55981 (Author at Cato Institute) https://www.cato.org/rss/people/55981 en Countering Violent Extremism: The Trump Era - Panel 2 https://www.cato.org/multimedia/events/countering-violent-extremism-trump-era-panel-ii Sue Udry, Muqtedar Khan, Ph.D., Ayaan Dahir, Adam Bates <p>Countering Violent Extremism (CVE) is a U.S. government program that provides resources to targeted communities, predominantly American Muslims, ostensibly to root out extremism before it results in violence. The program involves law enforcement agencies that partner with community leaders such as teachers, religious leaders, and health professionals to identify allegedly at-risk community members and steer them away from violence.</p> <p>The program is controversial for a variety of reasons. Is the government’s theory of radicalization sound? Is the Muslim community unfairly singled out? Are targeted communities compromising their rights by assisting the government, or is this a productive partnership? Has the election of Donald Trump changed the CVE discussion? Join us for a timely and important debate.</p> Wed, 04 Oct 2017 13:21:00 -0400 Sue Udry, Muqtedar Khan, Ph.D., Ayaan Dahir, Adam Bates https://www.cato.org/multimedia/events/countering-violent-extremism-trump-era-panel-ii Trump's Decision on Military-Style Weapons Will Harm Communities https://www.cato.org/publications/commentary/trumps-decision-military-style-weapons-will-harm-communities Adam Bates <div class="lead text-default"> <p>In 2004, then-Sheriff Joe Arpaio’s SWAT team in Maricopa County, Ariz., <a href="http://www.phoenixnewtimes.com/news/dog-day-afternoon-6438729" target="_blank">raided a suburban home</a> looking for illegal firearms.</p> </div> , <div class="text-default"> <p>The raid was a comedy of ineptitude.</p> <p>The officers drove their armored vehicle into a parked car on the street. They changed into military-style uniforms on the lawn, leading a neighbor to conclude that they might have been amateur paintballers or even gang members. One of the many tear gas canisters police fired into the home apparently sparked a fire and set the home ablaze. A dog trying to flee the fire was scared back into the home, where it died.</p> <p></p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Administration should learn from mistakes of Arpaio. Disastrous SWAT raids added proof that supplies not only unnecessary, but dangerous.</p> </div> </div> </aside> , <div class="text-default"> <p>Instead of a cache of illegal weapons, the raid recovered an antique shotgun and a legally owned 9mm handgun, and officers made only one arrest — for a failure to appear in court over traffic violations.</p> <p>It should go without saying that military weapons and tactics should be reserved for the most pressing circumstances. Yet the Trump administration is taking the country backward by again giving police departments access to the most dangerous artillery that is often unnecessary for local officers.</p> <p>This week, <a href="https://www.usatoday.com/story/news/politics/2017/08/27/trump-expected-lift-ban-military-gear-local-police-forces/606065001/" target="_blank">Attorney General Jeff Sessions</a> announced the reversal of an Obama-era rule that limits the transfer of certain military equipment to state and local police agencies.</p> <p>The <a href="https://www.usatoday.com/story/opinion/2014/08/13/ferguson-police-michael-brown-militarization-column/14006383/" target="_blank">Pentagon’s 1033 program</a> has provided military surplus equipment to state and local law enforcement agencies for a couple of <a href="http://www.dla.mil/DispositionServices/Offers/Reutilization/LawEnforcement/ProgramFAQs.aspx" target="_blank">decades</a>. The <a href="http://www.cnn.com/2015/05/18/politics/bayonets-police-white-house/index.html" target="_blank">Obama administration</a> made a slight modification to the program by banning the transfer of some military equipment such as high-powered rifles, grenade launchers, bayonets, and some armored vehicles and camouflage uniforms.</p> <p>Militarized law enforcement came under intense scrutiny in 2014 after Missouri teen Michael Brown was killed by police officer Darren Wilson. Police met protesters with tanks, tear gas and military-grade weapons, escalating an already tense situation. Observers could have easily been forgiven for mistaking the officers for occupying soldiers.</p> <p>One photo from the protest quickly went viral and came to symbolize the oppressive, dangerous nature of overly militarized law enforcement. It showed multiple officers in full military gear, pointing riffles at a young, black male who was holding his hands in the air. The officers seem to be saying, do what we say or we'll kill you.</p> <p>That kind of military-tinged imagery is exactly what led some police chiefs to renounce their participation in the weapons program. <a href="https://www.burlingtonvt.gov/Police/Command-Staff-and-Area-Supervisors" target="_blank">Brandon del Pozo</a> of Vermont’s Burlington Police Department said the equipment was starting to <a href="http://www.mychamplainvalley.com/news/burlington-police-no-longer-using-repurposed-military-equipment-for-policing" target="_blank">twist the perspectives</a> of his officers:</p> <p>“We have the resources to handle all but the most inconceivable public safety scenarios. Amassing a worst-case scenario arsenal of military equipment results in officers seeing everyday police work through a military lens. When I realized what a small role the military played in equipping our police, I concluded it was better to return the items.”</p> <p>Del Pozo has his finger on a fundamental question: Can police departments be flooded with military weaponry and technology without blurring the distinction between law enforcement work and military occupation?</p> <p>The history of SWAT teams, like the one in Maricopa County, provides an ominous answer.</p> <p>SWAT teams originated as a response to demanding and dangerous circumstances such as hostage situations, civil unrest and active shooters. But as traditional law enforcement goals gave way to the incentives of the war on drugs, the mission of militarized police units began to creep. Rather than being reserved for emergency situations, the vast majority of SWAT raids today result from search warrants, usually for drugs.</p> <p>Abuses of military tactics and equipment are inevitable. Police officers, like all people, respond to incentives.</p> <p>We can, of course, imagine unlikely scenarios in which the police might need .50 caliber rifles, but there is a cost to turning responses to outlandish possibilities into policy prescriptions. Without adequate transparency, accountability and training, that cost will continue to be paid in lives.</p> </div> Thu, 31 Aug 2017 09:34:00 -0400 Adam Bates https://www.cato.org/publications/commentary/trumps-decision-military-style-weapons-will-harm-communities Militarization Makes Police More Violent https://www.cato.org/blog/militarization-makes-police-more-violent Adam Bates <p>When Attorney General Jeff Sessions announced yesterday the Trump Administration's repeal an Obama-era rule limiting the distribution of certain military equipment (such as tracked vehicles, camouflage uniforms, high-powered rifles, bayonets, and grenade launchers), he <a href="https://www.nytimes.com/2017/08/28/us/politics/trump-police-military-surplus-equipment.html?mcubz=0">dismissed concerns</a> about police militarization as "superficial."  The evidence suggests otherwise: militarization makes police more violent.&#13;<br /> &#13;<br /> Earlier this year, a <a href="http://journals.sagepub.com/doi/full/10.1177/2053168017712885">study</a> conducted by researchers from Harvard, Stanford, Cincinnati, and Gardner-Webb concluded that the Pentagon's 1033 weapons transfer program made participating departments more likely to engage in deadly violence.  After receiving 1033 gear, departments were more likely to kill civilians as well as dogs.  The researchers included the number of dog killings by police (which, according to the Department of Justice, number around <a href="https://www.washingtonpost.com/news/the-watch/wp/2015/05/28/dogs-cops-and-men/?utm_term=.39b7ea31e3f9">10,000 a year</a>) in order to control for possible variations in human behavior during the period of the study.&#13;<br /> &#13;<br /> The study found:&#13;<br /> &#13;</p> <blockquote><p>1033 receipts are associated with both an increase in the number of observed police killings in a given year as well as the change in the number of police killings from year to year, controlling for a battery of possible confounding variables including county wealth, racial makeup, civilian drug use, and violent crime.&#13;<br /> &#13;<br /> [...]&#13;<br /> &#13;<br /> [D]ue to concerns of endogeneity, we re--estimate our regressions using an alternative dependent variable independent of the process by which LEAs request and receive military goods: the number of dogs killed by LEAs. We find 1033 receipts are associated with an increase in the number of civilian dogs killed by police. Combined, our analyses provide support for the argument that 1033 receipts lead to more LEA violence.</p> </blockquote> <p>The researchers pointed to four areas of militarization that drive the increase in violence:&#13;<br /> &#13;</p> <blockquote><p>[W]e argue that increasing LEA access to military equipment will lead to higher levels of aggregate LEA violence. The effect occurs because the equipment leads to a culture of militarization over four dimensions: material; cultural; organizational; and operational. As militarization seeps into their cultures, LEAs rely more on violence to solve problems.</p> </blockquote> <p>It turns out that having a hammer really does make everything look more like a nail.&#13;<br /> &#13;<br /> But what if that increased violence is justified by increased police readiness to deal with emergency situations? &#13;<br /> &#13;<br /> When asked to justify the push for militarization, many law enforcement agencies are quick to point to terrorist attacks and mass murders as a justification for the equipment. Indeed we can imagine situations in which the police might legitimately need grenade launchers or .50 caliber rifles (though the thousands of bayonets local cops have taken from the federal government may be tougher to explain).&#13;<br /> &#13;<br /> But such events are exceedingly rare, while history proves that the police deployment of militarized weapons and tactics will not be. Police routinely cite rare hypothetical emergencies to justify tactics and policies that end up becoming far more routine and abusive.&#13;<br /> &#13;<br /> SWAT teams were originally designed to handle hostage situations and active shooters. Today they often function as hyper-violent warrant servers, as the number of SWAT raids has ballooned from hundreds per year to tens of thousands and responding to hostage situations has given way to serving search and drug warrants.&#13;<br /> &#13;<br /> Police defend civil asset forfeiture with appeals to "taking the profit out" of terrorist organizations and drug cartels, but black market drug profits remains strong as thousands of regular Americans have their property taken without charge or trial.&#13;<br /> &#13;<br /> Law enforcement agencies purchase military-grade surveillance devices such as <a href="https://www.cato.org/publications/policy-analysis/stingray-new-frontier-police-surveillance">Stingray cell phone trackers</a> with terrorism grant money, and justify the outrageous secrecy that shrouds them on national security grounds, but they're virtually never used for terrorism investigations, instead being deployed thousands of times for routine law enforcement investigations as an end-around the warrant requirement.&#13;<br /> &#13;<br /> In other words, military weapons and tactics are inevitably used far more often in everyday policework than in the rare situations that supposedly justify them.&#13;<br /> &#13;<br /> Contrary to Attorney General Sessions' dismissal, the damage done by these government policies is not "superficial." It's not superficial when a SWAT team <a href="http://abcnews.go.com/US/family-toddler-injured-swat-grenade-faces-1m-medical/story?id=27671521">throws a flash grenade</a> in a baby's crib and disfigures the infant's face, or when a family's life is ruined by militarized police <a href="https://www.washingtonpost.com/news/the-watch/wp/2017/07/26/10th-circuit-grants-narrow-victory-to-family-raided-by-a-swat-team-over-loose-leaf-tea/">looking for tea leaves</a>, or when protesters find themselves staring down the <a href="https://www.washingtonpost.com/politics/militarized-police-in-ferguson-unsettles-some-pentagon-gives-cities-equipment/2014/08/14/4651f670-2401-11e4-86ca-6f03cbd15c1a_story.html?utm_term=.9d2a2b2b6578">barrels of sniper rifles</a> and <a href="http://www.slate.com/content/dam/slate/articles/news_and_politics/politics/2014/08/140813_POL_FergusonCops2.jpg.CROP.promo-mediumlarge.jpg">accosted </a>by masked, camo-wearing, rifle-toting police units.&#13;<br /> &#13;<br /> Combined with President Trump's recent pardon of Sheriff Joe Arpaio (who is no stranger to <a href="http://www.phoenixnewtimes.com/news/dog-day-afternoon-6438729">overly violent militarized raids</a> and was convicted for repeatedly violating people's rights in defiance of a court order), this move sends a strong message that police restraint and accountability are taking a back seat in this administration. </p> Tue, 29 Aug 2017 12:35:17 -0400 Adam Bates https://www.cato.org/blog/militarization-makes-police-more-violent Trump Moves to Accelerate Militarization of Cops https://www.cato.org/multimedia/cato-daily-podcast/trump-moves-accelerate-militarization-cops Clark Neily, Adam Bates, Caleb O. Brown <p>The Obama White House narrowed the scope of military gear that could be distributed to local police forces. The Trump White House has undone those small restrictions. Clark Neily and Adam Bates discuss the change.</p> Tue, 29 Aug 2017 10:36:00 -0400 Clark Neily, Adam Bates, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/trump-moves-accelerate-militarization-cops D.C.'s Rule Requiring a "Good Reason" to Carry a Gun Struck Down https://www.cato.org/blog/dcs-rule-requiring-good-reason-carry-gun-struck-down-again Adam Bates <p>The District of Columbia has suffered another defeat in its decades-long effort to restrict gun rights.&#13;<br /> &#13;<br /> Today the D.C. Circuit Court of Appeals<a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/005426559985AEE685258168004F376E/$file/16-7025-1685640.pdf"> struck down</a> the District's "good reason" requirement, which obliges individuals to demonstrate a special need before being allowed to carry a gun.&#13;<br /> &#13;<br /> Some background: the District banned all handgun possession, including in the home, in 1976.  That policy was ruled unconstitutional in the <em>Heller I</em> decision in 2008, which held that the 2nd Amendment protects an individual right to have a handgun in the home for self-defense. The District responded to <em>Heller I</em> by banning the public carrying of handguns.  <em>That</em> ban was ruled unconstitutional in <em>Palmer v. District of Columbia</em> in 2014 (Cato's own <a href="https://www.cato.org/people/tom-palmer">Tom Palmer</a> was the named plaintiff in that case). The District was undeterred, and responded to the <em>Palmer</em> ruling by requiring permit applicants to provide a "good reason" why they should be allowed to carry.&#13;<br /> &#13;<br /> The "good reason," as defined by the D.C. government, is incredibly narrow. Simply being concerned about crime, or living/working in a crime-ridden area of the city does not suffice. Effectively the only people capable of meeting the D.C. test are those working in extraordinarily high-risk occupations or people who have received substantive, specific threats against them.&#13;<br /> &#13;<br /> Two different District Court judges ruled against the "good reason" requirement (one ruling was set aside due to a bit of a procedural morass), and those two cases were combined on appeal to the D.C. Circuit. In a 2-1 decision, a panel of the Court of Appeals struck the "good reason" rule down as unconstitutional.