What is a Stingray? How does it work? Is it a good idea to make police wear body cameras? Should officers be able to turn these cameras off? What about the privacy of the civilians being recorded? Should law enforcement agencies have access to drone technology? Where do we have a reasonable expectation of privacy?
Matthew Feeney and Adam Bates join us this week to discuss new technologies available to law enforcement agencies in America, and the legal implications of these technologies.
Where does a right to privacy apply in these new eras of government data collection? How should we balance police effectiveness and respect for Fourth Amendment privacy rights?
Trevor Burrus: Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I’m Trevor Burrus.
Aaron Powell: And I’m Aaron Powell.
Trevor Burrus: Joining us today is Matthew Feeney, Policy Analyst at the Cato Institute, and Adam Bates, Policy Analyst at Cato’s Project on Criminal Justice. Welcome to Free Thoughts, gentlemen.
Matthew Feeney: Thanks for having me.
Adam Bates: Glad to be here.
Trevor Burrus: So of course in all areas of life technology is changing pretty fast and today we’ll be talking about technology is changing law enforcement. And just as an overview of the kind of stuff you guys are working on, what are we seeing – before we get down into specific technologies – what are we seeing immediately on the horizon of like big technological changes for law enforcements and police?
Matthew Feeney: Well speaking for the kind of research that I’ve been working on I think that lots of changes in technology that we’ve witnessed in the civilian world are making their way to law enforcement. So it’s not just miniature cameras but it’s also drones – technology that is used among law enforcement isn’t quite as popular to people like you and me, it might be things like facial recognition software and things like that. And perhaps even further along in the horizon we have things like artificial intelligence and automated surveillance and things like that.
Trevor Burrus: And hover boards.
Adam Bates: And to add on to what Matthew said, it’s not just technology from the civilian world making its way into law enforcement; it’s also technology from the military that’s increasingly finding its way into domestic law enforcement. Things like cellphone trackers, cell phone surveillance devices, sting ray devices which is something I’ve done a lot of work on, electronic card readers that can take money straight out of your gift card accounts or your cash accounts at your bank, facial recognition technology, drones – I mean the list just goes on and on. Anything that the government is using overseas, any kind of technology, we have a big risk of having that come home into domestic law enforcement.
Aaron Powell: Is there something new going on with this tech though because I mean law enforcement has always used technology and always tried to embrace new technology to keep up with the criminal element and keep an eye on evildoers.
Matthew Feeney: Well I think what is unique about the time were in now is the threat to privacy is of a particular concern, so while there are a lot of tools that are pushed forward by accountability and transparency advocates like body camera’s, you run the risk of these tools being used in a very frightening way without rules and procedures in place.
Adam Bates: And I think we have a problem with our jurisprudence and the framework for how we oversee, for how we hold law enforcement accountable. Our transparency rules, things like that, are lagging far behind the pace of the advancement in technology and I think that’s really where the problem is. Of course technology will keep up with the times and it should for law enforcement but the kind of legal regimes and our individual rights protections need to keep up also and sadly they’re not.
Trevor Burrus: So let’s start with one of the ones you mention, if we can just go through some of these technology by technology, you mentioned sting rays which as you talked about Adam you’ve done a lot of work on these but a lot of people don’t know about Stingrays. And when I’ve heard you lecture on this you tell a story about trials and how Stingrays are discovered being used by the government which I think is a good way of explaining what a Stingray is and how terrifying it actually is.
Adam Bates: Right so there was a case in Florida about three years ago where two young men decided they were going to rob, they were going to set up a drug deal and then they were going to rob the drug dealers. So when the drug dealer got there they had BB guns that looked like real hand guns, they robbed the drug dealer, they took the drugs, they took money, they took his cellphone and then they fled. A few weeks later the police managed to track them down and when the police caught them they had the cellphone, they had the drugs, they had the money – so this is what we would call a slam dunk kind of case for the prosecution.
Yet when they went to court a wary defense attorney couldn’t quite figure out how the police had managed to find her client and started asking the police, “How did you manage to track down our client just based on what the victim told you?” At that point the police started invoking national security concerns to say they weren’t at liberty to disclose the nature of their investigation. That tends to be a good way to get a judge’s eye brows raised and basically the police just refused to say how they managed to track this person down. It ended up with the prosecutor having to withdraw that evidence because the police simply refused to explain themselves and the armed robbers ended up getting a very sweet plea deal and going home that day rather than spending thirty years in prison.
So what a Stingray device actually is is it’s called a cell site simulator, so what it does is it mimics the signal of a cellphone tower and forces other cellphones in the area to connect to it. Once you’re connected to it the police can do things like track your location, they can get information off your phone, the can get your international mobile subscriber identity – your IMSI number – which identifies your phone as yours. It’s widely accepted that these devices can even get content such as intercept the actual content of your phone call, read your text messages although law enforcement has not been proven to be engaging in that behavior but this is a serious surveillance device. It has been used by the military intelligence agencies around the world and it’s being used now in domestic law enforcement often without warrants, sometimes even without court orders.
