Turns Out Cell Phone Location Data Is Not Even Close To Accurate, But Everyone Falls For It

from the because-of-course dept

We've frequently talked about law enforcement and the intelligence community accessing and making use of cell site location data, which looks to figure out where people are based on what cell towers they're connected to. Law enforcement likes to claim that it doesn't need a warrant for such data, while the NSA has tested a pilot program recording all such data, and says it has the legal authority to collect it, even if it's not currently doing so.

However, as anyone with even a basic geometry education recognizes, which cell tower you're connected to does not give you a particularly exact location. It can be useful in putting someone in a specific (wide) area -- or, much more useful in detailing where someone is traveling over long distances as they repeatedly switch towers in a particular direction. But a single reading does not give you particularly exact location details. I had naturally assumed that most people understood this -- including law enforcement, lawyers, prosecutors and judges -- but it turns out they do not. A rather depressing story in The Economist notes that, thanks to this kind of ignorance (combined with bogus cop shows on TV that pretend cell site data is good for pinpointing locations), cell site location data is frequently used to convict innocent people. The story opens with a ridiculous example, in which a woman was pressured into a plea bargain based on totally false claims about tower location data:

SOMEONE strangled a prostitute in Portland, Oregon in 2002. The police arrested Lisa Roberts, the victim’s ex-lover, who spent more than two years in custody awaiting trial. Shortly before the trial the prosecutor told Ms Roberts, via her lawyer, that tower data collected by Verizon, her mobile-telephone network, showed precisely where she was at the time of the murder. As her lawyer recalled, the prosecutor said Ms Roberts could be “pinpointed” in a park shortly before the victim’s naked and sexually assaulted corpse was found there. She was told she faced 25 years to life in prison. She accepted a deal to plead guilty and serve 15 years.

But the high-tech evidence against her was bunk. Routinely collected tower data can place a mobile phone in a broad area, but it cannot “pinpoint” it. That would require a special three-tower “triangulation”, which cannot reveal past locations. It took a decade for Ms Roberts’s guilty plea to be thrown out. On May 28th she left prison, her criminal record clean, after nearly 12 years in custody.

Obviously, things like GPS do allow for much more precise targeting of location (which may be why the NSA is focusing on that instead of cell site location data), but too many people confuse cell site location data with GPS. What's ridiculous is that this mistake isn't just being made by random people -- but prosecutors and lawyers responsible for criminal cases that can destroy an innocent person's life.

This really points to a larger issue: people have this tendency to believe that technology can answer all questions. The NSA's fetishism of surveillance via technology is an example of this. There's data there, so it becomes all too tempting to assume that the data must answer any possible question (thus, the desire to collect so much of it). But the data and the interpretations it can lead to are often misleading or simply wrong. And that's especially true when dealing with newer technologies or forms of data collection. That the criminal justice system could go decades without everyone recognizing the basic geometric limits of cell site location data based on a single cell is... both astounding and depressing. But it's also a reminder that we shouldn't assume that just because some evidence comes from some new-fangled data source it's automatically legitimate and accurate.

Filed Under: accuracy, cell site location data, gps, location data, plea bargains, prosecutions

Is It A Shakedown When The Gov't Does It? SEC Much Less Likely To Prosecute You If You're A Big Campaign Funder

from the nice-business-here.-wouldn't-want-to-see-an-sec-investigation-happen-to-it dept

In the past, we've highlighted some questionable activities by the SEC, which is supposed to be stopping financial fraud, but often seems to be both arbitrary and capricious in its activities. However, reporter David Sirota is highlighting how the SEC is much less likely to prosecute a company if that company happens to be a big political contributor, because, well, duh. This is based on some recent research by Maria Correira at the London Business School on Political Connections and SEC Enforcement, which found that there's a pretty clear correlation.

If, as the saying goes, justice is blind, the data would show little correlation between firms' political expenditures and their likelihood of being prosecuted. Instead, Correira found that "politically connected firms are on average less likely to be involved in an SEC enforcement action and face lower penalties if they are prosecuted by the SEC." Specifically, Correira discovered that firms that increased their PAC contributions by $1 million over five years ended up halving their probability of being prosecuted.

Yes, correlation is not automatically causation, yada yada, but that doesn't mean there isn't a causal relationship here. I guess it's possible one could argue that a company that increases its PAC contributions is somehow less likely to be also engaged in financial shenanigans, but I'm not sure anyone would actually buy that.