&#13;<br /> &#13;<br /> Judge Griffith of the D.C. Circuit writes:&#13;<br /> &#13;</p> <blockquote><p>At the Second Amendment's core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense. In fact, the Amendment's core at a minimum shields the typically situated citizen's ability to carry common arms generally. The District's good-reason law is necessarily a total ban on exercises of that constitutional right for most D.C. residents. That's enough to sink this law under <em>Heller I</em>.&#13;<br /> &#13;<br />  [...]&#13;<br /> &#13;<br /> We are bound to leave the District as much space to regulate as the Constitution allows - but no more. Just so, our opinion does little more than trace the boundaries laid in 1791 and flagged in <em>Heller I</em>. And the resulting decision rests on a rule so narrow that good-reason laws seem almost uniquely designed to defy it: that the law-abiding citizen's right to bear common arms must enable the typical citizen to carry a gun.&#13;<br /> &#13;<br />  </p> </blockquote> <p>It's important to note that this case is not over.&#13;<br /> &#13;<br /> The District can appeal this ruling back to the D.C. Circuit in order to have it reheard <em>en banc.</em> The case could also ultimately end up in front of the United States Supreme Court which, since its rulings in <em>Heller</em> (2008)<em> </em>and <em>McDonald </em>(2010), hasn't seen fit to offer further guidance to lower courts on whether the 2nd Amendment applies outside the home. With various federal courts coming to different conclusions on that question, this case represents a great opportunity to finally get a definitive answer from the high court.</p> Tue, 25 Jul 2017 13:41:57 -0400 Adam Bates https://www.cato.org/blog/dcs-rule-requiring-good-reason-carry-gun-struck-down-again Violence Is Inherent in Prohibition, Not the Drug Trade https://www.cato.org/publications/commentary/violence-inherent-prohibition-not-drug-trade Adam Bates <div class="lead text-default"> <p>Correcting Attorney General Jeff Sessions’ misstatements about U.S. drug policy is beating a dead horse at this point. The problem is that this particular horse keeps standing back up and killing innocent people.</p> </div> , <div class="text-default"> <p>Mr. Sessions again demonstrated a fundamental misunderstanding of drug violence, claiming in a recent Washington Post op-ed that massive violence is simply an “inherent” part of the drug market that <a title="https://www.washingtonpost.com/opinions/jeff-sessions-being-soft-on-sentencing-means-more-violent-crime-its-time-to-get-tough-again/2017/06/16/618ef1fe-4a19-11e7-9669-250d0b15f83b_story.html?utm_term=.08a00b264322" href="https://www.washingtonpost.com/opinions/jeff-sessions-being-soft-on-sentencing-means-more-violent-crime-its-time-to-get-tough-again/2017/06/16/618ef1fe-4a19-11e7-9669-250d0b15f83b_story.html?utm_term=.08a00b264322" target="_blank">can only be answered</a> with more violence and harsher penalties from the government.</p> <p>Mr. Sessions often attempts to bolster this conception by explaining that drug traffickers cannot rely on courts to settle disputes and resort to violence instead.</p> <p></p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Drug prohibition, not a porous border or anything inherent in Mexican society, is what has turned the Mexican drug war into an actual war.</p> </div> </div> </aside> , <div class="text-default"> <p>The word inherent <a title="https://www.merriam-webster.com/dictionary/inherent" href="https://www.merriam-webster.com/dictionary/inherent" target="_blank">means</a> “by nature” or “intrinsic.” In other words, Sessions is saying that there can never be a peaceful market for these drugs, and that extreme violence is inextricably written into the DNA of drug distribution.</p> <p>But there’s nothing inherent about that. Drug market participants can’t go to court for one simple reason: because lawmakers and enforcers like Jeff Sessions have made it illegal for them to do so. The absence of a mechanism for peaceful dispute resolution isn’t intrinsic in drug trafficking, it’s a direct consequence of U.S. drug policy.</p> <p>***</p> <p><strong>Violence isn’t any</strong> more inherent to the distribution of marijuana or cocaine than it was to the distribution of alcohol in the 1920s. A resident of Chicago in 1929 could be forgiven for wondering whether all the violence on the front page of the <a title="http://archives.chicagotribune.com/1929/02/15/" href="http://archives.chicagotribune.com/1929/02/15/" target="_blank"><em>Chicago Tribun</em>e</a> represented something inherently dangerous in alcohol distribution, but we now know that it didn’t. Prohibition-era alcohol distribution was violent because it was illegal, not the other way around.</p> <p>Today, the executives of Anheuser-Busch might laugh at the suggestion that alcohol distributors can’t settle disputes without resort to gunfire massacres. So might the members of America’s pharmaceutical industry, who manage to distribute billions of dollars in legal drugs without cutting anyone’s throat.</p> <p>Unfortunately, Sessions’ logic seems to be seeping into other areas of the administration as well. President Trump, who once <a title="https://news.google.com/newspapers?nid=1755&amp;dat=19900414&amp;id=eUoeAAAAIBAJ&amp;sjid=EHoEAAAAIBAJ&amp;pg=4675,4533445&amp;hl=en" href="https://news.google.com/newspapers?nid=1755&amp;dat=19900414&amp;id=eUoeAAAAIBAJ&amp;sjid=EHoEAAAAIBAJ&amp;pg=4675,4533445&amp;hl=en" target="_blank">favored</a> the legalization of all drugs, recently <a title="http://www.latimes.com/politics/la-pol-updates-everything-president-we-will-build-the-1498170467-htmlstory.html" href="http://www.latimes.com/politics/la-pol-updates-everything-president-we-will-build-the-1498170467-htmlstory.html" target="_blank">tweeted</a> that drug violence in Mexico is a reason to further separate our two countries rather than acknowledging the immense role that U.S. drug policy has in <a title="http://nationalinterest.org/blog/the-skeptics/neighborhood-insecurity-mexicos-resurgent-drug-violence-15129" href="http://nationalinterest.org/blog/the-skeptics/neighborhood-insecurity-mexicos-resurgent-drug-violence-15129" target="_blank">stimulating Mexican violence</a>.</p> <p>Drug prohibition, not a porous border or anything inherent in Mexican society, is what has turned the Mexican drug war into an actual war.</p> <p>And that story isn’t just happening abroad.</p> <p>***</p> <p><strong>When police officer</strong> Jeronimo Yanez fired seven rounds into a car full of compliant civilians, killing Philando Castile and prompting a <a title="http://www.cnn.com/2017/06/22/opinions/castile-shooting-4-year-old-response-bailey/index.html" href="http://www.cnn.com/2017/06/22/opinions/castile-shooting-4-year-old-response-bailey/index.html" target="_blank">4-year-old girl</a> to beg for her mother’s life, it was the smell of marijuana, Mr. Yanez <a title="http://www.twincities.com/2017/06/21/philando-castile-yanez-smell-of-marijuana-made-him-fear-for-his-life-jeronimo/" href="http://www.twincities.com/2017/06/21/philando-castile-yanez-smell-of-marijuana-made-him-fear-for-his-life-jeronimo/" target="_blank">later said,</a> that convinced him he was dealing with dangerous people.</p> <p>Anyone who would be under the influence of marijuana in close proximity to a child, Mr. Yanez reasoned, is capable of anything and therefore to be regarded as a threat.</p> <p>Would Mr. Yanez have had the same deadly response to someone smoking a cigarette? Or drinking alcohol? We can’t know that, but we do know that the prohibition-driven violence of the U.S. drug trade stigmatizes peaceful drug-users and teaches police officers to regard them as dangerous criminals even when they demonstrate no threatening behavior.</p> <p>That phenomenon isn’t inherent either. It is the direct consequence of conscious decisions by U.S. lawmakers to criminalize a <a title="https://i.unu.edu/media/unu.edu/event/56474/HowBigistheMarket.pdf" href="https://i.unu.edu/media/unu.edu/event/56474/HowBigistheMarket.pdf" target="_blank">massive chunk</a> of the global drug market and to replace peaceful legal means of dispute resolution with gunfights and murders.</p> <p>Americans cannot afford to accept the Sessions argument that these acts of violence are just what happens when people do drugs. The government shrugging its collective shoulders in the face of such violence and chalking it up as “inherent” isn’t just incorrect, it’s a refusal by the nation’s highest lawmakers and enforcement officials to accept responsibility for the direct and deadly consequences of their actions.</p> </div> Sat, 08 Jul 2017 08:55:00 -0400 Adam Bates https://www.cato.org/publications/commentary/violence-inherent-prohibition-not-drug-trade A “Modern Plague”? How the Federal Government Should Address the Opioid Crisis https://www.cato.org/multimedia/events/modern-plague-how-federal-government-should-address-opioid-crisis Jeffrey A. Singer, Adam Bates, Peter Russo <p>According to a recent <em>New York Times</em> analysis, drug overdoses are now the leading cause of death among Americans under age 50. Driving this trend, which shows no sign of abatement, is a surge in opioid-related overdoses. These types of deaths have occurred with such frequency that Maryland, Florida, and now Arizona, have declared medical states of emergency</p> <p>What to do? Solutions range from requiring more federal intervention in the practice of medicine, increasing punishing actions on heroin production in Central America and Afghanistan, and enhancing domestic law enforcement efforts to crack down on street-corner dealers and their supply networks. Other ideas involve an increase in public education, medical intervention, and monitoring, as well as deregulation and legalization.</p> <p>Join us for a clarifying examination of the issues and learn what Congress should and should not do to remedy the situation.</p> Wed, 28 Jun 2017 12:54:00 -0400 Jeffrey A. Singer, Adam Bates, Peter Russo https://www.cato.org/multimedia/events/modern-plague-how-federal-government-should-address-opioid-crisis Jeff Sessions May Be Confused about the Drug War https://www.cato.org/multimedia/cato-daily-podcast/jeff-sessions-may-be-confused-about-drug-war Adam Bates, Caleb O. Brown <p>Is it drug trafficking or drug prohibition that is inherently violent? Adam Bates comments on the strange arguments from the Attorney General.</p> Mon, 26 Jun 2017 17:46:00 -0400 Adam Bates, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/jeff-sessions-may-be-confused-about-drug-war Adam Bates discusses U.S. v. Riley on FOX WHBQ’s 13 6:00 News https://www.cato.org/multimedia/media-highlights-tv/adam-bates-discusses-us-v-riley-fox-whbqs-13-600-news Wed, 07 Jun 2017 11:29:00 -0400 Adam Bates https://www.cato.org/multimedia/media-highlights-tv/adam-bates-discusses-us-v-riley-fox-whbqs-13-600-news Adam Bates discusses the law enforcement’s use of Stingrays on the NPR’s Criminal (In)Justice podcast https://www.cato.org/multimedia/media-highlights-radio/adam-bates-discusses-law-enforcements-use-stingrays-nprs-criminal Tue, 02 May 2017 10:52:00 -0400 Adam Bates https://www.cato.org/multimedia/media-highlights-radio/adam-bates-discusses-law-enforcements-use-stingrays-nprs-criminal Who Just Made the Case for Drug Legalization? Drug-warrior in chief Jeff Sessions, That’s Who https://www.cato.org/publications/commentary/who-just-made-case-drug-legalization-drug-warrior-chief-jeff-sessions-thats Adam Bates <div class="lead text-default"> <p>For decades, critics of the drug war have argued that <a href="http://www.cnn.com/2015/10/30/opinions/bates-gun-violence-drug-policy/" target="_blank">drug prohibition begets violence</a>. Recently, that argument received the seemingly unwitting support of a surprising source: drug war advocate and new Attorney General Jeff Sessions.</p> </div> , <div class="text-default"> <p>"You can't sue somebody for a drug debt. The only way to get your money is through strong-arm tactics, and violence tends to follow that," Sessions <a href="http://www.cbsnews.com/news/jeff-sessions-says-theres-more-violence-around-marijuana-than-one-would-think/" target="_blank">told reporters</a>.</p> <p>This claim <a href="https://www.washingtonpost.com/world/national-security/how-jeff-sessions-wants-to-bring-back-the-war-on-drugs/2017/04/08/414ce6be-132b-11e7-ada0-1489b735b3a3_story.html?utm_term=.e551ecad67fc" target="_blank">has been repeated</a> by the Justice Department's Steven H. Cook, a close Sessions ally.</p> <p>Eight states and the District of Columbia have legalized marijuana. Marijuana growers, distributors and buyers in those juridictions <em>can</em> go to court to settle their differences rather than resorting to violent self-help. The violence that Sessions insists is inherent in the drug trade is a byproduct of prohibition.</p> <p>It's certainly true that the manufacturers, distributors and users of illegal drugs cannot avail themselves of the court system when disputes arise. Sessions' implication that the problem is inherent in the drug market, however, is simply false. The reason drug market participants can't go to court is because the government refuses to let them.</p> <p></p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Sessions wants to roll back legalization and renew the war on drugs — but he accidentally argued the opposite case.</p> </div> </div> </aside> , <div class="text-default"> <p>None of this is new. In 2017, if two alcohol distributors have a dispute, they go to court or settle it in the market. In 1929, if two alcohol distributors had a dispute, they often settled it on the street corner with Tommy guns. Alcohol distribution isn't inherently violent. The government made it that way.</p> <p>With the passage of the 18th Amendment in 1919, the American alcohol market was driven underground. As prohibition took hold, the murder rate skyrocketed, <a href="https://www.aei.org/publication/is-there-really-a-war-on-cops-the-data-show-that-2015-will-likely-be-one-of-the-safest-years-in-history-for-police/" target="_blank">attacks on police officers spiked</a>, and criminal gangs took over large swaths of urban America. We talk about Chicago today as a city plagued by crime, but <a href="https://www.theatlantic.com/national/archive/2013/06/chicago-murders-2013-vs-prohibition/314382/" target="_blank">Prohibition-era Chicago had it beat</a> hands-down. The market for alcohol didn't evaporate under Prohibition, it just became more illegal and more violent.</p> <p>When Prohibition was repealed by the 21st Amendment, the murder rate dropped for more than a decade. Attacks on police officers dropped as well, and the wave of crime receded ... until the drug war ramped up.</p> <p>A study by the Rand Corp., commissioned by the Obama administration, estimated that the U.S. market for marijuana, cocaine, heroin and methamphetamine alone is worth <a href="http://www.rand.org/pubs/research_briefs/RB9770.html" target="_blank">more than $100 billion a year</a>. That much money changing hands without any access to peaceful, lawful means of dispute resolution is a recipe for disaster, and we've seen the consequences of that disaster on our streets and in those of neighboring countries.</p> <p>Even conservative estimates put the toll of lives lost to the Mexican drug war in the tens of thousands. Other estimates <a href="http://www.pbs.org/wgbh/frontline/article/the-staggering-death-toll-of-mexicos-drug-war/" target="_blank">reach much higher</a>. Police and paramilitary responses have failed to stem the flow of illicit drugs into the U.S. There is simply too much money to be made. The one policy that has shown some potential for reducing drug violence in Mexico: <a href="https://www.washingtonpost.com/news/wonk/wp/2016/03/03/legal-marijuana-is-finally-doing-what-the-drug-war-couldnt/?utm_term=.9536b165bb07" target="_blank">legalization in America</a>.</p> <p>It's time to learn the same lesson with other drugs that we were forced to learn with alcohol: Addiction should be treated as a public health issue, not a crime.  