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July 8, 2012

Recent Olympics security headlines (and food for police practices thought)

As we launch into a week of discussion about police practices, here are links to some recent stories about security issues surrounding the upcoming Olympics:

UPDATE:  This big front-page story from 9 July 2012 New York Times provides some more food for thought concerning police practices (and "consent-based" searching).  The piece is headlined "More Demands on Cell Carriers in Surveillance," and it begins this way:

In the first public accounting of its kind, cellphone carriers reported that they responded to a startling 1.3 million demands for subscriber information last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.

The cellphone carriers’ reports, which come in response to a Congressional inquiry, document an explosion in cellphone surveillance in the last five years, with the companies turning over records thousands of times a day in response to police emergencies, court orders, law enforcement subpoenas and other requests.

The reports also reveal a sometimes uneasy partnership with law enforcement agencies, with the carriers frequently rejecting demands that they considered legally questionable or unjustified. At least one carrier even referred some inappropriate requests to the F.B.I.

The information represents the first time data have been collected nationally on the frequency of cell surveillance by law enforcement.  The volume of the requests reported by the carriers — which most likely involve several million subscribers — surprised even some officials who have closely followed the growth of cell surveillance.

“I never expected it to be this massive,” said Representative Edward J. Markey, a Massachusetts Democrat who requested the reports from nine carriers, including AT&T, Sprint, T-Mobile and Verizon, in response to an article in April in The New York Times on law enforcement’s expanded use of cell tracking.  Mr. Markey, who is the co-chairman of the Bipartisan Congressional Privacy Caucus, made the carriers’ responses available to The Times.

While the cell companies did not break down the types of law enforcement agencies collecting the data, they made clear that the widened cell surveillance cut across all levels of government — from run-of-the-mill street crimes handled by local police departments to financial crimes and intelligence investigations at the state and federal levels.

July 8, 2012 in Course materials and schedule, Current Affairs | Permalink

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Just as a heads up, this relates less to the Olympics and more to things we discussed in class today.

As for the issue of if email and text messages, I think that it is useful to first look at the issue of regular mail. I'm not sure if the government is allowed to open my mail or not but I, a reasonable? person, do expect that I have privacy when I send a letter to someone. So, if the government decided to open my mail, make a copy of it, read it to try to detect national security issues or any other criminal discussion or scan it to look for "key" words, I would think that this would infringe on my rights. Relating this to emails and text messages, it's just the same issue. If I send a text message to someone, I expect that my phone company will send it to the party that I ask them to. Not open it, make a copy of it, and send it to the government. Same thing goes for emails. Just because it's easier to look at emails and texts on a computer and have a program search the documents for "key" words instead of having to do it by hand does not mean that the privacy issues have changed; the only change is the mode of communication. And sure, if the government does look into my mail, email, and texting, they won't find anything that will show that I'm a threat to national security. So some people may argue that no harm has been done. I respectfully disagree. A lot of harm has been done because my privacy rights were still violated and there was no reason to invade my privacy, shown by the fact that the search was fruitless. Out of the 1.3 million demands for cell phone records, how many resulted in preventing terrorism or any other crime for that matter? Besides unduly limiting an individual's rights, these searches also seem to be inaccurate and ineffective (and perhaps expensive). I really do think that this is a slippery slope issue into making private conversations impossible to have. I can't write a letter, send a text, or send an email without the possibility that it could be obtained by the government. I can't call someone without the possibility that there's a wiretape on my phone. Video surveillance seems to be ever increasing (and used a lot in England I have noticed) so if I really want a private conversation, I have to ask someone to meet me in an open field and whisper to them? And even then, I have to somehow let this person know when and where to meet without using my phone, my computer, or the mail.
I don't expect absolute privacy in every aspect of my life or my communications. That would not be reasonable. But I do think it is reasonable to expect to have the ability to have entirely private conversations. And with any slippery slope argument, the question is really, where do we draw the line?


