 deemed incriminating (most likely related to this drug bust).

But with all these large numbers and expenses come massive amounts of arrests and indictments, right?

Well, not really. Even accounting for the fact that it can take years before the results of an investigation result in jail time, the percentage of convictions resulting from wiretap-related arrests seems to be hovering right around 45%. And the number of arrests is far smaller than number of people whose communications were intercepted during the course of the investigation.

In 2003, 167,272 people had their communications tapped (with 4.3 million communications intercepted) but this has only resulted in (to date) 5,705 arrests and 2,523 convictions. 2004 was even worse, with 215,460 people surveilled (5.1 million communications intercepted). The end result, a decade on? 6,717 arrests and 2,815 convictions.

If these patterns hold (and there's no evidence they won't), the hit rate of wiretap deployments will continue to fall, at least in terms of arrests and convictions. The average number of people tapped by an order last year was "only" 97 (the number has hovered between 100-110 over the course of the last decade) but the average number of communications harvested from each wiretap has been increasing over the past several years. Last year, it was 4,558 communications per wiretap (2003/2004 were 3,004/3,017 per) and the number of wiretaps issued has more than doubled in that same period. 2013's numbers are astounding: 346,872 people surveilled with 16,299,408 communications intercepted, with less than 3 million declared "incriminating."

Within those numbers is another interesting fact: encryption is rarely used and even when it is, it's rarely effective.

The number of state wiretaps in which encryption was encountered increased from 15 in 2012 to 41 in 2013. In nine of these wiretaps, officials were unable to decipher the plain text of the messages. Encryption was also reported for 52 state wiretaps that were conducted during previous years, but reported to the AO for the first time in 2013. Officials were able to decipher the plain text of the communications in all 52 intercepts.

Contrast this minimal number with the thousands of devices tapped with the claim made by the US government (in the US v. Wurie warrantless cell phone search case) that requiring warrants would put law enforcement at the mercy of tech-savvy criminals.

[S]earching an arrestee's cell phone immediately upon arrest is often critical to protecting evidence against concealment in a locked or encrypted phone or remote destruction.The numerous party and amicus briefs in these cases have not seriously undermined that fundamental practical point. Although the briefs identify various techniques to prevent the remote-wiping problem (none of which is close to perfect), they barely address the principal problem that the government identified: automatic passcode-locking and encryption.

There is no tech arms race. Encryption was encountered 41 times durings the states' surveillance of over 200,000 people. The encryption "held" only nine times. All fifty-two times the federal government encountered it during its surveillance of millions of people over the last several years, it was able to defeat it.

The US Court system has proven indistinguishable from the FISA Court with its approval rate that's only .03% away from 100%. Likewise, the surveillance it approves sweeps up tons of "incidental" communications from completely innocent parties. The end result, however, is possibly more futile than the War on Terror. The Drug War isn't headed for a win, nor will it ever be. It will never even be a tie. This has gone on for 40 years and the only "benefit" has been increased budget lines for law enforcement agencies and the steady militarization of local police forces. Billions of dollars in taxes are being poured into a battle many Americans don't feel is worth fighting, while the system itself remains largely insulated against public opinion. Judges are granting nearly anything as long as the word "drugs" appears on the request and law enforcement agencies know this.

If nothing else, this reports shows that law enforcement should never have a problem with seeking a warrant. Even large-scale surveillance efforts (like the sweeping up the communications of 500+ people with a single wiretap request) are flying through the court system without a hitch.

Filed Under: drugs, law enforcement, rubber stamp, us courts, warrants, wiretaps

Legislators In North Carolina Want To Let Law Enforcement Hide Personal Info From Public Records

from the I-guess-we're-referred-as-'the-Public'-for-a-reason... dept

Often, it seems there are two sets of rules: the set we the public are expected to follow, and those that legislators, law enforcement and other government subsects follow. Sometimes, it's not just something that feels that way. Sometimes, it actually is, like the discovery that lawmakers were profiting from inside trading. This prompted a quick change in laws to make legislators act like law-abiding citizens, but it was just as swiftly rolled back once the outrage had died down.