Alcohol prohibition didn't end alcoholism or alcohol abuse, and it didn't rid America of the <a href="https://www.washingtonpost.com/news/wonk/wp/2016/11/18/trumps-pick-for-attorney-general-good-people-dont-smoke-marijuana/?utm_term=.ad2dfd018868" target="_blank">"bad people"</a> who consumed it.</p> <p>There is no reason to continue believing that drug prohibition is any more likely to do those things than alcohol prohibition was. Rather than continually escalating the war on drugs into an actual war — President Donald Trump <a href="http://bigstory.ap.org/article/trump-mexico-take-care-bad-hombres-or-us-might" target="_blank">has even hinted at</a> a military invasion of Mexico — let's learn the lesson our great-grandparents did. Drug use is not inherently violent. Drug prohibition, however, is.</p> <p>The drug market is going to exist no matter what hard-line policies President Trump and Attorney General Sessions <a href="http://www.politico.com/blogs/under-the-radar/2017/03/sessions-drug-charges-235853" target="_blank">come up with</a>. The only question is whether it's going to be a peaceful, legally regulated market or a vigilante-enforced black market. Jeff Sessions understands, if unwittingly, the problem with drug prohibition. Now he just needs to accept the obvious solution.</p> </div> Mon, 24 Apr 2017 10:41:00 -0400 Adam Bates https://www.cato.org/publications/commentary/who-just-made-case-drug-legalization-drug-warrior-chief-jeff-sessions-thats Eighteen Years After Columbine, What Have We Learned About Spree Shootings? https://www.cato.org/blog/eighteen-years-after-columbine-what-have-we-learned-about-spree-shootings Adam Bates <p>Eighteen years ago today, Dylan Klebold and Eric Harris walked into Columbine High School and murdered 12 students and a teacher, as well as injuring dozens more people. The mayhem ended when the two killers took their own lives as police closed in.&#13;<br /> &#13;<br /> The massacre, perpetrated with guns and rudimentary explosives, created a political firestorm. Music, video games, and especially guns became lightning rods for outrage and demands for new legislation. The controversy re-energized gun control advocates and spawned Michael Moore’s award-winning anti-gun film <em>Bowling for Columbine</em>. Hundreds of new gun control bills were introduced, although few became law.&#13;<br /> &#13;<br /> Subsequent school shootings, such as Virginia Tech in 2007 and Newtown, Connecticut in 2012, have generated similar cycles of gun control fervor followed by demands for new laws, but the fundamental debate remains the same: what can we do to effectively mitigate the risk of such tragedies?&#13;<br /> &#13;<br /> In 2015 David Kopel attempted to answer this question <a href="https://www.cato.org/publications/policy-analysis/costs-consequences-gun-control">by analyzing</a> the efficacy of the types of gun control proposals that are so common after school shootings, including magazine bans, universal background checks, and assault weapons bans. He found little evidence that gun control legislation has been or could be effective at preventing spree shootings.&#13;<br /> &#13;<br /> From the summary:&#13;<br /> &#13;</p> <blockquote><p>Although universal background checks may sound appealing, the private sale of guns between strangers is a small percentage of overall gun sales. Worse, the background check bills are written so broadly that they would turn most gun owners into criminals for innocent acts — such as letting one’s sister borrow a gun for an afternoon of target shooting.&#13;<br /> &#13;<br /> Magazine bans are acts of futility because the extant supply is enormous. Today, magazines of up to 20 rounds for handguns, and 30 rounds for rifles, are factory standard, not high-capacity, for many of the most commonly owned firearms. These magazines are popular with law-abiding Americans for the same reason they are so popular with law enforcement: because they are often the best choice for lawful defense of one’s self and others.&#13;<br /> &#13;<br /> Gun-control advocates have been pushing for a ban on assault weapons for more than 25 years. This proposal is essentially a political gimmick that confuses people. That is because the term is an arbitrarily defined epithet. A federal ban was in place between 1994 and 2004, but Congress declined to renew it after studies showed it had no crime-reducing impact.</p> </blockquote> <p>What has occasionally proven effective at stopping spree shootings is the armed self-defense of would-be victims or bystanders.  Kopel notes, for instance, that shootings at Pearl High School in Mississippi and at Appalachian School of Law in Virginia were halted by armed bystanders.&#13;<br /> &#13;<br /> Highly motivated killers who plan their attacks weeks or months in advance (as Klebold and Harris did) have an inherent advantage over their unarmed victims, and are unlikely to ever be deterred by criminal penalties. The best examples of these crimes being stopped in their tracks are examples of armed defense, not legislative preemption.&#13;<br /> &#13;<br /> Notably, the Columbine tragedy did produce one effective policy change, but it wasn’t about guns. &#13;<br /> &#13;<br /> At the time of the shooting, standard police procedure for an active shooting situation was for the officer on the scene to cordon off the area and await the arrival of a SWAT team or other specialized unit to handle the crisis.&#13;<br /> &#13;</p> <p>At Columbine, the armed sheriff’s deputy who served as a school resource officer followed protocol. He exchanged fire with the gunmen when they left the building, allowing several victims to escape. But the deputy did not enter the building himself, instead waiting for a better-equipped SWAT team to arrive.  Klebold and Harris continued their rampage following the initial gunfire exchange, eventually killing themselves as SWAT officers closed in.&#13;<br /> &#13;<br /> Following claims that the delay in police response allowed Harris and Klebold to kill more people, police departments around the country began to implement what would become known as Immediate Action Rapid Deployment (IARD), in which the first officers on the scene of an active shooting tries to confront and neutralize the threat even before the SWAT team arrives.&#13;<br /> &#13;<br /> Gun crime remains a serious problem in America, not just spree shootings (which are exceedingly rare occurrences), but in general. Nearly two decades later, the lesson of Columbine is that an intense public desire to “do something” after a spree shooting is not enough to generate effective policy solutions.  Our response to mass violence must be based on logic, available evidence, and compliance with the mandates of the constitution.</p> <p></p> Thu, 20 Apr 2017 14:28:00 -0400 Adam Bates https://www.cato.org/blog/eighteen-years-after-columbine-what-have-we-learned-about-spree-shootings Will Congressman Tom Marino be the Trump Administration's Drug Czar? https://www.cato.org/blog/will-congressman-tom-marino-be-trump-administrations-drug-czar Tim Lynch, Adam Bates <p>CBS <a href="http://www.cbsnews.com/news/pennsylvania-congressman-to-be-named-drug-czar-by-donald-trump/">reports</a> that President Trump plans to name Congressman Tom Marino (R-PA) to head the Office of National Drug Control Policy, an office colloquially known as the federal government’s “Drug Czar.”&#13;<br /> &#13;<br /> Rep. Marino has a long history of taking a hard line on the drug war. He voted against the Rohrabacher-Farr Amendment that barred the Department of Justice from spending federal funds to prosecute state-legal medicinal marijuana operations. The amendment, which has passed several times with <a href="http://clerk.house.gov/evs/2015/roll283.xml">bipartisan support</a>, allows state medical marijuana industries to function without the constant fear of federal prosecution. Rep. Marino also <a href="http://clerk.house.gov/evs/2016/roll221.xml">voted to prevent</a> Veterans’ Affairs doctors at facilities in states with legal marijuana from prescribing medical marijuana to their patients.&#13;<br /> &#13;<br /> While the Drug Czar has a limited impact on policy, the expected nomination of Rep. Marino is another red flag for marijuana reform advocates.&#13;<br /> &#13;<br /> 44 states and the District of Columbia allow some form of legal cannabis consumption, including eight states (and D.C.) which have legalized the recreational use of marijuana. The dire predictions of drug warriors in those states <a href="https://object.cato.org/sites/cato.org/files/pubs/pdf/pa799.pdf">have not come true</a>.&#13;<br /> &#13;<br /> As we’ve <a href="https://www.cato.org/blog/jeff-sessions-gets-it-wrong-drug-war">noted before</a>, Donald Trump campaigned on a relatively moderate platform regarding marijuana legalization, but his choices for key drug policy positions in the administration continue to raise the specter of a federal crackdown on marijuana reform efforts.&#13;<br /> &#13;<br /> Of course the drug war isn’t just about marijuana.  A <a href="https://www.cato.org/publications/policy-analysis/four-decades-counting-continued-failure-war-drugs">new Cato policy analysis</a> from Christopher J. Coyne and Abigail R. Hall demonstrates how four decades of a hardline approach to drug policy in America have failed. &#13;<br /> &#13;<br /> With a growing <a href="https://www.cato.org/multimedia/events/what-should-be-done-about-heroin-problem">heroin and opioid epidemic</a>, it’s <a href="https://www.cato.org/cato-handbook-policymakers/cato-handbook-policy-makers-8th-edition-2017/war-drugs">time to ditch</a> the failed prohibitionist policies of the drug war. Countries like Portugal have <a href="https://www.cato.org/publications/white-paper/drug-decriminalization-portugal-lessons-creating-fair-successful-drug-policies">successfully abandoned</a> the militarized approach to drug policy; it’s time for the United States to do the same. &#13;<br /> &#13;<br /> Unfortunately, President Trump appears to be moving in the wrong direction.</p> Wed, 12 Apr 2017 17:42:00 -0400 Tim Lynch, Adam Bates https://www.cato.org/blog/will-congressman-tom-marino-be-trump-administrations-drug-czar Jeff Sessions Continues to Hint at Escalating the Drug War https://www.cato.org/blog/jeff-sessions-gets-it-wrong-drug-war Adam Bates <p>As a candidate, Donald Trump held a relatively moderate line on drug prohibition, often arguing that issues like marijuana legalization should be left to state governments. His selection of Jeff Sessions as Attorney General, however, sent an entirely different message. Sessions is a long-time champion of the federal drug war, and since taking over the Justice Department he has continued to make statements that hint at a return to a much harsher federal approach to drug prohibition.&#13;<br /> &#13;<br /> The <em>Washington Post</em> <a href="https://www.washingtonpost.com/world/national-security/how-jeff-sessions-wants-to-bring-back-the-war-on-drugs/2017/04/08/414ce6be-132b-11e7-ada0-1489b735b3a3_story.html?utm_term=.c69b7eae59f3">ran a story</a> this weekend detailing some of the shifts taking place at the Department of Justice, including a green light for federal prosecutors to step up prosecutions for low-level offenses and to rely on heavy mandatory minimums to leverage plea deals. &#13;<br /> &#13;</p> <blockquote><p>Sessions is also expected to take a harder line on the punishment for using and distributing marijuana, a drug he has long abhorred. His crime task force will review existing marijuana policy, according to a memo he wrote prosecutors last week.</p> </blockquote> <p>The <em>Post</em> story also highlights the central role of Steven H. Cook, a former police officer and federal prosecutor, within the Sessions Department of Justice. Cook has been traveling with Sessions as the Attorney General makes the case for a return to the "tough-on-crime" posture of the 80s and 90s, arguing that efforts to treat even low-level drug offenses as anything less than violent crimes are misguided and "soft."&#13;<br /> &#13;<br /> Kevin Ring, president of Families Against Mandatory Minimums, expressed his alarm to the <em>Post</em>:&#13;<br /> &#13;</p> <blockquote><p>"If there was a flickering candle of hope that remained for sentencing reform, Cook's appointment was a fire hose. There simply aren't enough backhoes to build all the prisons it would take to realize Steve Cook's vision for America."</p> </blockquote> <p>Cook, like Sessions, believes that the drug market is inherently violent and therefore the only response is to crack down:&#13;<br /> &#13;</p> <blockquote><p>"Drug trafficking is inherently violent. Drug traffickers are dealing in a heavy cash business. They can't resolve disputes in court. They resolve the disputes on the street, and they resolve them through violence."</p> </blockquote> <p>It's true that the black market for drugs relies on cash transactions and violence, but Cook and Sessions ignore the obvious implication. The drug market has to rely on cash transfers and violence because drugs are illegal. Drug market violence is a function of the market's illegality, not of the drugs themselves. The same was true of alcohol distributors under prohibition. In 2017 if two alcohol distributors have a dispute, they settle it in court. If two alcohol distributors in 1929 had a dispute, they settled it on the street corner with Tommy guns and Molotov cocktails.  &#13;<br /> &#13;<br /> Drug trafficking isn't inherently violent; drug prohibition is.&#13;<br /> &#13;<br /> The Trump Administration has yet to announce much in the way of concrete policy changes, but the personnel choices and the drug warrior rhetoric coming from the new administration are causes for concern looking forward.  </p> <p>For more on drug policy recommendations, the Director of Cato's Project on Criminal Justice Tim Lynch recently produced a <a href="https://object.cato.org/sites/cato.org/files/serials/files/cato-handbook-policymakers/2017/2/cato-handbook-for-policymakers-8th-edition-23_0.pdf">chapter on the federal drug war</a> for Cato's Handbook for Policymakers. The chapter calls for the repeal of the federal Controlled Substances Act and the abolition of the Drug Enforcement Administration.&#13;<br /> &#13;<br /> Those with an interest in the mass incarceration problem in America may also be interested in an <a href="https://www.cato.org/events/locked-true-causes-mass-incarceration-how-achieve-real-reform">upcoming book forum</a> featuring Fordham law professor John Pfaff, whose new book argues that local prosecutors are a primary and underappreciated force behind mass incarceration. The forum will take place at the Cato Institute on April 26.</p> <p></p> Mon, 10 Apr 2017 14:47:00 -0400 Adam Bates https://www.cato.org/blog/jeff-sessions-gets-it-wrong-drug-war Poor Defendants Should Get to Choose Their Lawyers Too https://www.cato.org/blog/poor-defendants-should-get-choose-their-lawyers-too Tim Lynch, Adam Bates <p>Americans may take for granted that if they're ever accused of a crime, they can choose their own attorney to represent them. The Supreme Court has ruled that Americans have a right to counsel in serious criminal cases, and nobody seriously argues that the government should make that important decision for us.  &#13;<br /> &#13;<br /> Yet that is exactly what happens across the country when defendants are too poor to hire their own attorneys.  While other countries such as the United Kingdom have long allowed indigent defendants to choose their own lawyers, American jurisdictions historically restrict that choice to either a court-appointed lawyer or an assigned public defender. &#13;<br /> &#13;<br /> In 2010, the Cato Institute published a study, <a href="https://www.cato.org/publications/policy-analysis/reforming-indigent-defense-how-free-market-principles-can-help-fix-broken-system"><em>Reforming Indigent Defense</em></a>, which proposed a client choice model where poor persons accused of crimes would be able to choose their own attorney to represent them in court. If the accused opted for the public defender, he could make that choice, but if he wanted to explore other options, he could do that also.  