Aaron Powell: You said that it forces cell phones in the area to connect to it, so does this mean that the data it’s getting is indiscriminate?
Trevor Burrus: Indiscriminate between the cellphones or…?
Aaron Powell: In the sense that you can’t pick out, we want this person’s cell phone but instead you’re going to down out all of this data from the cellphones you’re forcing to connect.
Adam Bates: So there are two ways that it can be used. One is if the police already have your IMSI number or they get it from your cellphone carrier they can just plug that number in and they can drive around, this thing is about the size of a suitcase, and they can ping for that individual number. And so that how they location track, they can just drive around until they start getting hits on that individual number. The other way it’s used is the way I mentioned which is to just force every cellphone within the range to connect to it and at that point they typically will use visual surveillance if they know who they’re looking for, for instance. They will follow that person around and if that person moves from place to place the other numbers fall out until that’s the only number left and then they derive your IMSI number. You can put those two tactics together and then have a situation where the police do not know your IMSI number but they can find it and then they can track you after the fact. And also, obviously if they’re at a political rally or a protest or above Baltimore during the unrest, they may just be interested in getting all that data at once and these devices are capable of that.
Aaron Powell: So over the weekend we misplaced my wife’s phone in a restaurant and I was able to find it by doing the find my iPhone on mine and it tells us exactly where it is and I can erase it and I can emit a sound which is how we found it in the hands of two teenage girls who were trying to make off with it. But is this scarier than that?
Adam Bates: Well it’s scarier in the sense that this is being used by the government and insofar as you are voluntarily giving out the location of your phone to Apple in order to track it down it think that’s much different than having the government, without people’s knowledge, in many cases without any kind of judicial oversight, gathering up this information and then attempting to introduce it against you potentially in court. So yes I thinks there’s a much graver threat in that scenario than the one you mentioned.
Trevor Burrus: So this is basically becoming a cell tower, whereas your phone was normally connected to the approximate cell tower, it sucks them all into this thing. It’s like a mobile cell tower, it’s like the government your cell provider in a weird sense.
Adam Bates: Right and your phone is designed to connect, without any input on your part, is designed to connect to whatever tower is giving it the strongest signal at any point in time. The Stingray sends out a boosted signal, it basically muscles out the legitimate cellphone signals and forces the phones to connect to it. So this can all go on without your knowledge and you will never know.
Trevor Burrus: Our phones could be on Stingrays right now.
Adam Bates: They could be on Stingrays right now.
Trevor Burrus: They have ‘em hovering above Cato.
Adam Bates: They might, yes that is not impossible.
Trevor Burrus: That of course goes to the scary part, because you’ve alluded to it when you talked about the case, but the secrecy around these things is absolutely astounding. I mean you can’t…they don’t acknowledge how it works so they don’t even talk about…there’s only one person who builds it so they don’t even talk about…you can get into it because it’s really amazing.
Adam Bates: Yes so even as someone who’s generally cynical about government and technology and things like that the secrecy around this is shocking. So as I said these started out in military hands and the intelligence services, at some point the Harris Corporation – which is the company that manufactures these devices – decided they wanted to start marketing them to state and local law enforcement. Because they emit radio waves they’re regulated by the FCC, in the FCC’s licensing of Stingrays for use by state and local law enforcement they came up with a rule that says if you are state or local law enforcement and you want a Stingray you have to coordinate that use with the FBI. So the FBI took its authority and the constructed a non‐disclosure agreement, it’s a list of conditions that police agencies have to agree to in order to use a Stingray and one of these conditions is you basically have to give the FBI veto authority over virtually every aspect of a Stingray investigation. You are not to disclose that you have it, you’re not to disclose how it works, if you produce evidence from it you’re not to disclose even to judges or defense attorneys in court where that evidence came from and you have to give the FBI authority to shut down on prosecution. You have to throw cases if the FBI tells you to in order to protect the secrecy of this device and that’s what happened in the case I mentioned and it’s happened in several places around the country. And that level of secrecy is just galling I think.
Aaron Powell: Why the concern with secrecy about it though? I mean if they work, they work, or is there a possibility of eluding them if you know all the details?
Adam Bates: So the argument has been thus far that in the name of terrorism and in the name of fighting the war on drugs, if the bad guys figure out how this technology works and they understand the capabilities of law enforcement, they will be able to elude it. I think that’s not a very persuasive argument, anybody who’s watched The Wire knows that drug dealers and terrorist figured out that cellphones were liabilities a long time ago so it’s not an argument that rings very persuasive to me. But so far the argument for the secrecy has been if everyone knows how these work it will compromise their efficacy.
Trevor Burrus: So what can we do? I mean is there any successful legal challenge that has been brought? What can we do to try and protect ourselves because this seems to be something that they would love to use indiscriminately and get a lot of information on us and we would not even know?
