Wednesday, April 1, 2015

Uncovering Secret Surveillance

It’s hard to read the newspaper these days without coming across an article describing yet another powerful government surveillance tool, often one that has been used for years without being disclosed to the public.  The most striking recent example is the use of stingray surveillance devices by local law enforcement around the country.  The secrecy has been so thick in part because the FBI requires law enforcement agencies to sign non-disclosure agreements before acquiring stingrays.  In this sort of environment, what’s a diligent criminal defense attorney to do?

This is not an easy question to answer.  The first step is simply to be aware of the broad range of surveillance technologies available today.  We’ve known for years that law enforcement agencies can obtain cell phone usage information from cell phone companies.  Now we are getting a better understanding of stingrays, which force cell phones to register their location with the device.  A police officer can use a stingray to drive around a neighborhood to pick out the location of one phone whose identifying information is known, or she could use it to identify all phones at a particular location. 

Another commonly used surveillance tool is the automatic license plate reader.  These cameras are mounted on patrol cars or on fixed objects such as highway overpasses and snap photos of every passing car.  They convert cars’ plate numbers into machine-readable text and check those numbers against lists of cars that are wanted for various reasons.  But more than that, all of this data—the cars’ locations, the photo, the plate number—increasingly get dumped into large databases that can then be searched historically.

And although their practical use may be a bit further off, there is an array of powerful aerial surveillance tools in development and in limited use.  Although small drones flown by individuals and police departments have garnered the most attention, more interesting is the idea of wide area surveillance that monitors an entire city in real time (as well as generating footage that can be reviewed later).

Some of these technologies are more likely than others to be used in relatively routine law enforcement investigations.  That’s the case for obtaining cell phone records from phone companies and using license plate readers and stingrays.  Of course, that doesn’t mean that district attorneys will be forthright about their use of these technologies—far from it.  It’s been well documented by now that prosecutors have made a deliberate strategy decision to conceal as much as possible about their use of stingrays—and in some cases, they’d rather settle than reveal more.

This secrecy has a number of negative consequences.  For individual criminal defendants, it makes it difficult even to formulate a suppression argument.  And for the criminal justice system more broadly, it means that Fourth Amendment case law addressing the use of these technologies is slow to develop.

There are some resources out there to help, although more could definitely be done in this area.  On the stingray issue, the ACLU of Northern California put together a terrific paper on the topic, designed to describe stingrays, help criminal defense attorneys figure out if one was likely to have been used in their cases, and outlines potential arguments for a motion to suppress.  (You could also check out this brief.)  On obtaining cell phone location records from phone companies, check out this Sixth Circuit brief the ACLU and others filed on historical cell site location data.  For a recent brief on real-time tracking, here’s one brief recently filed before the North Carolina Court of Appeal.

Catherine Crump
Assistant Clinical Professor
Berkeley Law School

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