The Texas Indigent Defense Commission became aware of the Cato report and decided to give it a try with a pilot program in Comal County, near San Antonio. The program went into operation in 2015.  &#13;<br /> &#13;<br /> Today, the Justice Management Institute released an evaluation based on two years of data from the Comal Client Choice program.  The report, called <a href="http://www.jmijustice.org/wp-content/uploads/2017/04/The-Power-of-Choice_29-MAR-2017.pdf"><em>The Power of Choice: The Implications of a System Where Indigent Defendants Choose Their Own Counsel</em></a>, suggests that the program is working as well or better than the old system across a variety of metrics.  &#13;<br /> &#13;<br /> The JMI study looks at four factors to assess the viability of the Comal program:&#13;<br /> &#13;</p> <ul> <li>Does the model impact the quality of representation?  </li> <li>Does the model produce a higher level of satisfaction and procedural justice?</li> <li>Does the model impact case outcomes?</li> <li>What is the impact of the model on overall cost and efficiency?</li> <p>&#13; </p> </ul> <p>The study compares the results of Client Choice participants with the representations of defendants who chose to use the pre-existing court-appointment system.&#13;<br /> &#13;<br /> While some aspects of representation were the same for both groups (for instance, client assessments of how hard their lawyers worked were not statistically distinguishable), participants in the Client Choice program were able to meet with their lawyers more quickly, had a stronger sense of fairness, and were more likely to either plead to lesser charges or exercise their right to trial than their peers.  The report also finds that the Client Choice program did not increase costs in the system.&#13;<br /> &#13;<br /> Perhaps as important as any objective metric, a majority of defendants who were offered the ability to choose their own attorney opted to do so, suggesting that giving indigent defendants some agency in their choice of representation has a value in itself.  Freedom of choice matters to people.  &#13;<br /> &#13;<br /> In too many jurisdictions, indigent criminal defense is in a state of crisis. Texas is in the vanguard with its Client Choice program. Hopefully these promising results will <a href="https://www.cato.org/publications/commentary/let-indigent-defendants-choose-their-own-lawyers%20%20%20">encourage more jurisdictions</a> to consider injecting choice and market principles into their indigent defense systems.&#13;<br /> &#13;</p> <p> </p> Thu, 06 Apr 2017 10:01:00 -0400 Tim Lynch, Adam Bates https://www.cato.org/blog/poor-defendants-should-get-choose-their-lawyers-too Drug War Skeptic Beto O'Rourke Announces Senate Bid https://www.cato.org/blog/drug-war-skeptic-beto-orourke-announces-senate-bid Adam Bates <p>Since his election to Congress in 2012, Beto O'Rourke (D-TX) has been one of the federal legislature's most outspoken critics of the failed drug war. Rep. O'Rourke is in the news again this week following his announcement that he <a href="http://www.nydailynews.com/news/politics/texas-punk-rocker-challenges-ted-cruz-senate-article-1.3015837">plans to run against</a> sitting Senator Ted Cruz in 2018.&#13;<br /> &#13;<br /> In November of 2011, O'Rourke spoke at Cato's "Ending the Global War on Drugs" conference regarding his experiences as an El Paso native and the costs of drug prohibition on both sides of the border.&#13;<br /> &#13;</p> <div class="responsive-embed"></div><p>Rep. O'Rourke also spoke with Cato regarding his support for immigration reform in March of last year.&#13;<br /> &#13;</p> <div class="responsive-embed"></div> Mon, 03 Apr 2017 15:43:00 -0400 Adam Bates https://www.cato.org/blog/drug-war-skeptic-beto-orourke-announces-senate-bid Fair-Weather Federalists https://www.cato.org/publications/commentary/fair-weather-federalists Adam Bates <div class="lead text-default"> <p>A common refrain from conservative Donald Trump supporters was that Trump would ensure the sanctity of the 10th Amendment through his court picks and his nominee for attorney general. Only a month into the administration, however, that hope is already in danger of collapsing.</p> </div> , <div class="text-default"> <p>While there is every reason to believe that Neil Gorsuch will be a solid federalist, the trajectory of the Department of Justice and the administration as a whole is threatening a much different path.</p> <p>Recently White House Press Secretary <a href="https://www.washingtonpost.com/news/post-politics/wp/2017/02/23/spicer-feds-could-step-up-anti-pot-enforcement-in-states-where-recreational-marijuana-is-legal/?utm_term=.3fa9ba0d2204" target="_blank">Sean Spicer said</a> that states that have legalized marijuana would see more federal enforcement action. This suggests that the Sessions Department of Justice would take a more federal line on marijuana than the Obama administration, which largely, <a href="http://time.com/4080110/dea-medical-marijuana-california-ruling/" target="_blank">albeit inconsistently</a>, respected state laws legalizing marijuana.</p> <p></p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Conservatives continue to champion the 10th Amendment while ignoring the Trump administration's overreach.</p> </div> </div> </aside> , <div class="text-default"> <p>The response from at least one legalizing state was immediate: Washington Attorney General Bob Ferguson, fresh from a successful challenge to the Trump administration's Muslim travel ban, <a href="http://www.seattletimes.com/seattle-news/marijuana/washington-state-will-resist-federal-crackdown-on-legal-weed-ag-ferguson-says/" target="_blank">stated</a> that he "will resist any efforts by the Trump administration to undermine the will of the voters in Washington state."</p> <p>This hostility to federal intervention into state sovereignty is an argument that should be familiar and persuasive to 10th-Amendment-loving conservatives. Yet across the country, conservatives seem to be abandoning the cherished concept of state sovereignty whenever it's used to defend state behavior they don't like.</p> <p>Republicans are still quick to invoke the 10th Amendment when it comes to protecting certain policies from federal interference. Just this week, Texas Attorney General Ken Paxton <a href="http://fortune.com/2017/02/22/trump-transgender-school-bathroom-reaction/" target="_blank">stated</a> that President Obama's effort to federally protect transgender public school students "unlawfully invaded areas that are left to state discretion under the 10th Amendment." Conservatives have made similar arguments to fend off federal control of sexual assault investigations on college campuses under Title IX.</p> <p>But when the debate shifts to drug prohibition or the way local law enforcement agencies interact with immigrants, that support for local control seems to evaporate, risking the credibility of the entire concept.</p> <p>A strict reading of the Constitution, on which Republicans have prided themselves for decades, compels a conclusion that the federal government has no authority to override state drug policy, nor to commandeer state officials to enforce federal immigration laws. These "unlawful invasions of state discretion" are just as brazen as federal bathroom regulations, and carry much graver consequences for our constitutional system.</p> <p>Criminal justice is traditionally a state function, and historically when the federal government wanted new authority to invade the state criminal justice space, it had to ask for it.</p> <p>When the federal government wanted to ban alcohol, for instance, federal agents didn't just start arresting alcohol traffickers. Prohibition advocates were forced to secure an entirely new amendment to the Constitution granting the government the authority to prohibit alcohol. That authority was subsequently rescinded by the 21st Amendment when alcohol prohibition turned out to be a disaster.</p> <p>Why should drug prohibition be any different?</p> <p>The citizens of eight states and the District of Columbia have voted to legalize recreational marijuana. The citizens of dozens more states have voted for some form of medical marijuana allowance. That is how our constitutional system is designed to function, and Republicans should respect that principle even if they're convinced that <a href="https://www.washingtonpost.com/news/wonk/wp/2016/11/18/trumps-pick-for-attorney-general-good-people-dont-smoke-marijuana/?utm_term=.2f290d953695" target="_blank">"good people don't smoke marijuana."</a></p> <p>The same issue arises in the debate over sanctuary cities. The term is slightly nebulous, but the primary aspect is a policy whereby state and/or local law enforcement agencies commit to only enforcing local law, rather than splitting time as proxies for federal immigration enforcement.</p> <p>That exercise of local sovereignty has similarly come under fire from the Trump administration, which has <a href="http://www.npr.org/sections/thetwo-way/2017/01/26/511899896/trumps-threatens-sanctuary-cities-with-loss-of-federal-funds" target="_blank">threatened to strip funding</a> from localities that refuse to submit their enforcement agencies to federal control.</p> <p>In the constitutional context, the federal takeover of local law enforcement is known as "commandeering," and it has long been opposed by advocates of 10th Amendment federalism. It's up to the federal government to enforce federal immigration law, not state agencies that are supposed to be enforcing federal law and instituting the priorities of their local constituents.</p> <p>For those who care about decentralized power, checks and balances, and limited government, inconsistency by federalism's staunchest advocates should alarm.</p> <p>The more seemingly partisan this fair-weather federalism becomes, the more decentralization will be seen as a Republican talking point – trotted out when it benefits conservative causes but shunned when it's used to defend local policies conservatives loathe.</p> </div> Wed, 15 Mar 2017 09:37:00 -0400 Adam Bates https://www.cato.org/publications/commentary/fair-weather-federalists Clarence Thomas Is Skeptical of Civil Asset Forfeiture https://www.cato.org/blog/clarence-thomas-signals-skepticism-civil-asset-forfeiture Adam Bates <p>Justice Clarence Thomas yesterday <a href="https://www.supremecourt.gov/orders/courtorders/030617zor_6j37.pdf">signalled</a> that the abusive practice of civil asset forfeiture is ripe for expanded constitutional scrutiny.&#13;<br /> &#13;<br /> The case is <em>Lisa Olivia Leonard v. Texas</em>.  James Leonard (the petitioner's son) was stopped by police for a traffic infraction in 2013 "along a known drug corridor."  Police searched Mr. Leonard's vehicle and discovered a safe containing $201,100 and the bill of sale for a home. Arguing that the money was either proceeds from a drug sale or going to be used in such a sale, the state initiated forfeiture proceedings and took the money.  The safe actually belonged to James' mother Lisa, who brought suit to protect her property from the government seizure.&#13;<br /> &#13;<br /> The Supreme Court denied certiorari for procedural reasons, but Justice Thomas had some harsh words for civil forfeiture anyway, and suggested that it's time for the Supreme Court to take another look at the practice:&#13;<br /> &#13;</p> <blockquote><p>Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof.&#13;<br /> &#13;<br /> Partially as a result of this distinct legal regime, civil forfeiture has in recent decades become widespread and highly profitable. And because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.&#13;<br /> &#13;<br /> This system - where police can seize property with limited judicial oversight and retain it for their own use - has led to egregious and well-chronicled abuses...</p> </blockquote> <p>Justice Thomas also noted the disparate impact these types of abuses have on the poorest and most vulnerable communities:&#13;<br /> &#13;</p> <blockquote><p>These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.  Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.</p> </blockquote> <p>The opinion goes on to explain that while the court has historically upheld the constitutionality of civil forfeiture, the modern practice of forfeiture has strayed far from its narrow historical use and purpose:&#13;<br /> &#13;</p> <blockquote><p>I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.&#13;<br /> &#13;<br /> First, historical forfeiture laws were narrower in most respects than modern ones. Most obviously, they were limited to a few specific subject matters, such as customs and piracy. Proceeding <em>in rem </em>in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of the United States courts. These laws were also narrower with respect to the type of property they encompassed. For example, they typically covered only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods).&#13;<br /> &#13;<br /> Second, it is unclear whether courts historically permitted forfeiture actions to proceed civilly in all respects. Some of this Court's early cases suggested that forfeiture actions were in the nature of criminal proceedings...</p> </blockquote> <p>Lastly, while agreeing with the Court's refusal to hear the case for procedural reasons, Justice Thomas nonetheless expressed his interest in taking another look at civil forfeiture:&#13;<br /> &#13;</p> <blockquote><p>Whether this Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.</p> </blockquote> <p>In his opinion, Justice Thomas refers to the Institute for Justice's <a href="http://ij.org/report/policing-for-profit/">Policing for Profit</a> survey of forfeiture laws around the country, and also to Sarah Stillman's expose <a href="http://www.newyorker.com/magazine/2013/08/12/taken">Taken</a>, documenting several instances of forfeiture abuse. Both of those sources are worth reading for a better idea of just how bad the incentives of civil forfeiture are and the abuses that have resulted.  &#13;<br /> &#13;<br /> It's heartening to have a Supreme Court Justice so squarely acknowledge and raise questions about a predatory government practice that has proceeded unchecked for so long.&#13;<br /> &#13;<br /> One of the most common questions I receive when I talk about civil asset forfeiture is "why does the Supreme Court allow this?" My answer has always been "because these laws predate the country and the court has never seen fit to re-examine them."  &#13;<br /> &#13;<br /> This opinion is a clear signal that at least one member of the Supreme Court is ready to take a fresh and skeptical look.</p> Tue, 07 Mar 2017 10:15:00 -0500 Adam Bates https://www.cato.org/blog/clarence-thomas-signals-skepticism-civil-asset-forfeiture 19. Technology and Law Enforcement https://www.cato.org/cato-handbook-policymakers/cato-handbook-policy-makers-8th-edition-2017/technology-law-enforcement Adam Bates, Matthew Feeney <div class="text-default"> <p><strong><em>Congress should</em></strong></p> </div> , <div class="text-default"> </div> , <blockquote class="blockquote"> <div> <p>• ensure that all federal law enforcement grants are conditioned on policies that protect privacy and promote transparency and accountability;<br />• impose a probable cause requirement on the collection of metadata through cell phone tracking devices used by federal law enforcement agencies, including joint federal/state task forces; and<br />• direct the FBI and the FCC to rescind the nondisclosure agreements and secrecy policies that federal agencies negotiate with state and local law enforcement partners regarding cell phone tracking devices, or stingrays.</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Since the beginning of modern policing in 1829, law enforcement agencies have taken advantage of new technologies. As automobiles, cameras, Tasers, radios, airplanes, and eavesdropping devices arrived, police were quick to put the new technology into the field. However, recent developments in surveillance technology, combined with a lagging Fourth Amendment jurisprudence, have jeopardized the constitutional rights of millions of American citizens without adequate legislative oversight. Modern technology gives police access to tools such as body cameras, drones, and cell phone tracking devices that could, without appropriate regulations in place, allow for the warrantless and persistent surveillance of entire American cities.