Adam Bates: And they have been using the indiscriminately. A detective from Baltimore testified that they deployed their Stingrays 4 300 times in just a few years. So what can we do? Well this seems like a 4th amendment issue so there have been court challenges and in the last few months we have actually had some wins in places like Maryland, arguing that they need warrant before they deploy the Stingray. But one of the reasons it’s been so difficult is because of the secrecy, because non‐disclosure agreement, whenever defense attorneys started to get wind of what was going on here and started asking questions, they would just throw out the evidence or drop the case. The defendant takes his sweet heart plea deal or takes the dropped case so this never gets appealed up the chain, this is never being seen by appellate judges who would issue the kind of precedential rulings where we would get a good case law on this. So right now we’re at the very early stages of legitimate case law on Stingray use.
Trevor Burrus: So moving on to other items of technology, and since Adam brought up the fourth amendment that is sort of this entire “where does the fourth amendment apply in these new areas of peeking and collecting data and things like this?” Now Matthew you worked on body cameras which have privacy concerns, these are body camera for police. So can you just talk a little about what these are and how they work? A lot of people don’t understand how they work and what the benefits and costs are to them.
Matthew Feeney: Yes so body cameras are, as the name implies cameras that you attach to your body and officers can attach them either to their chest area, or helmets, lapels, if they are wearing other gear they can attach it to pockets or belts and things like that. And the argument for them is that they increase accountability and transparency in law enforcement. They’re comparatively very easy to use, they operate with single button usage, one of the more popular models made by Taser records in thirty second loops. So the camera will record thirty seconds and delete, record thirty seconds and delete, when you activate the camera the previous thirty seconds is saved and then a larger file can be created. And the argument is that if more and more officers where them there will be reduced incentive for them to use excessive force and it also means that it will be easier for investigators to investigate allegations of police misconduct. But it could also be used by police to dispel frivolous accusations of sexual assault or misconduct. And unsurprisingly these things are very, very popular; they are supported overwhelmingly by the vast majority of Americans regardless of racial or political demographic. And there is some evidence to suggest that after being introduced body cameras do prompt some kind of reduction in use of force and complaints that police although in classic social science issue of correlation and causation and in fact there was a recent study that found that body cameras were followed by an increase in assaults by police and excessive use of force.
But I think actually that that shouldn’t be the first priority on what the effect of these things are, I think that the main value is in investigations; that as Americas we deserve to know, after a controversial incident, what actually happened and body cameras undoubtedly help us in that endeavor.
Aaron Powell: So if they’re one button operated, record thirty seconds, delete – does that mean that they depend on the officer deciding to turn them on?
Matthew Feeney: Yes. And this has been a main point of contention, especially among police unions and other police advocates, which is that these body cameras do introduce an extra burden to the job. And this I think is an argument that has some weight to it but no enough that we should dismiss cameras all together. I have been fortunate enough to hold one of these cameras, undoubtedly there is a training period and people might make mistakes but police have adapted to changes in technology in the past; dash cameras, Tasers – all these things come with training. And in fact I think you can perhaps provide incentives for them to have good training and to really know what they’re doing by mandating strict punishment for offices that after training do forget to turn these things on when they should be on. But it is definitely a point that has been widely debated.
Aaron Powell: So the idea would be that they get out of their car after stopping someone and they turn it on, or when they stop someone on the street they turn it on.
Matthew Feeney: Yes. There have been proposals written, I think the ECLU has written that if an officer should have had the camera on but it happens to be off then the evidentiary burden switches. I am not quite sure what I think about that but it is evidence that people are thinking hard about this. You get into awkward questions because of course officers regularly talk to informants or under cover officers, they talk to children who have been sexually assaulted, they talk to domestic abuse victims and you could understand why police would want there to be clear policy about well can I record this if it’s that kind of sensitive data. And then the question that’s also important is well should the public have access to that footage? And even things that aren’t crimes, things like car accidents which officers are usually at the scene and you can see why there might be concern of there being an industry of people requesting body camera footage to make gruesome YouTube videos for example.
Trevor Burrus: What sort of policies are we seeing in place to deal with…around the country I imagine that different police departments are having different policies about turning them on and how they store the footage. Generally also, are police unions against body cameras or do they think that it will help police out too?
Matthew Feeney: I think you’re seeing a shift actually that officers are coming to understand that these are tools that can help them. And I have seen incidents of a police officer being accused of sexual assault when he had done nothing of the kind and it was easily disposed of as a frivolous complaint because the officer was wearing a body camera. And so I think you will gradually see shifts, now there are roughly 18 000 law enforcement agencies in this country, there are fifty states, the regulations governing is rather diverse. So for example, in South Carolina body camera footage cannot be requested by a journalist – just period. Then Washington D.C. has comparatively quite good policy on body cameras, Baltimore for example has a policy that bas facial recognition software. And the storage of this is in large part a fiscal issue because these are collecting massive amounts of data and storing all that data can be expensive, not to mention the redacting of the footage if it’s going to be released.
And so in large part I think fiscal reality will dictate policy. It’s unreasonable to impose for example on a police department with a small budget that they must keep all body camera footage for ten years for example; that is not an actual policy by hypothetically.
