Hawa Allan | Longreads | September 2017 | 3580 words (15 minutes)

“Big Brother” has become shorthand for the inescapable gaze of governmental authority, first defined by George Orwell in his novel 1984. Everywhere yet nowhere, Big Brother is all-seeing and all-knowing, surveilling not just every person’s movement, but every thought. Where Orwell referred to illicit states of mind as “thoughtcrimes,” Philip K. Dick called them “precrimes” in his 1956 short story “The Minority Report,” in which a futuristic police force arrests subjects for crimes long before they are committed. While Big Brother has become common parlance, the precrime unit illustrated by Dick is a more apt portrayal of the tools authorities have at hand to enforce the law, and commercial entities use to market their goods, in our digital age.

I reached out to Nathan Wessler, a staff attorney with the ACLU’s Speech, Privacy and Technology Project for a sober assessment of how the current state of governmental surveillance compares to the dystopian futures imagined by Orwell and Dick. When Target can determine if teenager is pregnant before her parents know, does the end of our anonymity as consumers mean the end of our rights to privacy as citizens?

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What exactly does the ACLU’s Speech, Privacy, and Technology Project do?

We monitor governmental use of surveillance technologies, and law enforcement’s access to sensitive and private data about civilians that is held by other entities: email held by Google, for example, or cell phone location records held by service providers, or searches of our electronic devices, like our phones and laptops when we’re coming back into the U.S. after an international trip. We also consider what limits should be put on a warrant when police want to get access to the contents of the laptop kept in your house, or the phone in your pocket if you were to get arrested.

The way that we store our sensitive information is totally different than it was at the time of the framing of the Constitution, so we cover a whole set of issues about how the Fourth Amendment, which is now well more than two hundred years old, can continue to be vital in protecting our privacy in this digital age.

What kind of electronic surveillance devices are law enforcement using these days?

There are devices that are called “Stingrays” or “cell site stimulators,” which mimic cell phone towers. They are often installed in the back of a police car. Smaller versions can be held by hand and more powerful versions can be installed on aircrafts.

Police drive or walk around with them, sending out a signal that says, “Hey I’m a Sprint tower, or I’m a T-Mobile tower,” which forces every phone in the area to report back. The goal is to suck in a list of all the phones in the surrounding area—often in an attempt to find one particular suspect’s phone, and then hone in on exactly where it is located.

This technology raises serious privacy concerns, partly because of the dragnet effect — it affects lots of bystanders — and partly because it locates people not just on public streets, but inside homes or offices, which are constitutionally protected spaces.

For years—decades actually—police used these devices but didn’t disclose them to judges or defendants in pre-trial discovery; defendants had no idea that they were under surveillance, and couldn’t challenge it. I have seen court filings or investigative reports made during the police investigation, before they even get to a court, where police say they found the suspect using a confidential or unnamed source.

Which implies this source is an actual human, rather than a technological method of surveillance…

Exactly. There is a well-developed body of law in the criminal system about shielding the name and identity of confidential informants to protect their safety. Any normal defense attorney would see that phrase and think a cooperating suspect or defendant flipped on their client, which happens all the time; when in fact, police were using this highly invasive technological surveillance tool, hiding it very effectively from everyone in the system.

So theoretically, there could be surveillance and tracking tools that are being used by law enforcement that aren’t public knowledge.

We see examples of this over and over. The same dynamic that was an issue with the Stingray device was a factor in police adoption of automated license plate reader technology: high-speed cameras, which take thousands of pictures a minute, record all the license plates they see and then feed them into gigantic databases. Police were not advertising the fact they were adopting these readers and storing millions of location records of people driving around.

Just recently, the city of Baltimore — without any public discussion, without going to the city council, without alerting the public at large — entered into a contract with a company to do persistent aerial surveillance. Police flew loops over parts of Baltimore with wide angle, high-definition cameras, capturing everything that was going on: every person walking down the sidewalk, every car driving down the street. They could press rewind at anytime and have a historical record of people moving around in public spaces.

Those kinds of surveillance techniques are very powerful and very invasive. As a society, we may well decide that some of them are okay, or some of them may be okay only with very strict limits, or some of them we may decide should never be used. But we can’t have those debates if we don’t know what’s going on in the first place.

Under the Fourth Amendment, there is the idea is that there should be either probable cause or reasonable suspicion of criminal activity before a police officer is constitutionally allowed to search a suspect or search their belongings. But could this technology give police insight into a person’s history, which could then be used to retrospectively establish probable cause?

Yes, that is absolutely part of the problem. Before police are allowed to do an invasive search, the Fourth Amendment requires going to a judge and demonstrating probable cause that a crime has occurred and that the suspect has evidence of this crime in the place they want to search. Only after this process do they get a search warrant. That’s the gold standard under the Fourth Amendment; that’s what police across the country do hundreds—maybe thousands—of times a day.

Once these new technological surveillance devices come out into the open, police often say, “It’s ridiculous to say we need a warrant before using the technology, because we want to use this technology in order to access to information to develop probable cause in order to go get a warrant and search the house.” It’s a totally circular argument.