</p> <p>Law enforcement agencies have a legitimate interest in the use of body cameras, drones, and cellular phone trackers, but that interest must be weighed against the privacy interests and constitutional rights of American citizens. Our system of checks and balances obligates legislators and judges to ensure that law enforcement practices respect the rights of the American people.</p> <p>While law enforcement is traditionally a state and local function in our federal system, over the last few decades the federal government has increasingly injected itself into local law enforcement through the proliferation of grant awards and equipment transfer programs. Ostensibly meant to help fight the drug war and the War on Terror, these federal interventions in local law enforcement serve to distort law enforcement priorities while granting the federal government a massive role in shaping law enforcement policy at the state and local level.</p> <p>Congress should consider the policies outlined below, which would allow law enforcement agencies to take advantage of new technology while also increasing law enforcement accountability and transparency and guarding against persistent and indiscriminate surveillance.</p> <h2><em>Cell Phone Tracking</em></h2> <p>Cell phone trackers are colloquially referred to by the Harris Corporation trade name "StingRay" or the technical term "IMSI-catchers" (i.e., the International Mobile Subscriber Identity of nearby mobile phones). These devices operate by emitting radio signals and are regulated under the authority of the Federal Communications Commission (FCC). The FCC, in turn, requires state and local law enforcement agencies to coordinate their acquisition of stingrays with the Federal Bureau of Investigation (FBI). Pursuant to that requirement, the FBI has proffered a nondisclosure agreement to state and local agencies applying to use stingrays. Among other things, the nondisclosure agreement forbids the law enforcement agencies from disclosing any information about the use or capabilities of the technology to the public, courts, or defendants. The agreement even gives the FBI the authority to compel local prosecutors to withhold evidence or even drop entire prosecutions rather than disclose stingray evidence.</p> <p>For example, a judge in New York State ordered the Erie County sheriff's office to disclose the terms of its nondisclosure agreement with the FBI. The agreement included the following provision:</p> </div> , <blockquote class="blockquote"> <div> <p>In addition, the Erie County Sheriff's Office will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology.</p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>The federal government's demand for such extensive secrecy threatens privacy rights and undermines important federalism and separation of powers principles. Congress should direct the FBI and FCC to abolish such requirements for state and local stingray use.</p> <p>The level of secrecy surrounding stingrays has made it difficult for courts to oversee the operation of the devices. With prosecutors, at the behest of the FBI, dropping cases rather than acknowledging stingray use, the jurisprudence is relatively sparse — despite the thousands of stingray deployments around the country. In the last year, however, the use of stingrays has garnered more attention from defense attorneys, courts, and legislators.</p> <p>A Maryland state appeals court recently found that a warrantless use of stingray equipment to track down an attempted murder suspect was a violation of the Fourth Amendment. The court concluded that the suspect had a reasonable expectation of privacy in the location of his cell phone within an apartment. The federal Second Circuit Court of Appeals recently reached the same conclusion about another warrantless stingray search of an apartment.</p> <p>Rather than wait for the courts, several state legislatures have taken steps to prevent stingray abuses by state and local law enforcement. Illinois, for instance, recently passed the Citizen Privacy Protection Act, which requires a showing of probable cause before a court will authorize the deployment of a stingray device. Congress should do the same and impose a warrant requirement on the collection of telephony metadata or digital content by stingray technology.</p> <h2><em>Body Cameras</em></h2> <p>The body camera, another tool that raises federalist concerns, has become an increasingly prominent hallmark of criminal justice reform debates. Overwhelmingly popular among the public and used by an increasing number of police departments, body cameras can help improve evidence gathering as well as accountability and transparency in law enforcement. In December 2014, a month after it was announced that Ferguson, Missouri, police officer Darren Wilson would not face charges over the killing of Michael Brown, the Obama administration proposed 50 percent matching funds for the purchase of 50,000 police body cameras.</p> <p>In 2015, the Department of Justice announced that more than $23.2 million worth of body camera funds would be awarded to police departments in 32 states. Body camera funds worth more than $20 million were also awarded to 106 law enforcement agencies in 32 states and Puerto Rico in 2016. It's not surprising that the federal government has awarded body camera funds. In the wake of Brown's killing, there were renewed discussions about police use-of-force and police interactions with the communities they serve. The deaths of Alton Sterling, Samuel DuBose, Walter Scott, five Dallas police officers, and many others have maintained the urgency of these discussions. But while body cameras are popular, it's important to note that they can be expensive; federal grants will appeal to departments that otherwise would struggle with the fiscal impact of a body camera program.</p> <h2><em>Drones</em></h2> <p>Unmanned aerial vehicles (UAVs), commonly called "drones," vary considerably in size and capability and are used to collect video data. Unlike body camera programs, which do not require federal permission to use, drones are already regulated by the federal government. Police departments and other public entities can fly drones after either receiving a Certificate of Waiver or Authorization from the Federal Aviation Administration (FAA), or by operating drones under "Part 107" rules, which require (among other things) that the drone be in the line of sight of the pilot and not be flown over people, although police departments can request that those requirements be waived.</p> <p>Still, under certificates and "Part 107" rules, police departments are not required to adhere to the types of privacy and transparency policies necessary to protect the rights of Americans from excessive government intrusion. Indeed, as the head of the FAA's Unmanned Aircraft Systems Integration Office said in 2013, "The FAA has no authority to make rules or enforce any rules relative to privacy." Congress, however, <em>can</em> condition law enforcement grants on the acceptance of policies that protect important constitutional values.</p> <h2><em>Transparency, Accountability, and Privacy</em></h2> <p>Stingrays, body cameras, and drones can play a role in improving law enforcement by making it easier for police to search for suspects and missing persons and gather evidence. Body cameras in particular can be valuable in promoting increased accountability and transparency in law enforcement. However, these benefits come with significant privacy concerns that Congress should address.</p> <p>Each of these tools is capable of collecting a vast amount of sensitive data. Subjects of body cameras include not only the victims of crimes, but children, informants, and those involved in accidents. In addition, police body cameras can film inside homes.</p> <p>As for UAVs, in the course of collecting video data, drones can gather information about backyards and other private property observable from the air. Thanks to Supreme Court rulings from the 1980s, warrantless naked-eye aerial surveillance of backyards is <em>not</em> proscribed. Thus, in the absence of restrictive regulations, Americans may have to adapt to a heightened level of surveillance: the explosion in the number of drones means that police will be able to snoop on people hosting barbecues, sunbathing, gardening, or playing with their children in backyards without having to secure a warrant first. That would be disturbing enough if drones were outfitted only with cameras, but they can also be used as platforms for a host of other surveillance tools such as license plate readers and thermal imagers.</p> <p>Stingrays, which can be helpful in locating suspects and kidnapping victims, nonetheless present an array of privacy and constitutional issues. While the full capabilities of the devices remain shrouded in secrecy, the ability to intercept content from the cell phones of everyone in a given geographic area without a warrant or even notification to the user is troubling. Telephony metadata such as call times, durations, and incoming and outgoing numbers allows the government to piece together the intimate, private details of an individual's life. While the government insists that its stingray devices "are not configured" to intercept the actual content of calls, the capability exists. Without proper oversight that capability will remain an even greater threat to privacy than the bulk collection of metadata and warrantless location tracking.</p> <p>In addition to privacy concerns associated with modern policing, there are also worries about transparency. Despite widespread international coverage of American police killings, the standard of nationwide data on fatal police encounters is poor. Journalism outlets, not government bodies, provide the most comprehensive databases.</p> <p>New technologies do help police gather evidence; but under the right guidelines, those technologies can also play a role in informing the public about law enforcement activities. As more and more police departments seek out new technologies, Congress should ensure that the federal government only funds or lends drones, body cameras, and stingrays for law enforcement agencies that demonstrate a commitment to transparency, accountability, and privacy.</p> <h2><em>Conditions for Use of Equipment</em></h2> <p>At a minimum, any of America's roughly 18,000 law enforcement agencies applying for federal grants related to body cameras, drones, or stingrays or seeking to borrow such equipment from federal agencies should outline policies that protect privacy and are consistent with increased accountability and transparency in law enforcement. Unfortunately, federal law enforcement grants have too often been awarded to police departments with poor policies. To promote increased law enforcement transparency and accountability while protecting privacy, Congress should make federal law enforcement grants conditional on agencies' adherence to the following requirements:</p> <p><em>Transparency</em><br />• Regularly publish the number of drones, body cameras, and IMSI-catchers the agency has, how often these tools are used, and how much data they collect.<br />• Make the agency's drone, body camera, and IMSI-catcher policies available online.<br />• Collect and regularly release data related to use-of-force incidents, including those unrelated to the use of body cameras, drones, and IMSI-catchers.<br />• Publish specifications allowing courts, defense attorneys, and the public at large to understand the full capabilities of the surveillance devices in use.</p> <p><em>Accountability</em><br />• Make available footage of incidents of public interest.<br />• Prohibit officers from viewing UAV or body camera footage before making statements related to a use-of-force incident.<br />• Establish guidelines that clearly state when body cameras should be on: during traffic stops, searches, arrests, detentions, use-of-force incidents, and all 911 responses.<br />• Ban drones from being outfitted with lethal as well as nonlethal weapons.</p> <p><em>Privacy</em><br />• Require law enforcement agencies to secure a warrant before using an IMSI-catcher or UAV, except in exigent circumstances.<br />• Ban the release of UAV and body camera footage showing the interior of private residential property.<br />• Ban the collecting and/or reading of text message and phone call content collected by IMSI-catchers without a warrant.<br />• Ban the use of biometric software on body camera and UAV data.</p> <p>Finally, Congress should take steps to apply these policies to federal law enforcement agencies. Those agencies are not only some of the country's largest law enforcement agencies, but also some of the best funded.</p> <p>Since the advent of the drug war and the War on Terror, the federal government has become a powerful and pervasive influence on state and local law enforcement policies. As long as the federal government maintains that role, Congress should endeavor to protect Americans' most cherished constitutional rights and prevent abuse. Congress should require appropriate transparency, accountability, and privacy-respecting policies before flooding state and local law enforcement agencies with grant money and cutting-edge surveillance technology.</p> <h2><em>Suggested Readings</em></h2> <p>Brown, C. Justin, and Kasha M. Lee. "<a href="http://cjbrownlaw.com/wp-content/uploads/2015/07/Brown-Leese_p12-20_June_2015_Sting-Ray_devices_06222015_431_BCX.pdf">StingRay Devices Usher in a New Fourth Amendment Battleground</a>." National Association of Criminal Defense Lawyers, <em>The Champion</em>, June 2015.</p> <p>Coburn, Tom. "<a href="https://info.publicintelligence.net/SenatorCoburn-UASI.pdf">Safety at Any Price: Assessing the Impact of Homeland Security Spending in U.S. Cities</a>." Office of Sen. Tom Coburn, Committee on Homeland Security and Governmental Affairs, December 2012.</p> <p>Feeney, Matthew. "<a href="https://www.cato.org/publications/policy-analysis/watching-watchmen-best-practices-police-body-cameras">Watching the Watchmen: Best Practices for Police Body Cameras</a>." Cato Institute Policy Analysis no. 782, October 27, 2015.</p> <p>McNeal, Gregory. "<a href="http://www.brookings.edu/research/reports2/2014/11/drones-and-aerial-surveillance">Drones and Aerial Surveillance: Considerations for Legislatures</a>." Brookings Institution Project on Civilian Robotics, November 2014.</p> <p>Miller, Lindsay, Jessica Toliver, and Police Executive Research Forum. <em><a href="http://ric-zai-inc.com/Publications/cops-p296-pub.pdf">Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned</a></em>. Washington: Department of Justice, Office of Community Oriented Policing Services, 2014.</p> <p>Rule, Troy A. "<a href="http://ssrn.com/abstract;eq2482567">Airspace in an Age of Drones</a>." <em>Boston University Law Review</em> 95 (2015): 155-208.</p> <p>Stanley, Jay. "<a href="https://www.aclu.org/other/police-body-mounted-cameras-right-policies-place-win-all">Police Body-Mounted Cameras: With Right Policies in Place, a Win for All-Version 2.0</a>." American Civil Liberties Union, March 2015.</p> </div> Thu, 16 Feb 2017 03:00:00 -0500 Adam Bates, Matthew Feeney https://www.cato.org/cato-handbook-policymakers/cato-handbook-policy-makers-8th-edition-2017/technology-law-enforcement Stingrays: A New Frontier in Police Surveillance - Panel 2 https://www.cato.org/multimedia/events/stingrays-new-frontier-police-surveillance-panel-2 Adam Bates, Julian Sanchez, Laura Moy, Neema Singh Guliani, Jonathan Rudenberg <p>If you own a cell phone, you’re carrying a miniature tracking device in your pocket — a fact law enforcement agencies are increasingly taking advantage of to investigate crimes and monitor suspected criminals. “Cell-site simulators” or “Stingrays” — first designed for military use, but increasingly in the hands of local police forces — are the technology that makes it possible. Yet those agencies have fought fiercely against efforts to inform the public about how they are used, and a recent bipartisan report by the House Committee on Oversight and Government Reform found there’s no consensus on the rules that should regulate their deployment, or even what legal authorities govern Stringray tracking.