Aaron Powell: This seems like one of those areas where it would be hard for the regulations to keep up with the tech because the things that we’re concerned about like how easy these things are to use or how much onboard storage they have or whether you can store ten years’ worth of footage, the answer to those questions and the cost of answering yes to all those declines so quickly compared to whether we can update the regulations that I just see the regulations becoming way out of date really fast.
Matthew Feeney: Yes you raise an important point that the cost these things will decrease as technology improves, which is a good thing and we will be able to store more data for longer and it will be higher quality and the redaction of that will be a lot easier. And there’s also the other fiscal point which is that actually if it is true that body cameras reduce complaints against the police and the number of use of force incidents there will be less resources and money spend on paperwork and investigations and all these other kinds of things.
Trevor Burrus: Right now what are we seeing, in your opinion, as the best policies and practices related to body cameras?
Matthew Feeney: Yes so a shameless plug I did here at Cato advocating what I would consider to be the best practices for body cameras. So I think ideally the incidents that the public are concerned with – so these are arrests, detentions, use of force – these kinds of incidence I think, if caught on body camera, should be made available to the public. Although I do make an exception for body camera footage filmed in an area where you have an expectation of privacy so I don’t think for example, if a SWAT team busts into my home and they’re wearing body cameras that Adam should be able to request that footage. My living room could perhaps reveal my religious views, my political beliefs, perhaps my sexual orientation but I think that I and my attorney should be able to have access to that footage. So I think that balances the desire for increased accountability and transparency with privacy.
Trevor Burrus: And we’re just generally probably going to get used to this in the sense that it will be an expectation. I think as these get more and more used it will just be an expectation that the cops are filming you right now and people are being filmed by cops.
Matthew Feeney: And there are also concerns about people who are not the target for example, or the subject. So it’s not hard to imagine a situation where a fight breaks out at a restaurant for example, or a bar, and police are called. Now you don’t have a very strong expectation of privacy in a bar so police arrive and they arrest the guy who started the fight but the body camera footage which is released to the public show a well‐known businessman treating a woman who is not his wife to a drink. And he was not involved in the bar brawl at all and yet the body camera footage is showing to anyone on YouTube who is interested that he was behaving in an inappropriate manner. But I think that there is an interesting point to be made about how we even think about our expectations of privacy and what we can expect to be really private.
Aaron Powell: How is that situation different from what we are long used to which is the cops can take photographs or they can interview people at the scene or require people to testify in court or the evidence from all of those methods of gathering gets released? So is this fundamentally different from the other ‘we happen to see you at the bar’ and so now it’s know or ‘we happen to take pictures’ and now it’s known.
Matthew Feeney: So there’s no fundamental difference, without body cameras officers Smith would say, “I came to the bar and I arrested John Doe after a complaint from blah blah.” The only difference here of course, even if the officer is taking photos of the suspect, is that body cameras are just capturing way more data than we’re used to.
Trevor Burrus: Before we move on to drones, we’re talking about privacy and the with Adam we were talking about Stingrays which was also about privacy and the fourth amendment has been alluded to so maybe we can take a little segue to talk the fourth amendment as it relates to these kind of privacy issues themselves. The body cameras of course were accountability and things like this where Stingrays are getting into places that are private or most of us think that they’re private. How has the fourth amendment, even historically, dealt with these kind of changes that could invade the privacy of individuals.
Adam Bates: Well I would say that our jurisprudence over the past fifty years or so has taken our conception of privacy as a jurisprudential matter and kind of gone off track and left us in a very poor position to argue constitutionally for the kinds of policies that will protect our privacy from this kind of technology. So people may be familiar, they have heard it discussed here, this reasonable expectation of privacy is one of the standards that the Supreme Court uses. That if you are expressing yourself or just behaving in a location that is considered to not have a reasonable expectation of privacy in your behavior, it is not a fourth amendment search even for the government…
Trevor Burrus: What does that mean when you say it’s not a fourth amendment search?
Adam Bates: It doesn’t implicate your constitutional rights so the police are allowed to do this without getting a warrant, without establishing probable cause. A corollary of that is what is known as the third party doctrine which is very relevant to things like the Stingray device, which is any information that you voluntarily relay to a third party, you are essentially relinquishing your expectation of privacy in that information. When these rulings were handed down in the sixties and seventies there wasn’t such a big problem but now that almost everyone has a device in their pocket that is constantly beaming information to third parties, namely their cellphone carrier, this information is just floating around and police departments that have been asked to justify their use of Stingray devices have sighted the third party doctrine to say, “Look, you are voluntarily conveying the data that your cellphone sends out and therefore we don’t need a warrant to get it.”
Trevor Burrus: This is messed up when it comes to Stingrays because it’s like the government has made themselves the third party. In a weird way they make themselves the cellphone tower.
Adam Bates: They put themselves in the middle.
Trevor Burrus: Yes it’s interesting.