There are some other bits of data that don't speak particularly kindly to the motives of SEC folks, such as that old revolving door:

Data from the Project on Government Oversight has documented that since 2001, more than 400 former SEC officials filed disclosure forms documenting their plans to represent firms before the SEC. Correira's report shows that this revolving door also influences financial prosecutions, as companies that employ lobbyists who once worked for the SEC "experience a larger reduction in the probability of enforcement and in penalties than those that do not."

Of course, it might not be entirely the SEC's fault. As Correira suggests, the SEC may be responding to basic incentives itself, in noting that investigations and prosecutions of politically "friendly" firms may create "political consequences for itself and its budget." Sirota more or less got a former SEC official to admit that this all goes into the thought process:

In an interview with IBTimes, former SEC counsel Scott Kimpel acknowledged that the agency does have to weigh how to best maximize its limited resources.

"At the end of the day, the SEC only has about 1,000 enforcement officials, so they can't possibly go after every single case of wrongdoing," he said.

As Sirota again notes at the end of his article, this issue is not just for the SEC, but for other federal agencies as well, including the DOJ, which more or less admitted that it wouldn't prosecute Wall Street firms connected to the 2008 financial mess, because it might have "a negative impact on the national economy."

It's not clear how you directly solve this issue, but it certainly does seem like a very real problem. Between the revolving door and the power of campaign contributions, it's been quite clear for a long time that the government is not the people's representatives any more (if they ever were).

Filed Under: campaign finance, funding, investigations, maria correira, politics, prosecutions, sec

Aaron Swartz's Death Leads To Public Attention Towards Prosecutorial Overreach

from the about-time dept

While we're already seeing things like Rep. Zoe Lofgren's attempt to reform the CFAA, and Rep. Darrell Issa's plan to investigate the DOJ, one interesting thing that has come out of the tragedy of Aaron Swartz's suicide is sudden public interest in prosecutorial overreach. Many criminal defense attorneys have been screaming at the top of their lungs that the pressure put on Swartz is nothing new -- it's how the game is played. And they're right (which is, in part, why I've suggested people check out the documentary Better This World which covers a very different type of case, by very clearly lays out similar efforts by prosecutors who want to win at all costs, and use threats and intimidation to force people into a plea bargain they think is unfair, because it's better than the alternative. The movie is heart-wrenching).

Perhaps one good thing coming out of all of this however, is that more and more press outlets are suddenly paying attention to the wider issue of prosecutorial overreaction:

By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.

The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.

In recent years, as the Wall Street Journal has documented in a disturbing series of articles, Congress has enabled prosecutorial intimidation by criminalizing ever more conduct, passing laws that provide for or require extreme sentences, and reducing the burden of proof (through expanded application of "strict liability", where lack of criminal intent is no defense).

That same article goes on to note: "And if a prosecutor should turn his righteous all-powerful gaze on you, you're done for." That's it, end of story. The likelihood of winning a case after federal prosecutors take you to court is minimal. And that's waking people up to the fact that the criminal justice system is insane:

Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz's death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate points out in his 2009 book, Three Felonies a Day: How the Feds Target the Innocent, federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.

"Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career," writes Silverglate, a friend and occasional collaborator. "Whole families have been devastated, as have myriad relationships and entire companies."

We already covered some of this with Tim Wu's take on the prosecution, but it's still good to see more publications calling for change on this particular issue:

...whatever opinion one has of Swartz's politics, the American criminal justice system, in its relentlessness and inflexibility, it's unduly harsh sentencing guidelines, requires serious reexamination.

Part of that, of course, is getting the DOJ to stop focusing solely on "winning," and get them to start actually look at what is real justice. Instead, it now is clear that the prosecutors on Aaron's case were looking for a "juicy" case so they could get their names in headlines.

Heymann was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Peters said. Heymann, Peters believes, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."

So, now is the time to get beyond just reforming the CFAA or copyright laws or whatnot, but to also look at what can be done to change the situation:

But Swartz's suicide may be the first to generate widespread sorrow and outrage over common prosecutorial tactics that put ordinary as well as extraordinary citizens at risk. The increasingly voluminous federal criminal code, the vagueness of its individual offenses (numbering about 4,500 in 2007), and its harsh mandatory minimum sentences -- combined with failures of Justice Department leadership -- regularly expose law-abiding Americans to prosecution for activities they have no reason to consider illegal.