</p> <p>At this Cato Policy Forum, Rep. Jason Chaffetz will present his committee’s findings, followed by a panel discussion in which policy experts and technologists explore how law enforcement can exploit this powerful tool to fight crime — while also checking its enormous power to encroach on privacy.</p> Wed, 15 Feb 2017 10:15:00 -0500 Adam Bates, Julian Sanchez, Laura Moy, Neema Singh Guliani, Jonathan Rudenberg https://www.cato.org/multimedia/events/stingrays-new-frontier-police-surveillance-panel-2 Stingray: A New Frontier in Police Surveillance https://www.cato.org/multimedia/cato-daily-podcast/stingray-new-frontier-police-surveillance Adam Bates, Caleb O. Brown <p>Stingrays trick your phone into giving data to the cops. Is that legal? Constitutional? Adam Bates comments.</p> Tue, 14 Feb 2017 21:22:00 -0500 Adam Bates, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/stingray-new-frontier-police-surveillance Stingray: A New Frontier in Police Surveillance https://www.cato.org/blog/stingray-new-frontier-police-surveillance Adam Bates <p>I've written previously <a href="https://www.cato.org/blog/stingrays-police-secrecy">on this blog</a> regarding stingray devices: powerful surveillance tools which allow law enforcement agents to spy on the cell phones of unsuspecting Americans, often without judicial or legislative oversight.&#13;<br /> &#13;<br /> For a deeper dive into the subject, I've put together a policy analysis detailing the past history, present issues, and future prospects of stingray devices and police surveillance more generally.&#13;<br /> &#13;<br /> From the executive summary:&#13;<br /> &#13;</p> <blockquote><p>Police agencies around the United States are using a powerful surveillance tool to mimic cell phone signals to tap into the cellular phones of unsuspecting citizens, track the physical locations of those phones, and perhaps even intercept the content of their communications.&#13;<br /> &#13;<br /> The device is known as a stingray, and it is being used in at least 23 states and the District of Columbia. Originally designed for use on the foreign battlefields of the War on Terror, “cell-site simulator” devices have found a home in the arsenals of dozens of federal, state, and local law enforcement agencies.</p> <p>In addition, police agencies have gone to incredible lengths to keep information about stingray use from defense attorneys, judges, and the public. Through the use of extensive nondisclosure agreements, the federal government prevents state and local law enforcement from disclosing even the most elementary details of stingray capability and use. That information embargo even applies to criminal trials, and allows the federal government to order evidence withheld or entire cases dropped to protect the secrecy of the surveillance device.&#13;<br /> &#13;<br /> The controversy around police stingray surveillance challenges our antiquated Fourth Amendment jurisprudence, undermines our cherished principles of federalism and separation of powers, exposes a lack of accountability and transparency among our law enforcement agencies, and raises serious questions about the security of our individual rights as the government’s technological capability rapidly advances.</p> <p></p></blockquote> <p>The full analysis can be found <a href="https://www.cato.org/publications/policy-analysis/stingray-new-frontier-police-surveillance">here</a>.&#13;<br /> &#13;<br /> The interaction of law enforcement and surveillance technology promises to be one of the most important civil liberties issues of the near future. Our current privacy jurisprudence is sorely outdated and often inapplicable to the issues presented by modern technology and law enforcement practices.&#13;<br /> &#13;<br /> Whether we're talking about cell phone tracking, <a href="https://www.cato.org/publications/commentary/baltimore-air-surveillance-should-cause-concerns">persistent aerial surveillance</a>, or nationwide <a href="https://www.cato.org/blog/nationwide-e-verify-unwelcome-step-towards-national-id">biometric databasing</a>, the ability of the government to invade and regulate the most intimate spheres of our lives continues to grow. It is incumbent on policymakers and jurists to ensure that our legal framework and constitutional principles keep pace with these growing threats to our privacy.&#13;<br /> &#13;<br />  &#13;<br /> &#13;<br /> For more on stingray surveillance, Cato will be hosting a <a href="https://www.cato.org/events/stingrays-new-frontier-police-surveillance">policy forum</a> on February 15, including remarks from Rep. Jason Chaffetz (R-UT), who has authored legislation attempting to rein in surveillance abuses.</p> Fri, 03 Feb 2017 14:26:00 -0500 Adam Bates https://www.cato.org/blog/stingray-new-frontier-police-surveillance Stingray: A New Frontier in Police Surveillance https://www.cato.org/publications/policy-analysis/stingray-new-frontier-police-surveillance Adam Bates <div class="lead text-default"> <p>Police agencies around the United States are using a powerful surveillance tool to mimic cell phone signals to tap into the cellular phones of unsuspecting citizens, track the physical locations of those phones, and perhaps even intercept the content of their communications.</p> </div> , <div class="text-default"> <p>The device is known as a stingray, and it is being used in at least 23 states and the District of Columbia. Originally designed for use on the foreign battlefields of the War on Terror, “cell-site simulator” devices have found a home in the arsenals of dozens of federal, state, and local law enforcement agencies.</p> <p>In addition, police agencies have gone to incredible lengths to keep information about stingray use from defense attorneys, judges, and the public. Through the use of extensive nondisclosure agreements, the federal government prevents state and local law enforcement from disclosing even the most elementary details of stingray capability and use. That information embargo even applies to criminal trials, and allows the federal government to order evidence withheld or entire cases dropped to protect the secrecy of the surveillance device.</p> <p>The controversy around police stingray surveillance challenges our antiquated Fourth Amendment jurisprudence, undermines our cherished principles of federalism and separation of powers, exposes a lack of accountability and transparency among our law enforcement agencies, and raises serious questions about the security of our individual rights as the government’s technological capability rapidly advances.</p> </div> , <div class="text-default"> <p><strong>Background</strong></p> <p>In 2013, three men set up a drug deal in a Tallahassee parking lot. When the drug dealer arrived, the men pulled out a weapon and robbed the dealer of the drugs and his cell phone.<sup><a href="#cite-1">1</a></sup> Police arrested the robbers a few days later, in possession of the drugs and the phone, and charged them with armed robbery with a deadly weapon, which carries a mandatory minimum sentence of nearly three years in prison under Florida law and allows sentences of up to 30 years. Prosecutors had the men dead to rights.</p> <p>But the case took a bizarre turn when defense attorneys began wondering how the police managed to find their clients so quickly. The police and prosecution refused to say. Finally, the judge demanded answers. Rather than reveal the method by which police were able to find the suspects, the prosecution offered the men a plea deal: probation, with no jail time.<sup><a href="#cite-2">2</a></sup> Why would prosecutors drop such a "slam dunk" case?</p> <p>The case came apart due to the government's use of a surveillance device it refused to disclose to the court. Across the United States, federal and state law enforcement agencies are sweeping up cell phone and location data from American citizens using a device colloquially referred to as a "stingray."<sup><a href="#cite-3">3</a></sup> Stingray surveillance devices are cellular site simulators — they mimic the signal of a cell phone tower in order to force cell phones in the area to connect. Once a phone connects, the officer can download information from the phone or track its location.</p> <p>Originally designed for military and national security use, the surveillance devices made their way into local law enforcement officers' hands, in coordination with the federal government, through a variety of transfer and grant programs — such as the Urban Areas Security Initiative — as well as through local funding sources such as civil asset forfeiture funds. Police agencies in 23 states and the District of Columbia, as well as federal agencies including the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the National Security Administration (NSA), and the Department of Homeland Security, are known to be using the devices.<sup><a href="#cite-4">4</a></sup> Because of the difficulties of discovering law enforcement use of the technology, it is reasonable to assume that police agencies in many more states are also using the devices in secret.</p> <p>While events like the 2014 unrest in Ferguson, Missouri, and repeated stories of botched Special Weapons and Tactics (SWAT) raids have laid bare many of the problems involved in an increasingly militarized domestic police force, mission creep has not been limited to weapons and tactics.<sup><a href="#cite-5">5</a></sup> What the War on Drugs has done for police militarization, the War on Terror is now doing for police intelligence gathering, and the privacy of millions of Americans is at risk.</p> <p>Much remains unknown about these devices. More troubling still is that the lack of public knowledge is by design. Through the use of nondisclosure agreements, a refusal to honor freedom of information requests, and deceit toward courts and the public, the full capabilities of these devices, the extent of their use by law enforcement, and the existence of policies to govern their use remain secret. But interested defense lawyers and civil liberties advocates have uncovered evidence that the use of stingray devices by domestic law enforcement agencies poses a litany of legal and ethical questions. The purpose of this paper is to illuminate those issues and to suggest some possible legislative and judicial remedies.</p> <p>The paper will detail the history of the devices and their use by local law enforcement, the known and alleged extent of their capabilities, and why this technology renders millions of innocent Americans at risk of having their personal data and communications information swept up in law enforcement fishing expeditions.</p> <p>In recent years, stingrays have moved from military and national security uses to routine police use. Surveillance technology, designed for use on battlefields or in antagonistic states where constitutional concerns are minimal, has increasingly found its way into the hands of local law enforcement, often without any discernible effort to adapt the equipment or the policies governing its tactical use to the home front, where targets are citizens with constitutional rights rather than battlefield combatants.</p> <p>Further exacerbating the problems with stingray transfers are the efforts of the Harris Corporation (the Florida-based manufacturer of the devices) and the federal agencies responsible for licensing and coordinating the transfers of these devices to state and local law enforcement agencies to hide the technology. The administrative regime that the federal government and the Harris Corporation have built requires law enforcement agencies to keep the capabilities, uses, and often, the very existence of stingrays a secret from citizens, legislators, and courts.</p> <p>In defense of this veil of secrecy, government agencies have offered several justifications. Advocates of domestic stingray use insist that the devices are essential tools for law enforcement and that public revelation of their technological capabilities will compromise the efficacy of surveillance. They point to instances where stingray surveillance facilitated a positive outcome, and they highlight the need for law enforcement technology to keep up with advances in the technology of the criminal world.</p> <p>While stingray technology indeed gives law enforcement officers an added advantage over their surveillance targets, the advantage does not justify secrecy or answer constitutional concerns. The claims that these devices are essential for preventing terrorist attacks and bringing down drug kingpins do not, as this paper will show, fit with the data thus far uncovered, which details stingray use by local law enforcement. Terrorists and drug kingpins long ago concluded that their cell phones were liabilities, and the reports detailing local stingray use support that conclusion. Several data releases compelled by state freedom of information litigation have uncovered little evidence that stingrays are being used to foil terrorists. The releases have, however, revealed thousands of warrantless stingray uses across the country for entirely routine law enforcement actions. Rather than bringing down terrorists and cartels, the government is using stingray surveillance to sidestep the Fourth Amendment's warrant requirement.</p> <p>Meanwhile, the overly restrictive terms of the nondisclosure agreement, upon which both the Harris Corporation and the FBI condition the local use of stingrays, have compromised prosecutions of people suspected of serious violent crimes. In other words, the ostensibly hypothetical prosecutions of terrorists and drug kingpins are crowding out actual prosecutions of criminals when police and prosecutors are forbidden from disclosing stingray use to the courts.</p> <p> This phenomenon is not an accident; the terms of the agreement make such crowding out inevitable. The government plainly views sacrificing individual prosecutions, even for serious crimes, as an acceptable price for concealing the nature of stingray surveillance. The FBI's nondisclosure agreement is clear: in exchange for permission to use stingray devices, state and local officials must surrender prosecutorial discretion to the federal government.</p> <p>Few jurisdictions have willingly admitted to deploying stingray devices. Even fewer have offered any semblance of a publicly available policy on their use. The Department of Justice, which has deployed stingrays for years, only recently announced an initial stingray policy for Justice Department agencies, and it leaves much to be desired. The use of stingray surveillance devices in the absence of a warrant from a fully informed judge and without any legislative or public oversight undermines the separation of powers necessary to hold the government accountable.</p> <p>The relationship between the federal government, Harris, and state and local law enforcement agencies also represents a threat to American federalist principles. The federal government's terms of use amount to a demand that state and local officials abrogate their authority to prosecute cases when the federal government would rather maintain secrecy. These conditions undermine the police powers of the states, as does the mandate that agencies conceal their surveillance tactics from judges in cases before them.</p> <p>This threat to federalism was apparent when, in 2014, U.S. Marshals literally raided the Sarasota Police Department and seized stingray documentation in order to prevent the department from complying with a state-level freedom of information request.