Aaron Powell: Does this just mean thought that we need to revise down our expectations of privacy? I mean the world is constantly changing, technology is constantly changing, we all are doing things voluntarily with our data that would have been unimaginable decades or centuries ago. And so what’s wrong with just saying, “Look, we’ve got this tech, it’s out there, you know it’s out there. Sting rays are being kept secret but you’re able to describe them in relative detail, this is just a changing world and it make take some time for our expectations to catch up but there is nothing wrong with that.”
Adam Bates: If you think that the reasonable expectation of privacy and the third party doctrine are the proper analytical framework for understanding what our rights are then yes I think that is correct. As the government does more of this, as more of our lives are open to public scrutiny and voluntarily conveyed to the internet, to the series of tubes, yes I think our expectation of privacy has diminished and will continue to diminish. I don’t think that answers necessarily the privacy interest question or the constitutional question, maybe we should be asking whether a reasonable expectation of privacy is the proper question to ask when we’re discussing whether the government should have access to this information to use it against you in court.
Matthew Feeney: I don’t have it in front of me but Justice Sotomayor concurrently wrote, I am paraphrasing here but she did write on this point saying, “I would ask, do people expect that all this data is being gathered and used?” And what you can find out about people is astonishing, it’s far more revealing than I think a lot of people realize. I mean we sitting here at Cato know about these tools and know this is how cellphones work and everything but I don’t know if most Americans actually do think that my shopping habits or whether I am cheating on my wife or not or what kind of food I like – if all of that is actually willingly exposed to the government and they should be able to amylase it at will.
Trevor Burrus: I am going to ask a clichéd question but I think I basically should for a reason, is it that big of a concern for people who are not criminals? I think most people don’t deal with the cops in their lives, they don’t run into them that much except for traffic violations, they don’t have a record, they’ve never spent time in jail and so they don’t have that much to worry about. So we’re trying to protect all these privacy rights but ultimately speaking if you’re not even getting into the police ambit, meaning you’re not having them raiding your house or things like this, then you’re not going to be seeing stuff so I am not terrible concerned, I am not really in the police ambit and I am not terribly concerned right now about Stingrays above my house, I am not terribly concerned about them finding things out. So this is the “if you’re not doing anything wrong then why do you care?” but is it more important to catch criminals than to protect this kind of privacy? Maybe people don’t value it as much as we think they do.
Matthew Feeney: Well you might not be doing something that is on the government’s radar now but you could be. I think at the moment out law enforcement and certainly our intelligence agencies are very heavily focused on Islamic terrorism and because I am not a Muslim I also, like Trevor, don’t spend much time thinking “am I under surveillance?” or anything like that. But I don’t know, a president in 16 years who avowedly hates libertarians and is not a fan of us and thinks that we are a threat to national security then I would begin to worry. It’s true you have nothing to fear unless you’re doing anything wrong but what the government considers wrong can change quickly and dramatically.
Adam Bates: I’ve spent years trying to get under government surveillance so I am even coming at it from a different perspective but I think you right that the average person on the street thinks that “I am not doing anything wrong”. I run into this all the time and I think people who work in criminal justice, especially about police searches and things like that, run into that attitude all the time but it’s always wrong. People don’t know what the law is, people don’t know whether they are doing something the government frowns upon and I will pull the Glen Greenwald trick which is to ask anyone who doesn’t really think they have anything to hide to just send me their email accounts and passwords and I’d give you my word I will not do anything with your account and passwords , I will just look through your email for a while. I think people, if you drilled down a little bit, people do care more about their privacy than I think they let on, just at that level “I am not doing anything wrong” attitude.
Aaron Powell: Well so I wouldn’t give you my email account but police officers are the good guys, the agents of the state, the same way that I tell my doctor things that I wouldn’t want to make public but that doesn’t mean that there’s something wrong with my doctor possessing that knowledge.
Matthew Feeney: Well I think the history of government surveillance should give you pause on this, the instinct is to think that law enforcement is here to protect us and they are the good guys and to a large extent that is true, but the last hundred years or so have provided countless pieces of evidence to the contrary. Listeners should check out our colleague Patrick Eddington’s timeline of government surveillance in this country; everyone from feminists, socialists, the ACLU, civil rights leaders – the number of people that have been put under surveillance in this country is by no means limited to Islamic terrorists.
Trevor Burrus: Well I think it’s quite terrifying too as Adam said that you probably have committed quite a number of felonies without knowing it. And so that being the case, if your life is an open book to the police and to prosecutors the only thing that’s protecting you is that they really just don’t want to take the time to prosecute. But if they decided they wanted to, pretty much everything could be there for them to do that successfully which is a pretty weak reed upon which to rest freedom. But I wanted to get back into the question with the technology as we get into drones, but before we get into drones, or as we get into drones, the question of how these new technologies challenge old fourth amendment doctrine. You brought up the third party thing but there is also, when it comes to drones, these technologies are moving faster than the fourth amendment doctrine.
But the point of the reasonable expectation of privacy element of the fourth amendment is because the reasonable expectation of privacy changes with the times so it tries to address the fourth amendment to different technologies that are going on so maybe it works just fine for that.