Legislators in North Carolina are now considering a bill that would give government employees and officials unprecedented control over public records -- a "courtesy" that apparently won't be extended to the public. (via Techdirt reader Jj)

Wake County Assistant District Attorney Colleen Janssen spoke before a House judiciary committee before it passed a measure allowing state and federal prosecutors, federal judges and police officers to remove any information that could be used to identify them from city and county websites. Such information could include local tax payments, property deeds and other records accessible to the public online.

It includes one small caveat.

Identifying information wouldn't be removed from the actual records on file at local government offices.

Anyone with enough time on their hands can still head down and experience some quality face time at the local government office should they want to see the offline-only information, an interaction that will presumably be logged in some fashion, just in case.

Why is this bill even being considered? Because bad things happened once to this one person -- who also happens to be a prosecutor.

A prosecutor recently targeted by kidnappers urged a legislative committee Wednesday to endorse a bill that would shield the identity of law enforcement officials online.

An indictment says alleged gang members kidnapped Janssen's father, 63-year-old Frank Janssen, from his Wake Forest home in April and held him captive in an Atlanta apartment for five days before he was rescued by federal agents. The kidnappers had targeted the daughter as revenge for her prosecution of a gang member, but ended up at the wrong address and decided to abduct the father instead.

Janssen believes this law would help shield law enforcement members, along with the rest of the prosecution side of government, from those with "nefarious intentions." Presumably, the general public will still be subjected to nefarious actions, since they aren't being afforded the same luxury. Despite the fact that law enforcement has become a much safer occupation over the last 50 years, we are constantly told that the dangers are increasing, usually as a justification for misconduct, expanded surveillance or the acquisition of military equipment. Presumably, a world more dangerous for law enforcement would also be more dangerous for civilians, but very little thought is given to the wellbeing of the public. Instead, we get statements like this:

"Kidnapping and mortal danger are faced by state and federal prosecutors constantly."

That's from Robert Guthrie, the president of the National Association of Assistant United States Attorneys.

So, this would allow these parties to scrub online info, but the public's can still be public, even though this information is used by "nefarious" people as well, like scam artists, vengeful ex-anythings (employees, spouses, etc.) and other members of the criminal element. But only the chosen few will be allowed to take public information out of public records.

And that few may only stay a few for a brief amount of time. If passed, the law would open the door for nearly any entity, inside the government or out, to claim that its members are adversely affected by the publication of personal information in public records and that they too should be allowed to scrub their identifying information as well.

If this goes through, North Carolina will have two sets of public records laws -- one for whom danger is considered unacceptable and one for everyone else, where danger is expected to be just part of life.

Filed Under: law enforcement, north carolina, privacy, prosecutors, public information

Law Enforcement, DOJ Already Plotting How To Get Around Supreme Court's Warrant Requirement To Search Phones

from the because-of-course-they-will dept

Following this week's landmark ruling from the Supreme Court that says law enforcement must get a warrant to search mobile phones, law enforcement folks are clearly freaking out. A bunch of folks are quoted on how "awful" this ruling is, as they pretend that getting a warrant is such an incredible burden. Jim Pasco, the executive director of the Fraternal Order of Police, points out that due process should be ignored when gangs are around:

Jim Pasco, executive director of the Fraternal Order of Police, the country's largest police union, imagined the police busting a drug deal with two suspects, one who gets cuffed and another who gets away.

The arresting officers “want to get into that phone and see if they can get the other guy,” he said in an interview. “Or gang situations. They communicate almost exclusively by phone. There's more at stake here than due process. It's public safety.”

Meanwhile, another police spokesperson overreacts by suggesting warrants are somehow difficult to get:

Besides the delay, one problem is such a warrant might not be approved, said Bill Johnson, executive director of the National Association of Police Organizations, which counts about 240,000 rank-and-file police officers as members.

“You have to make that jump: I bet he's got a bunch of stuff on his phone. And that's not good enough,” he said. “The officers are really going to have to point to something specific that ties that phone or that suspect's use of phones to the commission of a crime.”