<sup><a href="#cite-6">6</a></sup> The Florida chapter of the American Civil Liberties Union (ACLU) had recently secured an order requiring the Sarasota police to turn over documents pertaining to stingray use. To prevent that information from being turned over to the ACLU and the public, the U.S. Marshals Service launched a pre-dawn raid on the police department to take possession of the information. The federal government has also urged local law enforcement agencies to deceive state judges, and continues to exert pressure in favor of secrecy rather than public disclosure and oversight.<sup><a href="#cite-7">7</a></sup></p> <p>Ultimately, the increasing militarization of police through federal equipment transfers and grant programs unavoidably risks the subversion of local law enforcement priorities in favor of federal ones. When state and local law enforcement are beholden to the federal government for funding, equipment, and tactics, state law enforcement priorities are inevitably altered.</p> <p>Stingray use presents several novel legal issues as well. The Fourth Amendment provides that people have a right to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."<sup><a href="#cite-8">8</a></sup> Over the years, the Supreme Court has adopted methods of analyzing Fourth Amendment claims, such as the reasonable expectation of privacy<sup><a href="#cite-9">9</a></sup> test and third-party doctrine.<sup><a href="#cite-10">10</a></sup></p> <p>In the absence of guidance from the courts, many law enforcement agencies settle for the use of what are known as "pen register" or "trap and trace" orders, which generally require less evidence of wrongdoing than a proper warrant would. <sup><a href="#cite-11">11</a></sup> As the names suggest — both were originally methods of obtaining information from telegraph machines — these legal standards were created at a time when today's technological infrastructure could scarcely be imagined.</p> <p>What it means to "be secure" from unreasonable searches is also the source of renewed interest among Fourth Amendment scholars, who argue that the phrase's meaning has been historically misconstrued. This paper will explore that argument and whether it contains the answer to the problem of mass surveillance under our constitutional framework.</p> <p>As the private details of our lives are increasingly susceptible to digital hacking and surveillance, the government's technological capabilities have far outpaced legal standards created to regulate much older and less invasive technology. It is incumbent upon legislatures and courts to close the growing gap.</p> <p>Finally, this paper will explore possible reforms, including efforts at both the state and federal level that are already underway. Several state legislatures have already undertaken efforts to oversee the use of these devices, several courts have now revised their rules for dealing with stingray evidence, and there is a realistic potential for public policy to vastly improve the protection of our constitutional rights in the face of warrantless surveillance by law enforcement. While law enforcement's crime-fighting capabilities must keep pace with advances in technology, stingray supporters' argument that complete secrecy is the only means of effecting such advances requires scrutiny.</p> <p><strong>How Do Stingrays Work?</strong></p> <p>Although the precise extent of stingray use remains shrouded in secrecy, defense lawyers and civil liberties advocates, working through trial discovery efforts and freedom of information litigation, have uncovered a great deal about the capabilities of the devices.</p> <p>Historically, police have tracked cellular phones through the use of cell tower data collected from, and in coordination with, third-party cell signal carriers. Through the use of pen register or trap and trace orders, police compel carriers to disclose phone records that allow law enforcement agents to locate particular cellular phones. The records allow police to use the carrier's cell towers to triangulate the position of the suspect's phone at any given time.<sup><a href="#cite-12">12</a></sup></p> <p>Stingrays, on the other hand, give government agents the capability to circumvent that process by locating cell phones without the assistance of cell carriers, potentially enabling law enforcement to avoid seeking any judicial authorization first.</p> <p>Stingrays are cellular-site simulators. They operate by mimicking the signal of a cell phone tower in order to force all cell phones within a given area to connect to the stingray device.</p> <p>Cell phones are designed to automatically connect to the cell tower that is broadcasting the strongest signal. A typical cell phone could connect and reconnect dozens of times in a given day in order to achieve the strongest signal as the user travels. Stingray devices produce a boosted signal that muscles out the signals from legitimate cell towers and becomes the preferred signal source for the cell phone. All of this can transpire without the knowledge of, or any input from, the cell phone user or the network carrier. Once the phones are connected to the device, the stingray operator can locate the phone, interfere with its signal, and even retrieve personal data from the device.</p> <p>A phone's location can be triangulated using its international mobile subscriber identity (IMSI), which is a unique number that phones use to communicate with the cellular network. There are two methods of using the IMSI to locate a phone: the government can either ask the third-party carrier to voluntarily reveal the IMSI of a particular phone or compel the carrier under a court order. As the stingray forces cell phones in a target area to connect to it, the operator can screen the incoming "ripped" IMSI numbers against the known IMSI number he or she is trying to track. Once the suspect IMSI pings the stingray, the precise location of the phone can be triangulated.</p> <p>Alternatively, if the IMSI number of the target is unknown, the stingray can collect the IMSI numbers of every phone in the target location.<sup><a href="#cite-13">13</a></sup> Law enforcement can then visually survey the scene while collecting cell data in order to isolate the IMSI number of an individual suspect's phone. As police follow the suspect out of range of the other phones, his unique IMSI will eventually become apparent to the stingray operator. This tactic can be combined with the previously discussed pinging tactic in a way that cuts the network carrier entirely out of the process and allows police to both derive and surveil a given IMSI number on their own.</p> <p>The location data produced by the stingray and its accompanying software is remarkably precise. Law enforcement officials have testified that stingray devices have allowed them to locate cell phones to within six feet and to identify a phone in a particular section of an apartment in a large apartment complex.<sup><a href="#cite-14">14</a></sup> The precision of this data raises constitutional questions regarding warrantless searches of private domiciles, a practice the Supreme Court has historically viewed with immense skepticism.</p> <p>The full extent of the stingray data-ripping capability is unknown, but there is substantial reason to believe that even user content, such as browser activity, SMS text messages, and the content of phone calls can be intercepted. The Department of Justice's own Electronic Surveillance Manual is vague but certainly leaves the door open to widespread personal data collection:</p> </div> , <blockquote class="blockquote"> <div> <p>If the cellular telephone is used to make or receive a call, the screen of the [cell-site simulator] would include the cellular telephone number (MIN), the call's incoming or outgoing status, the telephone number dialed, the cellular telephone's ESN, the date, time, and duration of the call, and the cell site number/sector (location of the cellular telephone when the call was connected) . . . [Cell site simulators] and similar devices <em>may be capable of intercepting the contents of communications </em>[emphasis added].<sup><a href="#cite-15">15</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>The Department of Justice recently articulated publicly, for the first time, a written policy for Department of Justice stingray use, but that policy does little to allay concerns about the possibility of excessive data collection. Rather than claim that current stingray devices lack the ability to take content, the policy states that devices are not "configured" to do so and that to take content in that manner would violate federal law:</p> </div> , <blockquote class="blockquote"> <div> <p>Cell-site simulators used by the Department must be configured as pen registers, and may not be used to collect the contents of any communication, in accordance with 18 U.S.C. 3127(3).<sup><a href="#cite-16">16</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>The implication is clear: the federal government denies using stingray devices to take user content in the domestic law enforcement context, but nothing in the Department of Justice policy refutes that the devices indeed possess such a capability.</p> <p>Even insofar as the policy requires the use of warrants and forbids the collection and retention of private data, it is only administrative guidance rather than statutory law. Further, as the Department of Justice policy applies only to the federal agencies under the jurisdiction of the Department of Justice, there remains a substantial danger that other federal, state, and local law enforcement agencies do not impose similar restraints.<sup><a href="#cite-17">17</a></sup></p> <p>Stingray devices are capable of collecting a tremendous amount of personal data, and not just from suspected criminals. The stingray device doesn't discriminate between target cell phones and other phones in the area. It can interfere with signals, record telephony metadata, pinpoint locations, and potentially intercept the content of calls and text messages. Despite this intrusive capability, many jurisdictions have no publicly available policy guidelines at all, due in large part to the way stingrays came into the possession of domestic law enforcement agencies in the first place.</p> <p><strong>Domestication of Stingray Surveillance</strong></p> <p>The cell-site simulators used by law enforcement are primarily manufactured by the Florida-based Harris Corporation. Originally used exclusively by the federal government, the proliferation of cell-simulator software for purely state and local law enforcement use has rapidly accelerated.<sup><a href="#cite-18">18</a></sup></p> <p>The technology is currently in use by the Federal Bureau of Investigation; the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); the Department of Homeland Security (DHS); Immigrations and Customs Enforcement (ICE); the U.S. Marshals Service; and the Drug Enforcement Administration; as well as the Army, Navy, Marine Corps, National Guard, and the National Security Agency. Even the Internal Revenue Service possesses stingray devices.<sup><a href="#cite-19">19</a></sup> Freedom of Information Act (FOIA) requests, along with litigation and media investigation, have revealed state or local law enforcement use of the technology in 23 states and the District of Columbia as of October 2016.<sup><a href="#cite-20">20</a></sup></p> <p>By 2010, the Harris Corporation had entered into negotiations with the Federal Communications Commission (FCC), which regulates the sale and use of all radio-emitting devices, to begin licensing stingray equipment to state and local law enforcement.<sup><a href="#cite-21">21</a></sup> Harris requested, and the FCC assented to, a provision of the licensing agreement that would require law enforcement agencies that wish to employ stingray devices to coordinate their acquisition and use with the FBI.<sup><a href="#cite-22">22</a></sup></p> <p>In exercising its coordination authority, the FBI requires state and local law enforcement agencies to accept a comprehensive nondisclosure agreement before being allowed to acquire stingray devices. Law enforcement officials have interpreted the nondisclosure agreement as preventing even the disclosure of the agreement itself, and until recently, lawyers and civil libertarians could only speculate about its terms.</p> <p>However, in March 2015, a Supreme Court of New York<sup><a href="#cite-23">23</a></sup> ruling in favor of the New York Civil Liberties Union against the Erie County Sheriff's Office finally led to the disclosure of an unredacted copy of the FBI's coordination agreement.<sup><a href="#cite-24">24</a></sup> The Erie County agreement imposes 11 conditions on the agency's use of stingray devices, on issues ranging from training requirements to a mandate that agencies keep the devices secret from public information requests.</p> <p>The most remarkable of these provisions grants the FBI plenary power to compel state and local authorities to drop criminal cases, regardless of the severity of the offense, if the secrecy of the stingray device would be compromised by moving forward with the prosecution. The provision also bars law enforcement agencies and prosecutors from disclosing any revealing information about the devices at any stage of criminal or civil proceedings.</p> <p>The "drop prosecution" condition of the FBI nondisclosure agreement with Erie County reads in full:</p> </div> , <blockquote class="blockquote"> <div> <p>In addition, the Erie County Sheriff's Office will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wireless collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology. This point supposes that the agency has some control or influence over the prosecutorial process. Where such is not the case, or is limited so as to be inconsequential, it is the FBI's expectation that the law enforcement agency identify the applicable prosecuting agency, or agencies, for inclusion in this agreement.<sup><a href="#cite-25">25</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>The "no information" provision states:</p> </div> , <blockquote class="blockquote"> <div> <p>The Erie County Sheriff's Office shall not, in any civil or criminal proceeding, use or provide any information concerning the Harris Corporation wireless collection equipment/technology [...] including, but not limited to, during pre-trial matters, in search warrants and related affidavits, in discovery, in response to court ordered disclosure, in other affidavits, in grand jury hearings, in the State's case-in-chief, rebuttal, or on appeal, or in the testimony in any phase of civil of criminal trial, without the prior written approval of the FBI.<sup><a href="#cite-26">26</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>In other words, if defense attorneys ask the right questions, they can force the prosecution to choose between dropping the case (or at least the evidence gleaned from the use of a stingray) and violating the terms of the nondisclosure agreement and risking the ire of the federal government.</p> <p>This situation is not hypothetical. Evidence from numerous jurisdictions shows state and local prosecutors doing precisely what the nondisclosure agreement ostensibly demands: dropping evidence or even entire prosecutions against criminal suspects when their defense attorneys suspect that stingrays were used in the investigations of their clients and demand to see the devices in court.</p> <p>Shortly after the unredacted nondisclosure terms were revealed, the FBI issued a statement denying that it had ever invoked the authority to compel prosecutors or police to refuse to participate in prosecutions built upon stingray evidence.<sup><a href="#cite-27">27</a></sup> The statement did not, however, disclose whether or how often the FBI has authorized disclosure of stingray data to courts or defendants pursuant to the "no information" clause of the agreement. The FCC, for its part, has denied any responsibility for both the terms of the FBI's nondisclosure agreement and the requirement that state and local law enforcement agencies agree to it in the first place.<sup><a href="#cite-28">28</a></sup> Notwithstanding these statements, state and local law enforcement agencies around the country have, rightly or wrongly, interpreted the agreement to mean that they are not allowed to disclose the nature of stingray surveillance devices to courts or defense attorneys.