There are investigative techniques outside of this technology that police can use before they have probable cause for a search; they can talk to informants, they can ask to voluntarily interview a person, they can often look through trash on the curb. There are lots of things they can do.

But these techniques are limited in scope…

That’s right. They aren’t the kinds of searches that delve into our most protected and private spaces, or our most sensitive data. One of the debates about these kinds of technologies is whether you should have to get a warrant before employing them at all.

And certainly, for Stingray devices, we argued very strongly that a warrant should be required. We have a case in the Supreme Court that will be argued in November about whether police need a warrant to go to your cell phone company and get your historical cell phone location records.

So this technology expands the tools the police can use to establish probable cause or reasonable suspicion, but in doing so they may be trammeling over our privacy rights…

“Expanding” is exactly the right word because it’s an expansion of the powers that the government has. It’s unprecedented, right? Never before in the history of this country, really the history of human civilization, have governments and law enforcement agencies had the powers that they have today conferred by technology.

In 2012, the Supreme Court heard United States v. Jones, about GPS tracking of a car. The question posed to the court was: Is this a search under the Fourth Amendment? Does the Fourth Amendment apply when police put a GPS tracker on a person’s car without their knowledge, and then use it to follow them everywhere? The Court unanimously said yes, the Fourth Amendment regulates this activity.

That kind of radical expansion of governmental power disrupts the balance between the people and the state in ways that the Constitution is intended to regulate. One of the jobs of courts in this digital age is to make sure that the constitutional guarantee of privacy in the Fourth Amendment keeps us at more or less a constant level of privacy protection, even as these new technological tools are available to police.

What are other examples of the Supreme Court’s take on this issue?

There was a case in 2001 about whether police need a warrant before using a thermal imagining camera to see what’s going on in a house. In this case, they were looking for marijuana grow lights, which throw off an unusual amount of heat. In a very strong opinion for a majority of the court, Justice [Antonin] Scalia explained that the warrant is required. He stated that part of the function of the Fourth Amendment is to preserve the level of privacy that we had in the 1700s, before this digital technology was available. And, in 1791, we decided as a society that police need a warrant if they want to enter your house and search for it. Here and now, we have technology that allows them to see into your house without entering it. We should draw the same lines. Get a warrant before looking through those walls, whether it’s by knocking them down or using a camera that can see heat.

What about the worry that there could be some sort of preemptive style of policing that uses this technology? Like a “Minority Report” situation?

Yes, it’s a real concern. One example is the National Security Agency’s call records surveillance program that the ACLU challenged in court; Congress scaled back this program, partly as a result of our court challenges. The government was collecting information about every call made by Americans — who you were calling, how long the call lasted — and then tried to map out the webs of connections between who calls who and how often, with the stated goal of preventing terror attacks. You can tell quite a lot about individuals and about society as a whole when you do that.

There is also a growing adoption of prediction algorithms by police departments. It’s almost exclusively proprietary software they’re buying from private companies, and sometimes they’re using this data to make decisions about policing or other criminal justice activities. Chicago is a well-known example. There’s a heat list of people that the city, by using one of these algorithms, has decided are at a particularly heightened risk of being involved in violent crime and gun violence, either as perpetrators or victims.

Now, about police body cameras…

Body cameras are a really important, and really difficult area under the law. The ACLU supports police body cameras, but only if they have the right policies in place at a department level and at the state legislative level. Body cameras can be a tremendous tool for police accountability. In the last five years we’ve seen many examples of video of police misconduct from body cameras and also from bystanders.

The Black Lives Matter movement has been energized and facilitated by these visuals. The Rodney King video was also an extraordinary, unusual outlier at that time. Today, we’ve seen dozens of those kinds of videos—hundreds—and that makes a big difference. Knowing that there will be video of encounters between police and citizens can serve as a deterrent to police from potentially violating people’s rights and can serve as evidence of alleged wrong doing. Or it could vindicate police if there’s an allegation against them that turns out not to be right.

At the same time, body cameras could easily turn into a tool of mass surveillance, right? Especially in a place like New York City, where there are tens of thousands of police officers walking around on the streets all day long, concentrated in communities of color. Having always-on video cameras attached to every one of those bodies raises really serious concerns.

And then you start thinking about advances in technology that are not very far away, pairing those body cameras with real time facial recognition algorithms. The technology exists and it’s getting better all the time. They could use databases of driver’s license photos or booking photos or other publicly available or proprietary databases of people’s photos, and then run these algorithms on real time video to put a name, address, and a Social Security Number on random people.

You can imagine a police officer with something like a Google Glass display that suddenly highlights someone’s face and informs the officer that the person has a warrant for an unpaid ticket. That’s a tremendously chilling prospect.

What about border checkpoints and the privacy issues that arise there?