He makes that sound horrible, but that's what the Constitution says. Just because there may be bad stuff in someone's house the police don't get to just search it. They have to point to something specific. That's the 4th Amendment. Has Johnson never read it?

Meanwhile, at the DOJ, they're already plotting on ways to get around this ruling by seeing how far they can push the "exigent circumstances" exception:

Ellen Canale, a Justice Department spokeswoman, said the agency would work with law enforcement to ensure "full compliance" with the decision.

"We will make use of whatever technology is available to preserve evidence on cell phones while seeking a warrant, and we will assist our agents in determining when exigent circumstances or another applicable exception to the warrant requirement will permit them to search the phone immediately without a warrant," Canale said.

Notice how the focus is on figuring out more ways to search phones, not more ways to make sure they obey the law. This doesn't make me feel any safer. Quite the opposite.

Filed Under: 4th amendment, doj, exigent circumstances, law enforcement, privacy, riley, supreme court, warrants

Supreme Court Says Law Enforcement Can't Search Mobile Phones Without A Warrant

from the that-old-4th-amendment dept

Following this morning's disappointing Aereo ruling, the Supreme Court also released its ruling in the Riley/Wurie cases that examine whether or not the police can search through your mobile phone without a warrant. As we've discussed, both the Riley and Wurie cases basically deal with the same issue, though one (Riley) involves a smartphone, while the other (Wurie) is about a more old-fashioned flip phone. We had significant problems with the government's arguments in defending such warrantless searches and so did the Supreme Court, which has made it clear that police cannot search phones without a warrant.

In short, the Supreme Court actually believes in the 4th Amendment. This ruling is likely to become a very key one in a number of other upcoming questions about where the 4th Amendment applies to new technologies. The Court recognizes that existing precedent allows for searches of physical containers, but thankfully declines to accept the government's argument that searching digital devices is the same thing. First, it notes that a big part of the reasoning that allowed the search of physical containers was to make sure there weren't any dangerous weapons. Here (despite the claims of some rather confused police) the Court realizes this is ridiculous.

Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.

The ruling basically says that if the data on the phone is important, law enforcement can go get a warrant and then do the search later. It's not an emergency situation that needs to be viewed immediately. The court completely brushes off the argument from the government that remote wiping capability means content searches may be urgent by basically saying that it's not likely to happen very often or to be much of an issue. In short, this hypothetical situation of remotely wiping phones isn't likely to be a real problem -- and notes that police have alternative ways to deal with that hypothetical "risk."

The court digs into just how different a digital device is than a physical container, and how the implications for allowing a search would be extreme.

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.... Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.

More important than that is how this impacts your privacy:

The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception.

And, from that, the court notes, the world with smartphones is a very different world:

In 1926, Learned Hand observed ... that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” ... If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form— unless the phone is.

Furthermore, the court notes that it's not just the storage on the phone that's at issue, but the fact that most phones reach out into the cloud:

To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter.... But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. That is what cell phones, with increasing frequency, are designed to do by taking advantage of “cloud computing.” Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.

The ruling then walks through and rejects each of the attempts by the government to offer up ways in which it should be allowed to search phones. One important one involves the government's argument that the ruling in Smith v. Maryland (which we've discussed a lot -- covering how there's no privacy expected in data handed to third parties) means retrieving the phone's call log is permitted. However, here the court notes this is not the same thing.

We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case. The Government relies on Smith v. Maryland,... which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. .... There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case.

The court also -- importantly -- highlights how attempts by the government to claim that looking through photographs on a phone is "analogous" to looking through photos in a wallet are not, in fact, analogous:

But the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years. And to make matters worse, such an analogue test would allow law enforcement to search a range of items contained on a phone, even though people would be unlikely to carry such a variety of information in physical form.

That tidbit seems like it could be quite useful in future cases in which the government defends its collection of bulk data. That said, the court does note (in a footnote clearly directed at this issue) that this ruling is not about such bulk collections:

Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.

That said, the framework discussed in the ruling does, quite strongly, suggest that the Supreme Court will be fairly skeptical towards the government's defense of bulk collections. Now we just need to wait for a case challenging those programs to actually reach the Court.

