Week 7 discussion: law enforcement surveillance

I loved Freddy’s suggestion about doing public records requests as a way of tracking surveillance tech acquisition and usage (and also there are many other uses for public records data). Here are some links that make it easy:

MuckRock: https://www.muckrock.com/ (they’re based in Massachusetts and I know some of them if you want an intro @clobdell or anyone else)

Here’s Lucy Parsons Labs, Freddy’s organization: https://www.lucyparsonslabs.com/

I can’t find the Committee to Protect Journalists resource Freddy mentioned. It might be that it’s actually a different but similarly aligned organization, like the Freedom of the Press Foundation. I’ll look into it some more.

Let’s talk about the readings and what you learned from the lecture. Does anyone have anything to share about how this equipment is showing up in your communities? I know that for example Baltimore and Oakland are two places where a lot of the same things are happening as in Chicago.

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I loved Freddy’s idea of doing a workshop around public records requests. I am absolutely going to try to find a way to do it this semester–maybe in my friend’s legal history class.

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Yes! I considered doing this before but never followed through. Now I am motivated.

“abuse is guaranteed”

That’s not my city though. Quick internet search reveals we’ve had license plate scanners since 2012: http://www.wsmv.com/story/18170026/local-police-using-high-tech-license-plate-scanners
and we just now getting body cameras:
https://www.newschannel5.com/news/metro-nashville-police-department-moving-forward-with-body-camera-program

“Asset Forfeiture” has been be known issue here for a long time.
https://reason.com/archives/2010/01/26/the-forfeiture-racket (not an endorsement of Reason Magazine)

There outta be a law or two, or three:

http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB0644

http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB1877

http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB1987

I appreciated Franklin’s comments about sanctuary cities and how it’s important to decide what actions you can take (even though Federal law over rides local.)

As you may know, Oakland’s mayor made a strong statement back in February. Here are a few articles about it.

Relevant to this week’s info: improper stingray use in CA

Baltimore has a whole bunch of surveillance and general law enforcement overreach/abuse issues on top of what @librarianbryan posted. I’ve included some info about it before so won’t repost links, but this includes CCTV cameras around the city, social media monitoring, and drones. According to court testimony the city also had, between 2007 and 2016, used stingray tech 4,300 times. And this includes in at least one instance using it to find a stolen cellphone (!), not something that might - to my mind at least - possibly justify its use, like murder or sex trafficking.

All of this is further complicated by the city police department’s established pattern of civil rights violations.

I’ve just finished the readings for Week 7 (except the WaPo articles, I don’t have access) and I feel like I’m left with more questions than answers.
Why does the IRS have stingrays? What could they possibly be using them for? Even if it were to target money-laundering operations, the surveillance side of that kind of thing seems like something another agency would do, not the IRS. Very weird. I realize there probably isn’t an answer out there to this because of the secrecy around these things.
Also, we read a lot about how these technologies can be used to unfairly target certain groups of people and collect information about them (like the plate reader being used to read every car parked at a mosque), and I definitely think it is gross and terrible, but I also wonder why. What is law enforcement doing with this information? Just adding it to some list somewhere? Telling their system to flag these tags every time they’re seen elsewhere? Was this in the reading and I missed it?

Oh, whoops, I think I collected those links before they were paywalled. I don’t have a subscription either. So folks who didn’t get to read those, don’t worry about it!

I think it gets back to some of the points we’ve discussed so far: the budgets for obtaining surveillance equipment are pretty vast, and agencies can’t resist; mission creep is very real; and we live in a political climate where our rights are increasingly discarded. The IRS might think that it has some “national security” reasons to use a Stingray, and “national security” basically ends up meaning “we can do whatever we want with this and we don’t have to tell you about it” (I meant to ask Jessie on today’s call about how using the “national security” provision to do surveillance gives government agencies a really wide berth to violate our privacy rights, but we ran out of time).

It’s hard to know exactly, because they are very secretive about how data collected via mass surveillance/for “national security” purposes gets used. But through FOIA requests and the work of the ACLU, we have seen that at least some of these surveillance powers often get used in routine drug investigations (Freddy talked about this some). Some of this might be parallel construction, but again it’s hard to know for sure when there is so much secrecy. There have been a few cases where the FBI or local police have thrown out a case because they don’t want to reveal their “sources and methods”, but this would only come up if there was a trial, and considering how often plea bargains are coerced (especially in drug cases), this could be happening at a grand scale without law enforcement ever having to reveal how they’ve done their investigations.

But even without knowing exactly how law enforcement is using this data, the very existence of surveillance at this scale has a chilling effect on free speech. And since law enforcement surveillance is used more frequently against marginalized people (like your example of Muslims), this means the effective loss of free speech for these people. Jessie connected the 1st and 4th amendments today in her talk, and I think that connection is so important. Without privacy, you cannot effectively have free speech because if you fear that you’re being watched, you won’t express yourself fully.

Oh, I totally agree that even the collection of this information is horrible and chilling. The secrecy around the vast storehouses of data law enforcement and other agencies have collected/are collecting is what is terrifying to me. They must have some agenda, otherwise why even bother. You make a good point about the plea deals. I hadn’t considered that a lot of it is being kept out of courts and public eye due to these deals. Thanks for the insight.

yeah, it’s one of the many connections between the privacy problem and other issues around social justice. if we had fairer courts, there would be fewer uses for all of this unlawfully collected data.