This is a really important issue and not a new one. The traditional rule at the border for many, many years has been the suspension of the normal requirement of a warrant before police search your private things. Border authorities are generally allowed to search the physical items you have with you whenever they want to. They don’t have to have particularized suspicion or make any showing to a judge. So, if they want to search somebody’s luggage to look for fruits and vegetables that are banned, or for guns or for smuggled artifacts, they’re allowed to do that.

The justification that the Supreme Court has given for relaxing the normal protections there is that there’s a strong national interest in preventing importation of dangerous items and of contraband. The question is whether that old rule that dates well before the digital age should also apply to searches of the contents of our electronic devices. Should we be allowing border agents to be poking around in our cell phones or downloading the entire contents of our cell phones and running forensic search software against them, which turns up not just all our files but all the meta data, all deleted items that haven’t yet been overwritten.

We think that the old rule shouldn’t apply here; that police actually should have to get a warrant before searching your belongings. There’s an unprecedented diversity and depth and sensitivity of information on our phones.

Take email: Before the digital age, people generally didn’t keep copies of every piece of mail that they sent and received from people. When you sent your physical mail out, it’s gone. With our email accounts today, it’s free to store hundreds of thousands of your messages, and people keep everything in perpetuity.

The phone in your pocket all of a sudden has an incredible amount of private information. We’ve been working on this issue for years to try to raise the legal standard so that border authorities need to have a good basis of suspecting you of wrongdoing before they can get into your laptop or your phone.

What is your general view on how the consumer adoption of certain technologies interacts with the surveillance powers of the government? If someone is already using voice recognition technology with his or her bank, or if the new iPhone can automatically recognize your face, does the acceptance of these tools by consumers make it more difficult to argue that the government should limit its own use of them?

One of the ways to analyze whether the Fourth Amendment has been violated is by deciding whether people have a reasonable expectation of privacy in a place or with respect to an item or a set of information. This kind of difficult analysis is not guided by firm rules. Judges try to determine whether a given privacy interest is one that society in general recognizes as reasonable and important. There is potential that as people get used to, get inured to, certain types of data collection in their private lives, courts may think that they are implicitly fine with the government getting access to that same stuff.

For example, the Third Party doctrine is maybe the greatest impediment to protecting our privacy against government in the digital age. The idea is that when you have shared information or records with a so-called “third party” — including a company or a business you have a relationship with — you’re deemed to have given up your privacy interest in it. This doctrine originated in cases where a defendant told an associate of theirs some sensitive information — for example, that they had committed a crime — and that associate decided to tell the police. The court decided that the defendant does not have a privacy interest in this information.

In the 1970s, the Supreme Court tried to expand that doctrine to cover records held by businesses. One case involved the phone numbers that someone dials—at that time on a rotary phone—when trying to connect a call. The majority of the Supreme Court said that if the police go to the phone company to request those numbers that you are dialing, this doesn’t violate your Fourth Amendment rights because you should know that you’re voluntarily giving that information to the phone company.

I don’t think that was a correct outcome at the time, but it certainly has not stood up well as the digital age has developed. Today, it is virtually impossible to go about your daily life — maybe literally impossible — without creating a trail of digital breadcrumbs behind you, including very sensitive information.

The case that we’re litigating in the Supreme Court is about cell phone location records. Every time you use your cell phone to make or receive a phone call, send or receive a text message, or even when your phone is sitting in your pocket just automatically checking for new emails or social media messages, a cell phone company is recording a record of where the phone was and which cell tower it was connected to.

The government has been getting access to these records largely without getting search warrants and without demonstrating probable cause. We think this violates the Fourth Amendment, but the government’s argument is that the same Third Party Doctrine applies. We believe that’s a gross misreading of how people actually interact with technology and is a path to real ruinous consequences for privacy. That same logic would also apply to emails archived on Google or Yahoo, to medical records stored in secure databases .

I sometimes hear people say, “Well, I have nothing to hide.” What would you say to someone who says he or she has nothing to hide?

We all have something to hide. It doesn’t mean we all have incriminating information, that we committed a serious crime and that we’re on the lam. But I challenge anyone to show me a person who truly has no part of their life that they don’t want broadcast to the world. Take cell phone location records, which can tell you whether a person goes to psychiatrist’s office or stops off on the way home from work at an AA meeting or to a liquor store. Do you sleep at home on a night or in someone else’s house three miles away ? Those records can reveal a lot of sensitive information that people generally want to keep some control of.

But even if someone thinks that they truly have nothing to hide — that they’re totally comfortable with their life being an open book — part of the design of these constitutional privacy protections is to recognize that there are other members of our society who we have a real interest in protecting from suspicion-less, unjustified government surveillance. Political dissidents, activists, people in political movements, LGBTQ, and racial minorities. Right there, there is a long, well-known and detailed history of government harassment of and disproportionate policing of vulnerable communities. And these kinds of privacy protections actually function as a wall between that kind of harassment and people who are the most vulnerable to it.

So part of the question is, what kind of society do we want to live in? Nobody’s saying police can never get access. We’re saying go to a judge first: show probable cause in a particular case as to a particular suspect and get your search warrant. And then you can do your surveillance or gather your information.