Filed Under: 4th amendment, digital, law enforcement, mobile phones, privacy, supreme court

New Emails Show That Feds Instructed Police To Lie About Using Stingray Mobile Phone Snooping

from the that's-not-how-it's-supposed-to-work dept

We've been covering the increasingly widespread use of Stingray or similar mobile phone tower spoofing equipment by law enforcement. The stories have been getting increasingly bizarre lately, starting with the news that police were claiming that non-disclosure agreements prevented them from getting a warrant to use the technology. And then, there was the recent news that the federal government was regularly stepping in to claim ownership of documents related to the technology (even when it's used by local police) in order to block them from being obtained under Freedom of Information laws. Just this morning, we wrote about some new evidence that police are claiming they need these devices to stop "weapons of mass destruction," though they then just use them to spy on people suspected of everyday crimes instead.

Late last night, the ACLU came out with perhaps the most explosive information so far: a set of internal police emails showing that the US Marshals have been instructing police to lie to courts about the use of such devices. Specifically, rather than revealing the use of the tool, they're told to just tell the court they got the information from a "confidential source." While affidavits may initially note the use of such a device, the police are told to submit a new affidavit after the fact without mentioning the Stingray, and seal the old one, so that it never becomes public. The key parts of the email are highlighted below: This is highly questionable. Just to repeat: this is the federal government loaning out equipment to spoof mobile phone towers to spy on people and then instructing (practically demanding) that the police hide or suppress this information by claiming that it came from a "confidential source" and by sealing any affidavits that accidentally mention the use of the equipment. As the ACLU notes this practice "deprives defendants of their right to challenge unconstitutional surveillance ." It also seems like a fairly straightforward due process violation. This even goes beyond "parallel construction" in which illegal surveillance is concealed by "recreating" it in other ways. In this case, you have illegally obtained evidence... and then police are just told to lie to the court about it.

This is stunningly bad.

As some legal experts are quick to note, this seems like an astoundingly stupid move by both the US Marshals and the local police who took them up on their request. That link, includes quotes from a number of legal experts interviewed by Cyrus Farivar at Ars Technica, some of whom are actually supportive of the use of Stingrays, but who note that this effort could very well be fraud on the court.

Filed Under: cell phone spoofing, fraud on the court, law enforcement, lying to court, sarasota, stingray, surveillance, us marshals

Stingray Documents Show Law Enforcement Using 'Terrorism' To Obtain Equipment To Fight Regular Crime

from the because-WMDs-but-here's-a-low-level-drug-dealer-we-busted dept

Scott Ainslie at MuckRock has pried loose a few more Stingray documents with a FOIA request. What was requested were contractual documents, which seem to be something law enforcement agencies feel more comfortable with releasing. Anything pertaining to the actual use of Stingray devices still remains heavily shrouded, thanks in no small part to the intercession of the federal government.

Still, there is some useful information to be gleaned from the responsive documents, not the least of which is the fact that the DHS will happily fund local law enforcement's surveillance technology if they cross themselves and say the word "terrorism" three time during the requisition process.

The entire purchase is itemized on the request form under "Homeland Security." Specifics are redacted, not only on the purchase order, but also the letter from the governor's office signing off on the acquisition. But a few details manage to escape the black marker. The letter from the governor's office notes that this is no normal purchase.

The Illinois State Police has issued a request for a Procurement Code exception in order to covertly purchase [redacted] from Harris Corporation for conducting covert investigations. This exception is requested so that the Illinois State Police may purchase components directly from the vendor and decrease the possibility of sensitive information being disseminated inappropriately.

And this bit of sloppy redaction allows part of what must be a very ominous sentence to be revealed:


If you can't make it out, the last three words of the redaction are "weapons of mass destruction." The letter also confirms that the purchase is funded by a DHS grant.

As is the case when agencies reluctantly provide responsive documents, many of the documents look like they were scanned in by a poorly-trained monkey with an inner ear disorder, while others are apparently scans of tenth-generation copies made by the ancient copier kept around past the point of usefulness solely for responding to FOIA requests. This helps keep much of the text from being searchable, and in some cases early on, even legible.