On another issue that was raised briefly in class:
While I'm against drinking and driving, I have always wondered how DUI checkpoints are legal since the police have no reason to stop the cars. I asked Professor Herman, my criminal law professor, one day and he didn't have much time to explain it to me, but the gist of what he said was that while it's constitutionality is questionable, they allow it for public policy reasons. I also asked a criminal defense attorney and he told me that oftentimes a lot of the DUI charges that come from DUI checkpoints don't hold up well in court since there's no evidence as to impaired driving (since the police didn't see them serve etc.)

Here's a link to a video that I saw that made me really question my ability to refuse DUI checkpoints:
http://www.youtube.com/watch?v=ILqc0DMh84k
I would love to hear thoughts about this!

Posted by: Katie | Jul 9, 2012 3:13:24 PM

Concerning the New York Times story, I agree with the concerns that Katie shares above. I was going to comment that the ease of checking electronic communications for key words should not, in my opinion, change the standard of privacy, but Katie beat me to the punch.

However, I am also concerned with the "emergency" situations that the article talks about:

"Under federal law, the carriers said they generally required a search warrant, a court order or a formal subpoena to release information about a subscriber. But in cases that law enforcement officials deem an emergency, a less formal request is often enough."

I would like to know what constitutes an "emergency" and the procedures that go along with "less formal request." More specifically, I'm concerned about the possibility that a local police agency would request subscriber information without a search warrant/subpoena, claiming an "emergency," and the cell phone carrier giving the information to the agency without any background checks on the validity of the agency's claims. After all, does a cell phone carrier really want to spend the time and money to check out all these "emergency" requests?

Further, concerning our discussion in class about what kind of useful, concrete information is actually obtained by the police agency through these requests, I found the following part of the article interesting:

"As cell surveillance increased, warrants for wiretapping by federal and local officials — eavesdropping on conversations — declined 14 percent last year to 2,732, according to a recent report from the Administrative Office of the United States Courts."

If (and a very cautious "if") there is a causal connection between the decrease in wiretapping and the increase in cell surveillance, it would lead me to believe that law enforcement agencies are getting just as valuable of information from these cell surveillance requests as they would if they conducted wiretapping. However, I point this out with a grain of salt, because as we all know, correlation does not equal causation. Just thought it was an interesting fact.

Posted by: Kyle | Jul 10, 2012 7:01:59 AM

I really found today's discussion of privacy issues interesting and it made me think back to my first week of law school. My brother, who is finishing up his PhD in computer science, called me and asked me about what I thought the outcome of a case would be (apparently he thought that one week of law school qualified me to predict what a court would decide). The case was about encryption of computer files and if, when the police are unable to break the encryption on a seized computer, a defendant must tell the court how to decrypt the files. We talked about it and decided that we thought the defendant would not have to self-incriminate themselves by decrypting the files. I had pretty much forgotten about the issue until we discussed privacy today.

I looked it up on google really quick and this is a link that talks about two cases that came to different results (granted, the courts did find a way to distinguish the two cases). Here is the link:

http://www.forbes.com/sites/andygreenberg/2012/02/24/two-cases-lessons-if-cops-dont-know-what-you-encrypted-they-cant-make-you-decrypt-it/

I don't encrypt any of my files but I still found the distinction in this case to be interesting. I did like the reasoning that surrounded the issue of wether encryption itself means that someone is hiding something illegal. The article states, "Perhaps the most interesting line in the ruling deals with the question of whether the mere presence of encryption means that Doe must have had something specific he was trying to hide. The court rules it doesn’t. “We are not persuaded by the suggestion that simply because the [hard drives] were encrypted necessarily means that Doe was trying to hide something,” it reads. “Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.”"

I would love to hear people's thoughts on these cases as well!


As for the DUI conversation today, I found this article from 2009:

http://www.time.com/time/business/article/0,8599,1907493,00.html

While I think that sanctions solely for offenders are more appropriate than requiring all citizens to be subjected to an additional requirement before driving, I do see why drunk driving should be such a concern. I had heard in one of my courses that the average person drives drunk over 300 times before being caught (either pulled over or involved in an accident where the police come). I found some more statistics at http://www.popcenter.org/problems/drunk_driving/ that stated it is between 80-2000 times before someone is caught (wider range, but I think that they both show that driving drunk is habitual for certain individuals). But the statistics also show that first-time offenders are a problem as well.