Matthew Feeney: I think I could discuss a few cases that show that not to be the case and while it is the case that the Supreme Court does catch up with technology, it is always playing catch up and technology always moves faster. And sometimes when it does eventually catch up its rulings are sometimes unsatisfactory. And this brings me back to the expectation of privacy test which I think is most important when we’re talking about drones which can be used for police surveillance, because the closet analogy we have to drones is airplanes really when it comes to the kind of tools the police might use to look for people and to bring this back to the expectation of privacy test there is a case that is relevant that is called California versus Ciraolo which was in the ’80s. Police officers received an anonymous tip that Dante Ciraolo was growing marijuana in his backyard and Dante Ciraolo actually had a six foot and ten foot fence around his property so his backyard couldn’t be observed from the public sidewalk.
So the police, without a warrant, took to the air in an airplane at a thousand feet, spotted marijuana is Ciraolo’s backyard and got an arrest. And Ciraolo sued saying this was a violation of his fourth amendment rights and the Supreme Court ruled saying “Actually no, you don’t have reasonable expectation of privacy to the contents of your backyard even if you have a ten foot fence around your backyard.” And in a few years later in another case called Florida v. Riley which is very similar, police again looking for marijuana took to a helicopter at 400 feet and observed marijuana in Riley’s greenhouse. And I like the Florida v. Riley case in particular because it includes a descent from Justice Brennan that includes an amazing, I think, piece of prescience.
And it’s worth keeping in mind that this was written in 1989 because in Riley the plurality said this was not a fourth amendment violation but Brennan wrote, “Imagine a helicopter capable of hovering just above an enclosed patio or courtyard without generating any noise, wind or dust at all and for good measure without posing any threat of injury. Suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses but also what books they were reading, who their dinner guests were. Suppose finally that the FAA regulations remained unchanged so that the police were undeniably where they had a right to be, would todays plurality continue to assert that the right of the people to secure their persons, houses and effects against unreasonable searches and seizures was not infringed by such surveillance?”
And these miraculous tools that Brennan is talking about are now not just available to law enforcement but to us for only a couple of hundred dollars. And drones are much cheaper than helicopters and airplanes and their much easier to use. And it won’t be a surprise to any of us that police continue to use them in the future but Riley and Thrawler do offer rather unsatisfying precedents at this time.
Aaron Powell: Isn’t this again just expectation? So drones get to be everywhere and so what that means is just grow it somewhere where it can’t be seen.
Matthew Feeney: Yes we might say that Riley and Thrawler were not wise marijuana growers and maybe they should have done it inside but I think what — I have spoken to Adam about this before off mic – that there’s something very troublesome and perhaps wrong about this reasonable expectation of privacy test because as technology improves the expectation of privacy seems to diminish. And the problem here fundamentally is that if the fourth amendment is supposed to protect, it’s actually mostly a property amendment, but if we’re supposed to find the privacy rights somewhere in the shelter of the fourth amendment it seems to just lose a lot of what it’s supposed to be for which is to protect this thing that we call privacy.
Aaron Powell: This is a little bit off topic but one of the things that’s struck me and is a recurring theme, so when you are say taking a course on the 4th amendment in law school and you’re reading all of these cases, there’s a lot of laws on the books and a lot of ways to break the law but the common theme in basically every case that seems to diminish our fourth amendment protection is drugs. So all the ones that we’ve mentioned today I think have been drug related and so is there something special about drugs that causes it to cause these rollbacks or to be the common theme in all of these cases?
Matthew Feeney: So I would suggest there is a giant smoking crater in our fourth amendment where the drug war landed and the war on terror is not far behind as far as the effects. But I think there is a determination among judges that because of the nature of drugs, of contraband, how easy they are to dispose of, how easy it is to engage in this illegal behavior outside the purview of law enforcement in the privacy of your own home, it would be very difficult to prosecute the war on drugs if police could not look inside your home, could not look inside your backyard. And I do think…
Trevor Burrus: Even like your bodily orifice.
Adam Bates: Or your body cavities. So I do think at some point perhaps subconsciously there was a decision made that the administrative ease of fighting the drug war and preventing the destruction of evidence – which is how we get to things like no knock warrants and swat raids – that prosecuting the drug war was more important than maintaining the protection of our fourth amendment values. So yes I think the drug war absolutely has twisted our jurisprudence in a very nasty way for privacy rights.
Matthew Feeney: I agree but I want to offer some hope in this conversation because while I think the conversation so far has really highlighted some of the problems with the expectation of privacy test, there’s nothing stopping states from going above and beyond the floor set by the Supreme Court. And actually Florida law explicitly defines expectation of privacy to take into account aerial surveillance and says you have an expectation of privacy in the contents of your property that are observable from ground level basically and there’s I think a bill in New Hampshire that does something similar. And while I was doing work on drones Adam reminded me that Justice Alito in a case actually says explicitly, “Don’t rely on this blunt instrument of the fourth amendment to fix this technology meets privacy problem of how legislatures can deal with this.”