Other points of interest include wording in the Harris contract. As has been pointed out before, Harris ties law enforcement up with non-disclosure agreements that (supposedly) prevent them from ever revealing information like this or, indeed, seeking warrants before using the equipment. Things may have changed since 2008 (when this requisition was completed), but the wording here doesn't seem to be nearly as extreme as the interpretation provided by law enforcement agencies.

A. Publicity. Neither party will, without the prior written consent of the other party: (a) make any news release, public announcement, denial or confirmation of this Agreement or its subject matter, or (b) in any manner advertise or publish the fact of their Agreement.

This contractual language seems rather minimal as compared to what has surfaced more recently.

"The Harris (REDACTED) equipment is proprietary and used for surveillance missions," the agreement reads. "Its capabilities can only be discussed with sworn law enforcement officers, the military or federal government. This equipment's capabilities are not for public knowledge and are protected under non-disclosure agreements as well as Title 18 USC 2512."

Apparently, Harris felt added restrictions were necessary to keep the public from learning about the technology public servants were deploying against them.

This Stingray was obtained in the fall of 2008, and it appears to be the only one the Illinois State Police own. But there are documents from 2006 and 2007 showing warranty replacements and repairs to existing Harris equipment, but most likely not a cell tower spoofer.

Then there's this remarkable paragraph that's included in the letter justifying redactions, which is a masterwork of unchecked fear:

Release of the information requested would endanger the life or physical safety of law enforcement personnel. Police officers, as well as the valuable and dedicated support personnel who work with them, face unknown and unpredictable dangers every day. Recent and unpredictable attacks on police officers and other criminal justice employees and their families point to an alarming trend in violence targeted directly at those persons simply because they represent law and order. Examples of violence toward law enforcement, criminal justice personnel and their families include: the shootout with a suspect in California armed with an AK47 on September 11, 2011; The murder of Maywood Police Officer Tom Wood as he had finished his shift in October 2006; Violence has not only been directed toward police officers. Damon Daniels was killed November 13, 2004 during a home-invasion robbery at the home he shared with his mother, Gery Gilbert, a secretary for the Oakland, California Police Department. In Texas, Kaufman County District Attorney Mike McLelland, his wife Cynthia, and Assistant District Attorney Mark Hasse were murdered by former Justice of the Peace Eric Williams in purported retaliation for prosecution of Williams for theft, which resulted in Williams losing his position as Justice of the Peace. Additionally, in April 2013, two members of a white supremacist prison gang were arrested for the murder of Colorado Department of Corrections head Tom Clements. Finally, consider the murder of the husband and mother of Judge Joan Lefkow. The suspect in that case, Bart Ross, was upset with Judge Lefkow because of an adverse ruling in a medical malpractice case. These are just a few incidents of violence directed at police officers, criminal justice system employees and their families.

There's no real trend here. Law enforcement is safer than it's been in 50 years. The only thing "alarming" is that the state police are using a highly-subjective fear to make supposedly "objective" redactions -- ones that weigh the public interest rather than just a handful of unrelated events scattered over a decade.

The most notable aspect of the documents is what it confirms: that law enforcement agencies are leveraging terrorism fears to acquire pervasive surveillance technology (that was initially developed for use in war zones) -- and that the DHS is more than happy to oblige them by funding the purchases. This intertwining of law enforcement and national security explains the federal government's intercession in Freedom of Information denials.

[Postscript: bonus points for anyone who can figure out why a regular DUI bust police report was included in the responsive documents (embedded below).]

Filed Under: crime, dhs, law enforcement, stingray, terrorism

FBI Joins The 20th Century, Will Begin Using Recording Equipment During Custodial Interviews

from the already-in-progress... dept

No, that's not a typo. The FBI has finally reached the 20th century when it comes to advancements in recording technology. No longer will records of custodial questionings be limited to agents' handwritten notes -- the sort of thing that's impossible to independently verify and prone to "spin" by the transcriptionist. (via emptywheel)

There was no news release or news conference to announce the radical shift. But a DOJ memorandum obtained by The Arizona Republic spells out the changes that will begin July 11.