This kind of prosecutorial overreach impacts everyone in serious ways, generating lots of headlines, but doing little to nothing to actually help stop crime.

Filed Under: aaron swartz, carmen ortiz, overreach, prosecutions, us prosecutors

'Under American Law, Anyone Interesting Is A Felon' - Tim Wu On The Prosecution Of Aaron Swartz

from the destroyed-to-protect-imaginary-property dept

The reactions to Aaron Swartz's suicide continue to pour in and the recurring theme is one of disbelief at the government's hard nosed prosecutorial stance towards Swartz's actions. The Secret Service, for unknown reasons, took over the case and the prosecutor insisted on a guilty plea across the board as well as pretty much guaranteeing jail time for the hacker.

Tim Wu's excellent editorial details how the justice system made a mockery of that first word by relentlessly applying pressure to a young man whose "crime" was truly victimless.

The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.

This fact cannot be overstated. JSTOR itself declined to press charges against Swartz once its "property" was recovered. But this wasn't good enough for the federal prosecutor who took an outdated law and applied the interpretation that would do the most damage.

In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest.

Wu says this targeting cut down a genius in his prime -- a curious and impulsive young man whose actions were actually less illegal than those of two computing pioneers, Steve Jobs and Steve Wozniak, who hacked AT&T's system for free long distance calls and sold "blue boxes" so others could do the same. They were never prosecuted for their actions and went on to found Apple -- something a prosecutor like Ortiz could have made impossible.

"We can rightly judge a society by how it treats its eccentrics and deviant geniuses—and by that measure, we have utterly failed," Wu says. And why? Because an adversarial, zealous prosecutor put in charge of the right case can wreak an incredible amount of havoc in pursuit of "justice."

Yes, most of the time prosecutors do chase actual wrongdoers, but today our criminal laws are so expansive that most people of any vigor and spirit can be found to violate them in some way. Basically, under American law, anyone interesting is a felon. The prosecutors, not the law, decide who deserves punishment.

Between the system of IP laws that awards fees for imaginary damages and a government that views any information leaks as criminal activity, Swartz never had a chance -- and sadly, unless there are major changes in the system, neither will his successors.

In an age when our frontiers are digital, the criminal system threatens something intangible but incredibly valuable. It threatens youthful vigor, difference in outlook, the freedom to break some rules and not be condemned or ruined for the rest of your life. Swartz was a passionate eccentric who could have been one of the great innovators and creators of our future. Now we will never know.

An effort to increase public knowledge, with no profit motive, as misguided and rash as it may have been, was rewarded with an intense crackdown, even after the "victim" had stated it was satisfied with the outcome. No matter your view on intellectual property, it should never have come to this. Swartz brazenly exploited loopholes to liberate documents he felt should have been public domain in the first place, much as he legally exploited free usage of the PACER system earlier.

It's very tempting to couch this discussion in language that pays its due to "rights holders." Swartz somehow needed to be punished for his deeds, even with some sort of slap on the wrist, because it was legally or morally wrong. MIT was abused. JSTOR was abused. The IP system -- the status quo -- was abused by Swartz's actions. That's the way we're programmed to feel. That no matter the overreaction, we need to give some quarter to the reacting parties. But when it comes to this situation, it feels completely wrong.

Wu's take shows just how dangerous this form of dues-paying is -- grant the system a little token respect before heading off into the "but" section of the argument and you've already justified a reaction. If the reaction seems too harsh, it's too late. You've already implicitly granted the system the right to punish perceived wrongs, something it often handles with ineptness or vindictiveness, and in worst case scenarios, large quantities of both.

The system has little use for rebels, innovators, and the internet-native element that threatens cherished IP institutions. It wasn't pleased with Swartz and the best way to discourage more Swartzes from leaping into action was to lock up the original, or bleed him dry with an extended legal battle. It ended up with nothing. Or rather, it ended up creating a martyr and rekindling a movement -- "nothing" would have been better. There will be more like him and, if the system remains unchanged, they will have their futures extinguished as soon as their actions put them in the firing line. The protected works are quantifiable. The extinguished possibilities verge on endless. 

Filed Under: aaron swartz, felonies, prosecutions