Misc. things that stuck out for me in week 7:

  • Federal priorities taking precedence over local law enforcement - Franklin talked about ICE intercepting people who are on the way to local hearings to arrest them for immigration violations, and I found this super interesting locally (from some local reading I did about Baltimore): “…The nondisclosure agreement [between the FBI and Baltimore Police Department regarding stingray use], presented for the first time in court Wednesday, explicitly instructs prosecutors to drop cases if pressed on the technology, and tells them to contact the FBI if legislators or judges are asking questions.” And in practice, that means: “In one case last fall, a city detective said a nondisclosure agreement with federal authorities prevented him from answering questions about the device. The judge threatened to hold him in contempt if he didn’t provide information, and prosecutors withdrew the evidence.”

  • How little recourse people have when their rights are violated by ICE - not sure what else to say about this other than how obviously awful and ripe for abuse this is.

  • The idea that judges and lawyers don’t know enough about the relevant tech for proper oversight, especially since (as @AllyM and @alison discuss) so much of its use is so secretive - This is two-pronged and so complicated! The tech is changing quickly enough so that it’s not really reasonable to expect your average lawyer or judge to keep up with it. And then there’s the secretive ways in which it is used: it’s a case of unknowns unknowns, where lawyers and judges (and advocates/researchers, for that matter) can’t even know what questions to ask/abuses to look for even with the tech knowledge they do have. From the article referenced above (emphasis mine):

Baltimore police obtain court orders under the state’s “pen register” statute… those orders also require a lower standard of proof than a search warrant, and judges are not aware of what they are authorizing.
“They’re basically duping these judges into signing authorizations to use stingrays,” Insley [a defense attorney] said.

It’s just incredible how commonplace this is. We are supposed to have the right to a fair trial, which includes the right to know the evidence presented against us. But that’s just not how our courts operate at all. Police and prosecutors get away with Stingray usage in spite of these NDAs for two reasons, both related to the dysfunction of our courts: one, most of these cases don’t go to trial, instead ending in plea bargains, so they are not compelled to release the methods they retrieved evidence; and two, as you point out, many lawyers and judges don’t know enough about the tech to even ask the right questions. Franklin comes up against this all the time. This is one illustration of why it’s so important for cases – ALL cases – to go to trial. In a trial, the state has a harder time to hide behind its own secrecy.

It’s another reason why public education – the kind we do in libraries – is so extremely vital to a functioning democracy. Maybe we can’t teach all the judges and lawyers about the technology. But we can educate our communities about how they’re used. And those community members end up sitting on juries. In criminal trials, jury instructions must contain legal definitions of relevant terms, for example “possession”, “intent”, and son on. But with other non-legal words, jurors are directed to “their own experience” about what something means, so the better informed people are, the better the results tend to be.

Imagine that I’m on a jury, and I know a little about Stingrays and the use of NDAs. And there is a police officer testifying in this case, talking about all this evidence he obtained from a mobile device, but not talking about how he got it. Well, you as the juror are free to consider the credibility of the testimony, and if that officer doesn’t seem to be disclosing his methods based on what you know about Stingray use locally, you might not find his testimony credible.

Totally. My feeling is that if the tech is so complex that it can’t reasonably be understood enough to ensure fair outcomes in court proceedings, then it definitely should not be used. That’s something else we can publicly advocate for as we advocate for transparency and accountability.

One other thing, going back over my notes: the use of DACA info as “just a big ol’ honeypot” (to quote my notes… guessing that’s not quite how it was stated in the lecture). I have nothing to add; it is just heartbreaking.

Ok, a couple of things. It’s a reminder of how we need to push for government policies to at least try to consider unintended consequences, and also that policies won’t just be used by whatever possibly friendlier administration puts them in to place - we need to consider that they/their data and provisions could be used in bad faith but still legally by future, more openly antagonistic administrations.

Universities can also receive military surplus equipment through the same 1033 program police departments use. Schools have acquired body armor, grenade launchers, assault rifles (University of Maryland has 50 M-16s) and vehicles as well as more mundane items like furniture and bandages.

I will never stop being furious about how badly DACA recipients were screwed over.

In earlier LFP days, when I would talk about the surveillance state that Obama created, there were often a lot of library folks who didn’t think any of it could be so bad if it came from him. So I’d say, well, maybe you’re okay with Obama having these expanded powers, but what about a President Trump? And everyone would make horrified faces and the point was made. A simpler time. And so you are totally right to make this point.

whyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyyy

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!!! did you use him as an example before he was running?! That would be… impressive in a terrible way. It reminds me of when during the primaries I happened to be reading Parable of the Sower - the awful, racist, corporatist, demagogue president of the future USA’s slogan is “Make America Great Again”.

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We should add that to this article: https://en.wikipedia.org/wiki/Make_America_Great_Again
RIP Octavia Butler

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It was right when he started making it clear that he had political ambitions. And yeah, Octavia Butler was a prophet.

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