"This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody," says the memo from James M. Cole, deputy attorney general, to all federal prosecutors and criminal chiefs.

"This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,'' such as in the questioning of witnesses.

As you can see, there's still a loophole for these agencies to exploit. They'll be "encouraged" to record non-custodial questioning, but there's no direct stipulation requiring it. On the plus side, this is a huge improvement over the previous method: handwritten notes taken by agents on a "302 form." Not only were the notes highly subjective, but they also tended to be destroyed as soon as possible. Others weren't even transcriptions of interviews, but were written after the fact using nothing more than an agent's power of recollection. This has obviously led to abuse, as well as to plain old carelessness.

The failure to maintain electronic records of interrogations also created gaps in FBI intelligence gathering, especially involving terrorism cases. Instead of maintaining an accurate and largely indisputable record, agents on the witness stand for decades have relied on their memories, interpretations and handwritten notes transcribed into a form known as the 302.

Critics have said that flawed system results in botched investigations, lost evidence, unprofessional conduct and false convictions. They noted that the historic DOJ practice was problematic in trials of suspects like terrorist Osama bin Laden, TV star Martha Stewart and Oklahoma City bombing defendant Terry Nichols, along with thousands of defendants with no public exposure.

Of course, those who prefer the old, unaccountable way are still raising objections, despite the fact that recording custodial interviews has been common practice in less-cutting edge local law enforcement agencies for decades.

Nancy Savage, executive director at the Society of Former Special Agents of the FBI, said there's probably no unilateral view from field agents. Although tape recorders sometimes intimidate suspects, she added, the change was probably inevitable because juries have come to expect audio and video evidence.

The FBI's other rationale for pen-and-paper-only has been that jurors might be persuaded to acquit someone if they were made aware of tactics used by agents to secure a confession.

In 2006, the New York Times uncovered another explanation for the DOJ policy, spelled out in an internal FBI memorandum. Basically, it argued that jurors might be offended, possibly to the point of acquitting defendants, if they observed the deceit and psychological trickery legally employed by agents to obtain information and confessions.

This would seem to be a problem the FBI needs to solve, rather than just expect the public to go along with its your-word-against-ours policy. The fact that the DOJ's several agencies need to be pushed into providing something more verifiable than an agent's slanted recollection of an interview is a sad statement on the mentality of those employed by these agencies. For them, it's been a long, easy ride, where any abuse under the old system could be mitigated by the agencies' "fighting the good fight" excuse. After all, they're chasing down drug dealers and terrorists. Who are we to question their methods?

Well, we're the public and we've been expecting accountability from our government agencies for a long time. And they've been in no hurry to provide it. By "boldly" pushing the ATF, DEA and FBI into the last half of the 20th century, Deputy AG James Cole is finally nudging his charges in the right direction. To be sure, recording devices can be tampered with, misplaced or simply never activated, but it's still a huge step forward from the agencies' long-held preference for pen, paper and subjective portrayals.

Filed Under: fbi, interrogations, interviews, law enforcement, recording

DHS Fusion Centers Monitored Occupy Wall Street Activities Using Powerful Tools Like... Google... And Twitter

from the blowing-money-fast dept

The government's extreme reactions to the Occupy Wall Street movement have been well-detailed here at Techdirt. The fact that most of what the Occupy movement did was protect free speech seemed to be lost on the many agencies -- both at local and national levels -- that opened investigations or abused their power in order to silence protesters.

The New York Times has obtained several documents detailing the DHS Fusion Centers' involvement in providing intel and investigative services during the nationwide spread of Occupy protests. What the documents show is a mismanaged hydra of input, each with its own ideas about what should be considered worthy of investigation.

When the Occupy protests spread across the country three years ago, state and local law enforcement officials went on alert. In Milwaukee, officials reported that a group intended to sing holiday carols at “an undisclosed location of ‘high visibility.’ ” In Tennessee, an intelligence analyst sought information about whether groups concerned with animals, war, abortion or the Earth had been involved in protests.