Trevor Burrus: The drug war point is interesting because it is, I mean as we imagine the future here there’s a couple things that are even more terrifying, things I’m sure we can’t even imagine right now but these drones can be the size of a little bug, they can be silent so I guess under current jurisprudence flying it into a house would probably violate basic questions, flying it around your widows and things like that. I mean it gets kind of terrifying but the interesting question is if you weren’t fighting a drug war what would you possibly be using such a drone for? I mean you can imagine only a few pretty highly dangerous situations that then the drone would be used to find things like weapons and things. So yes without the drug war you could imagine the cops saying, “Yes we’ve got this thing but we don’t really know what to do with it, we look for stolen goods and guns and that’s about it but not any contraband of drugs.” So what kind of drone technology is out there? What kind of stuff is coming up? And, what other kinds of concerns are, even aside because we’ve talked about facial recognition and drones and things like this, even off mic we’ve talked about this so it seems that things could get pretty scary pretty quickly.
Matthew Feeney: Well some of the stuff that already exists is rather frightening so you’ve just mentioned very small drones and those do exist and I’ve seen footage from labs of a couple dozen drones being programmed to fly through windows by themselves and all these things with surveillance devices are rather frightening to comprehend. We also are finding that the military, as Adam spoke earlier, the military has developed technology that could perhaps in the future be used for domestic law enforcement. There is a piece of equipment called Argus which is named after the mythical Greek one hundred eyed god which is capable of putting medium sized city basically under constant surveillance and can from a height of tens of thousands of feet can zoom into less than a foot of detail. It automatically tracks moving objects and you can, I suppose with the expectation of privacy jurisprudence, anyone who is outside can’t reasonably expect that what they’re doing is private.
I am not aware of that kind of surveillance being used by domestic law enforcement but it’s very easy for listeners to find footage of an engineer showing off this piece of technology using guanaco, Virginia as an example. So it’s certainly been used at least once and I think that kind of technology is going to improve; that you have areas the size of cities that can be surveilled in very high detail with only one piece of equipment. And miniature drones, depending on how small they can get, but it’s not inconceivable that in the not too distant future, maybe ten years / twenty years, that you’ll have drones the size of insects that will be able to fly around with a whole range of surveillance equipment. So we’ve spoken briefly about facial recognition software and I like talking to lawyers here at Cato about that because it’s a question of whether you have a reasonable expectation of privacy to the details of your face – it’s a rather interesting question but there’s also vein recognition, gait recognition – all these kinds of surveillance tools.
Aaron Powell: Gait, you mean how you walk?
Matthew Feeney: How you walk, so everyone has a unique gait so if you have the gait data of someone you could potentially program that into a camera that into a camera that is looking out for someone with that unique gait.
Aaron Powell: So one of the heartening things that we’ve seen specifically in response to the Snowden disclosures is the technology industry fighting back and doing what it can to close the opportunities for the government to surveille. So making encryption standard and locking things down more; how much can we I guess fight an arms race with the government on a lot of this stuff simply through improving tech? Like these Stingrays, could those be defeated by Apple releasing the next iPhone with a different cell technology that is not susceptible to them?
Adam Bates: So my understanding is if they’re using the current cellphone cell network infrastructure that they’re susceptible to these devices. I don’t know enough about the tech to tell you whether it would be possible to design around it. I think one of the problems of the problems there is, and it’s kind of the irony about this whole idea especially about the secrecy, is in a situation like that the people who take those measures to protect themselves are the people like us – the civil libertarians – the criminals, who have a vested interest in frustrating this surveillance, but the people who don’t care or don’t know how or don’t feel like making an effort, those are the people most at risk, those are the people who are innocent and so those are the people who still, even if there is this tech arms race to frustrate the surveillance state, the people who are most at risk and most likely to be harmed aren’t likely to really benefit from that I think.
So when it comes to things like using browser anonymizers like the Tor network and things, this is not something that the average person in America does. Despite the fact that it’s relatively easy to do, it’s just not – like what Trevor mentioned earlier about most people don’t think they have anything to worry about and they don’t fully understand the implications of what is going on. So even if there were these measures that we could use it’s not clear that the average American would be interested in using them.
Aaron Powell: One of the responses to especially us libertarians when we are griping about the governments data collection and privacy invasions and all of these ways is the “Why aren’t you concerned with corporate America?” comeback. So we say we don’t want all this footage being gathered up by police departments because there are huge privacy concerns there and we don’t want them sucking down all the information about our cellphones or being able to locate us.
Trevor Burrus: Or live stream my life.
Aaron Powell: Yes we don’t have any problem with Facebook which is gathering extraordinary amounts of highly identifiable data on us. And so one the one hand should we be concerned about that kind of data collection too – which is becoming more pervasive? And if we are should we, as we push for greater four greater fourth amendment protections, should we also be pushing for greater protections/regulations of our privacy data for private entities?