I guess my dilemma is that while I personally don't mind having to take a few seconds to blow into a breathalyzer before driving, I try to be a little cautious by thinking about the consequences of what that would mean for the future. I just fear that this may set a precedent that would later require me to do a whole lot more before driving, regardless of whether I would actually offender or not, and that this may be a little too forward-looking into crimes that people haven't yet committed. I guess I'm still undecided on exactly what I think about the possibility of all cars being fitted with a breathalyzer, but I definitely think that the idea works well for previous offenders.

Posted by: Katie | Jul 10, 2012 3:56:23 PM

This post is in response to Kyle's question yesterday regarding what constitutes "emergency" situations allowing law enforcement to retrieve cell phone data without the full legal requirements. Quickly, though, I would just like to point out that the article we are all responding to is from the "New York Times" and, just as most sources of information, this one has been known to have a particular slant, and its interpretation of data should not necessarily be taken as is.

Here is an example of an "emergency situation" requiring emergency cell phone data:

A law enforcement agency ("LEA") has been investigating a local street gang for several months. The investigation has led the LEA, in conjunction with the United States Attorney's Office (USAO), to identify 22 members of the gang. The investigation links the gang members to several murders, firearms trafficking, drug trafficking, car thefts, and many other crimes. They are considered to be armed an dangerous, and frequently discuss murdering police officers if officers attempt to arrest them (information obtained during a wiretap). After a long investigation, the LEA and USAO decide on a date to conduct a "take-down," whereby all 22 members will be arrested simultaneously by a task-force consisting of many LEAs from all over the state (note: to arrest 22 people at 22 different locations at the same time requires significant resources and planning). The take-down is scheduled for 6am tomorrow morning. At 7pm tonight, the LEA learns through a reliable source that the take-down may have been compromised, and the gang members may have knowledge of the operation.

Cell phone data in this situation can be used in several important ways. For example, it can tell the LEA whether the gang members have been calling each other in an unusual pattern the night before the arrests, indicating that they know about the operation. The data can also be used to determine the source of the gang members' information (eg: "the snitch" or "the rat"), among other things.

Obtaining a warrant or court order at 7pm is difficult in and of itself. But obtaining cell phone data from the the cell phone companies with a subpoena, warrant, court order, etc... can be extremely time consuming as well. It can take as few as 24 hours, or as long as a month or more depending on the phone carrier. One of the main reasons the take-down is scheduled for 6am is to surprise the targets and reduce their ability to resist arrest, thereby reducing the risk of any casualties. If the LEA is not able to obtain the data tonight, before tomorrow's arrest, officer safety will be in serious jeopardy. Therefore, the LEA has an "emergency situation," and it can obtain cell data without the full legal requirements.

I realize this is only one example of an "emergency situation," but it is my understanding (although I do not have statistical data to show this) that one of the most frequent uses of "emergency situations" is to protect officers and their safety. When they are dealing with "bad guys" every day, I believe their safety to be of utmost importance.

Furthermore, LEAs do not simply just conduct a wiretap at will. During a typical investigation, wiretaps are only used when traditional forms of investigating are unsuccessful (this can occur for many reasons, but in the gang/drug world, it is because the gang forms such a tight community that any outsiders are quickly recognized and kicked out, including police) because, as we know, wire-tapping is so intrusive into one's privacy. Thus, while subscriber information can provide the LEA with important information, a wiretap will almost always yield more valuable information.

Posted by: Alex | Jul 10, 2012 5:09:27 PM

And obviously my example above is a more detailed example, but the obvious "emergency situation" includes kidnappings, bomb threats, threats of people flying planes into buildings...and the list could go on and on.

Posted by: Alex | Jul 10, 2012 6:04:20 PM

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