And in Washington, as officials braced for a tent encampment on the National Mall, their counterparts elsewhere sent along warnings: a link to a video of Kansas City activists who talked of occupying congressional offices and a tip that 15 to 20 protesters from Boston were en route. “None of the people are known to be troublemakers,” one official wrote in an email.

The definition of "terrorism" has become incredibly fluid in the years following the 9/11 attacks. Consequently, much of what was determined to be of interest to the Department of Homeland Security was nothing more than the act of protesting, something that has been a part of this nation since its very beginning. More than 4,000 pages were released to the New York Times, detailing the worries of multiple law enforcement agencies around the country. While there seems to be no evidence of outright surveillance (read: interception of communications), there is evidence that many agencies viewed those in the movement as persons of interest.

While some agencies (like Tennessee's) seemed to lapse into a state of paranoia, finding any sort of "social movement" to be possibly suspect:

The Boston Regional Intelligence Center, one of the most active centers, issued scores of bulletins listing hundreds of events including a protest of “irresponsible lending practices,” a food drive and multiple “yoga, faith & spirituality” classes.

Others rightly recognized that Occupy protests were Constitutionally-protected and opted out of providing intel.

An intelligence officer at the Delaware center responded to an inquiry about Occupy with an email that said, “Our fusion center has distanced itself from the movement because of 1st Amendment rights and because we have not seen any criminal activity to date.”

Tragicomically, reports also portray activities such as not shopping as cause for concern.

The report examined protesters’ “attitude towards retail,” suggested that business could be disrupted on the day after Thanksgiving and listed several “specific known threats.” They included credit card detractors equipped with scissors at malls and posters offering “help for people who want to put an end to mounting debt and extortionate interest rates with one simple cut” and a group of people who had declared on a website that they would “intentionally forgo the shopping frenzy.”

To be clear, large-scale protests are something local law enforcement should be prepared for, and some intelligence gathering is to be expected. Protests like these, including those specifically aimed at disrupting businesses, travel, etc., should expect some sort of law enforcement response. But when it transfers to a national level, the local response aspect is lost, buried under a deluge of overblown concerns and the Fusion Centers' ability to see terrorism in nearly every act -- even those protected by the Constitution.

Once you get past the potential chilling effects of the Fusion Centers' overenthusiastic collecting of Occupy information, you arrive at something just as upsetting: it's a complete waste of taxpayer funds, something a Congressional investigation uncovered two years ago. (Of course, the DHS has yet to be held accountable for its failings...) It would be one thing if the DHS' worst aspects actually resulted in useful leads and the prevention of domestic terrorism. At least then, the agency would be able to justify the millions of dollars handed out to Fusion Centers. But when your "intelligence gathering" could be performed by anyone with a functional knowledge of the web, you're not really in the "intelligence-gathering" business, no matter what awesome, go-team-USA nameplate is hanging over the door.

It appears that they kept track of Occupy the same way everybody else did if they were so inclined—they looked stuff up online about them and summarized it. The documents are full of links to news stories and videos posted online. One e-mail sent out to multiple fusion centers simply explains how to use Google and Twitter to track publicly listed Occupy activities in various cities.

This appraisal by Julian Sanchez is even harsher. The prized Fusion Centers offer nothing that can't be provided by local law enforcement -- a lack of service we, as taxpayers, pay a premium for.

But even leaving aside any concerns about First Amendment–chilling effects, there’s simply no reason for the federal government to be footing any of the bill for local police functions. If, as it seems, fusion centers serve no real homeland security purpose, let’s shut them down and assume municipal cops are perfectly capable of carrying out traditional crowd control functions without help from Washington.

The Fusion Centers have done very little to shore up America's counterterrorism efforts. Instead, they've created huge databases of First Amendment-protected activities portrayed as potential terrorism, from people photographing public buildings and structures, to protesters threatening to avoid Black Friday sales. You may not be able to put a price tag on safety, but you can definitely make a very good guess as to how much money's been wasted.

Filed Under: dhs, fusion centers, law enforcement, occupy, surveillance