Matthew Feeney: Well I think you raise an interesting concern because while we’ve spoken about drones in the law enforcement context it’s not inconceivable that there will one day be delivery drones and what if Amazon drones have all this stuff on it? Maybe they will have cameras, maybe won’t.
Aaron Powell: Or Google Earth.
Matthew Feeney: Right but whenever people say this the first thought that occurs to me is that Facebook can’t arrest me and the stuff I disclose is for a large part voluntary although privacy advocates will talk about logging out of Facebook or Twitter and things as often as you can. And I think you might see a shift in what people consider private without there being too much worry, so people put up too many photos of their vacation and it’s widely available to everyone. People like me, I am rather selective when it comes to Facebook, then you’ve got Adam here who puts everything on Facebook onto the public, but ultimately though I think the intention is different. I am reminded of that story about a father getting furious at Target because his teenage daughter has been sent advertisements for pregnancy tests or young mother products and it turns out that target had figured out that she was probably pregnant based on buying patterns. That stuff might strike people as spooky but I think ultimately Target and Facebook are not as threatening as law enforcement.
Adam Bates: And to bolster that point I’ll use the doctor example that you used earlier Aaron, I share information with my doctor but there’s an understanding and a trust that my doctor is trying to help me with that information. And we can go back and forth I suppose about whether things like marketing algorithms and the collection of data from commercial interest is meant to help us or help us get things we want, but it’s very clear historically that when the government is looking through your emails or it’s looking through your mail or it’s listening to your phone calls it is never for your benefit.
Aaron Powell: It’s to protect us from terrorism.
Adam Bates: Not when they are listening to my phone calls they’re not protecting me from terrorism.
Trevor Burrus: Or that they knew that beforehand, if they knew that you weren’t a terrorist then that would be easy yes.
Adam Bates: So to agree with Matthew about the intent, the effort of the government to surveil everything I do and say and communicate to people is to me a fundamentally antagonistic interaction and I agree with Matthew; Mark Zuckerberg doesn’t have an army, he doesn’t have a prisons he can throw me in, the data that he’s collecting is not going to be used against me to put me away or to infringe on my liberty.
Aaron Powell: What about the third party doctrine that you mentioned? Is it a significant concern that Facebook has all this data if the government can just ask for it?
Adam Bates: Right. So if you put this information out there publicly, then yes then that’s where the third party doctrine comes in to say, “Well look you put this out there.” Even there I do think there is a concern and I think the doctrine could use some tuning, we have for instance automated license plate readers that can collect and process thousands of license plates in a very short time as the police car is driving down the street. People may have seen these mounted on the police cars’ trunks facing diagonally out but everyone would agree that you don’t have a reasonable expectation of privacy on your license plate, that’s the whole point of it. But still a cop standing in a street cannot possibly process that information or do anything with it. Meanwhile, if they take these to a political rally or a church or a mosque and they scan they scan the license plate of everyone there and they record it and they retain this data that seems like it’s a fundamentally different situation despite the fact that you don’t have a reasonable expectation of privacy.
So I think the mass aggregation of data, even publicly released data, is still something we should be concerned about and guard against.
Trevor Burrus: When these technologies, and other ones I guess that we can’t even name; micro drones, face recognition, nano drones – whatever – should we expect them on some level to be abused?
Matthew Feeney: Well there’s been law enforcement abuse of other technologies so I don’t see why there necessarily would be an exception. But this is why at think tanks like this we propose policies and procedures that should be in place. I think absent regulation tools like body cameras are a tool for totalitarianism and are quite frightening but with the right policies in place they are a great tool for increasing accountability in law enforcement and figuring out what’s really going on, it’s great for researches and activists and things like that. But it’s silly to talk about technology as I guess morally neutral but these devices are made good or bad by the rules that govern them not the intrinsic in and of itself.
Adam Bates: And yes it would probably be naïve to think that we would stack up all the Stingrays and thrown them in the ocean, I mean that’s realistic. Of course law enforcement technology is going to advance but there’s a great difference between advanced technology where there is accountability, where there’s transparency, where everybody knows what’s going on and what you’re capable of and enforcement technology that’s being used in abject secrecy where they’re being dishonest with judges, with defense attorneys, with the public. We have separated powers, we have checks and balances not because police or the governments are bad people but because they’re people and we need these checks to hold people accountable. And where police are frustrating these checks to do things in secret or outside the oversight of the public or legislators that’s a problem and we should expect abuse because that’s what happens in secret.
Matthew Feeney: I do want to briefly add though that there are reasons to be thankful that this technology is around, it’s not hard to imagine at all that drones would be great with a missing child in a national park or very good at coordinating fire fighting efforts potentially, or that Stingrays might be useful to help find kidnapped children (if the child has a phone obviously). So while here I am sitting at Cato and I am thinking about potential abuses I think the potential benefits should also not be ignored.
Trevor Burrus: Thanks for listening. If you enjoy Free Thoughts please take a moment to rate us on iTunes. Free Thoughts is produced by Mark McDaniel and Evan Banks. To learn more about libertarianism visit us on the web at www.libertarianism.org.