</p> <p>Over time, stingrays have moved from military and national security tools to routine law enforcement devices. National security and military agencies may occasionally have a need for such extensive secrecy mandates, but what justifications can state and local police agencies offer to defend material omissions to judges, attorneys, criminal defendants, and the public at large?</p> <p><strong>Justifications for Stingray Use</strong></p> <p>Law enforcement agencies have offered a variety of justifications for stingray use and for the lack of transparency accompanying it. The primary justification for stingray use is that cell-site simulator surveillance is a powerful tool for law enforcement, and of this, there is little doubt. Stingrays have been deployed in thousands of investigations around the country and have helped to locate violent suspects accused of heinous crimes.</p> <p>The ability to surreptitiously track a suspect's movements in real time, to locate a suspect within a specific room of a larger building, or to identify a suspect in a large crowd is of obvious value to law enforcement.<sup><a href="#cite-29">29</a></sup> Insofar as government officials have disclosed information — often at the order of a court — regarding stingray use, it's clear that many criminal investigations have been in some way assisted by the use of cell-simulator technology.</p> <p>But whether stingray technology is a valuable asset for law enforcement isn't the end of the inquiry. Investigative ease is not the sole element to consider. The U.S. Constitution restricts the ability of the government to perform unreasonable searches and seizures. The Fourth Amendment's warrant requirement makes it clear that investigative power must be balanced against an individual's right to be secure in his person and property. Separation of powers and checks and balances frustrate government efficiency in order to prevent abuse.</p> <p>In order to assess the stated justifications for stingray use and secrecy, the utility to law enforcement must be weighed against established legal principles, such as privacy rights, the separation of powers, and due process. The efficiency of law enforcement is only a legitimate interest insofar as law enforcement stays within the bounds of the Constitution.</p> <p>The two most commonly asserted justifications for stingray use and secrecy relate to the War on Terror and the War on Drugs. Law enforcement advocates of stingray devices consider the ability to surreptitiously track the cell phones of drug traffickers and would-be terrorists an essential tool for maintaining drug prohibition and combating terrorism.</p> <p>The argument in support of the secrecy surrounding stingrays builds upon the same foundation. If terrorists and drug runners get wind of what stingrays are and how they operate, as the argument goes, then suspects will be able to neutralize the surveillance by changing their behavior.<sup><a href="#cite-30">30</a></sup></p> <p>Law enforcement officials often refer to the War on Terror in their efforts to procure stingray devices. Indeed, much of the funding for these devices comes to state and local law enforcement through federal homeland security and defense grants, such as the Urban Areas Security Initiative (UASI).<sup><a href="#cite-31">31</a></sup> Competition for this grant money invariably skews law enforcement priorities away from investigating and preventing typical crimes and toward national security functions. By signing onto these federal initiatives, state and local police are essentially pledging to take on federal law enforcement responsibilities in exchange for being allowed to acquire federal resources.</p> <p>For instance, in their application for stingray equipment in 2006, officials from the Michigan State Police stated that the technology would be vital in allowing "the State to track the physical location of a suspected terrorist who is using wireless communications as part of their communication."<sup><a href="#cite-32">32</a></sup> In Tacoma, Washington, the police cited the threat of improvised explosive devices (IEDs) in their application for the technology.<sup><a href="#cite-33">33</a></sup> Perhaps needless to say, in the time since the grant was approved, there is no evidence that stingray surveillance has been used to avert improvised explosive device attacks in Tacoma.</p> <p>While police departments have been reluctant to reveal details about their uses of stingray devices unless forced to by court orders, the data thus far suggests that cases such — as the ones in Michigan and Tacoma, Washington — represent a trend. Departments around the country cite terrorism to justify the grant money and the licensing of the equipment but ultimately use the devices for nonterrorism purposes. In Baltimore, stingray devices have been used, by one detective's estimate, more than 4,300 times in routine law enforcement activities in the city.<sup><a href="#cite-34">34</a></sup> A Freedom of Information Act release from the Tallahassee Police Department shows hundreds of routine uses, without a single terrorism investigation.<sup><a href="#cite-35">35</a></sup></p> <p>When government officials attempt to justify the acquisition of military-grade equipment, appeals to bizarre and outlandish threats are common, but occasionally officials are candid about their motivations. When Keene, New Hampshire, applied to the federal government for funding for a BearCat tactical vehicle by citing a terrorist threat to the annual town pumpkin festival, one city council member allowed:</p> </div> , <blockquote class="blockquote"> <div> <p>Our application talked about the danger of domestic terrorism, but that's just something you put in the grant application to get the money. What red-blooded American cop isn't going to be excited about getting a toy like this? That's what it comes down to.<sup><a href="#cite-36">36</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Terrorist attacks are simply not that common, generating few opportunities for police to deploy stingrays in terrorism investigations.<sup><a href="#cite-37">37</a></sup> Or perhaps terrorists, like drug traffickers before them, long ago concluded that cell phones were a potential surveillance liability and altered their communications. Regardless, the fact is that there is little evidence at the state or local level that stingray surveillance is being used to further the government's interest in combating terrorism.</p> <p>But even if it could be shown that stingray devices were being used by state and local law enforcement to combat terrorism, the secrecy regime could not be justified.</p> <p>Whatever tactical advantage the government gained by hiding the use and capabilities of cell-site simulators in years past has been eroded by years of compelled revelations as a result of FOIA requests and court proceedings. Even if we assume that keeping these capabilities secret at one time justified a regime of immense secrecy, the secret is out now.<sup><a href="#cite-38">38</a></sup> While it is conceivable that less sophisticated would-be terrorists are not keeping tabs on law enforcement's technological capabilities, the types of highly sophisticated terror and drug organizations about whom the FBI's nondisclosure agreement worries will have learned what they need to by now.</p> <p><strong>Federalism and Separation of Powers</strong></p> <p>When federal–state partnerships preclude executive officers of state and local agencies from informing judges, legislators, or the general public about their capabilities (or even the fact that they've partnered with the federal government in the first place), separation of powers questions arise. These questions are especially acute in jurisdictions where the stingray equipment was purchased through federal security grant programs or using funds taken from private individuals through civil asset forfeiture.<sup><a href="#cite-39">39</a></sup> In such cases, it's entirely possible that the legislature is never consulted at all, as no local appropriation is necessary. When state and local law enforcement agencies depend on federal funding for their equipment and cut their local legislatures and courts out of the process, state and local control of law enforcement is threatened.<sup><a href="#cite-40">40</a></sup></p> <p>Similarly, insofar as the FBI's nondisclosure agreement prohibits law enforcement agents and prosecutors from disclosing stingray uses or evidence to judges, or from accurately describing the devices in applications for warrants or pen/trap orders, the role of the judiciary in overseeing and ensuring constitutional compliance by law enforcement has been seriously compromised.</p> <p>Perhaps most importantly, the secrecy around these devices and the surreptitious means utilized by law enforcement to deploy them are having a deleterious effect on the criminal justice system. When judges find out that they've been misled into authorizing cell-site simulators, or when prosecutors are pressured to drop charges or dismiss evidence rather than reveal stingray use, entire criminal cases fall apart.<sup><a href="#cite-41">41</a></sup> Dangerous criminals are put back on the street or given overly favorable plea bargains by prosecutors merely to protect an increasingly ill-kept secret, and to defend a law enforcement tactic that serves as an end-around traditional due process and separation of powers barriers. The traditional institutions keeping the abuse of such tools in check have been sidelined, and actual prosecutions of criminals have been abandoned in the name of pursuing a hypothetical enemy.</p> <p>The FBI has also encouraged constitutionally dubious practices at the state and local level. In April 2016, a government watchdog organization in Oklahoma revealed an agreement between the FBI and the Oklahoma City Police Department for the acquisition of a stingray device.<sup><a href="#cite-42">42</a></sup> The FBI memo explains that, due to exigent circumstances, the use of a full nondisclosure agreement would be inappropriate and that the memo would serve in that capacity instead.</p> <p>One provision of the memo states:</p> </div> , <blockquote class="blockquote"> <div> <p>Information obtained through use of the equipment is FOR LEAD PURPOSES ONLY, and may not be used as primary evidence in any affidavits, hearings or trials. This equipment provides general location information about a cellular device, and your agency understands it is required to use additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial to corroborate information concerning the location of the target obtained through use of this equipment.<sup><a href="#cite-43">43</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>This technique, known as parallel construction, allows law enforcement to obscure evidence sources to prevent their disclosure in court.<sup><a href="#cite-44">44</a></sup> The tactic is used to protect the identities of confidential informants, but it can also be used to hide evidence from judges or defendants.</p> <p>When utilizing parallel construction, law enforcement uses some surreptitious and, perhaps, constitutionally dubious tactics to generate a piece of evidence. In order to obscure the source of that evidence, police will use the new information as a lead to gather information from which they construct a case that appears to have been cracked using routine police work. The police then represent to the court and to the defendant that the routine tactics led to the break in the case. The secret evidence or technique is not revealed.</p> <p>While legislatures and courts have been unable to provide oversight or accountability due to the secrecy of law enforcement and the federal government, the stingray-utilizing agencies themselves have in many cases done next to nothing to ensure the appropriate and constitutional use of these devices.</p> <p><strong>A Lack of Accountability</strong></p> <p>The complete lack of transparency regarding government use of stingray technology guarantees that bad actors are not being held accountable and that guidelines, where they exist at all, are not always being followed.</p> <p>The federal government does not reveal which departments own or lease the devices; which departments are actively deploying them and how often; what, if any, guidelines govern them; or what mechanisms, if any, are in place to ensure the devices are used properly. Even if guidelines were to be put in place, the lack of transparency with which these devices have been used suggests a dire need for strict and independently enforced accountability mechanisms.</p> <p>In October 2015, following several remarkable revelations regarding stingray surveillance, both the Department of Homeland Security and the Department of Justice publicly outlined their stingray policies for the first time.</p> <p>The policies include a requirement that federal law enforcement officials seek warrants for stingray use except under certain exigent circumstances, a requirement that data be disposed of routinely and when it is no longer needed for a specific investigation, and a requirement that government agencies be open with courts about the use of the technology in criminal investigations.<sup><a href="#cite-45">45</a></sup></p> <p>It is important to note, however, that while these policies represent a step toward transparency on the part of the federal government, they are merely internal administrative policies. They do not carry the force of law, and enforcement of these guidelines is left entirely up to the executive agencies deploying the devices.</p> <p>These guidelines also appear to apply only to devices being used by the federal government and have no bearing on the use of stingray devices that are in the hands of state and local police, who remain free to set up their own guidelines and accountability policies.</p> <p>Without a full accounting of the capabilities of stingray devices and public acknowledgment of their use by each law enforcement agency, any hope of imbuing the process with accountability for misuse is fleeting. A reliance on executive agency self-policing and the assurances of police agencies that they are not abusing their technology is inadequate protection in lieu of constitutional safeguards. The judicial and legislative branches, tasked by our system with checking the power of the executive branch, have important roles to play in limiting the abuses of stingray surveillance and thus far have failed to do so.</p> <p><strong>Legal Status of Warrantless Stingray Surveillance</strong></p> <p>Understanding the issues raised by warrantless stingray surveillance requires some background on the Supreme Court precedents that inform our current Fourth Amendment jurisprudence.</p> <p>In the 1967 case <em>Katz v. United States</em>, the Supreme Court ruled that a police wiretap of a phone booth was a search within the meaning of the Fourth Amendment and required a warrant because of the attempt of the defendant to keep the conversation private.<sup><a href="#cite-46">46</a></sup> Justice Harlan, in a concurring opinion, laid out his understanding of the court's ruling and included a reasonable expectation of privacy test, which has since become the standard test in Fourth Amendment privacy jurisprudence.</p> <p>Roughly a decade later, in <em>United States v. Miller</em><sup><a href="#cite-47">47</a></sup> and <em>Smith v. Maryland</em>,<sup><a href="#cite-48">48</a></sup> the Court articulated what has come to be known as the third-party doctrine. Under third-party doctrine analysis, the expectation of privacy disappears where the individual voluntarily conveys information to third parties. But <em>Miller </em>and <em>Smith </em>involved microfilms of bank deposits and a list of dialed phone numbers, respectively. In the modern context, the third-party doctrine can, as the government argues, be applied much more broadly, as almost all of the data emanating from cell phones and other Web-connected mobile devices is constantly being sent to third-party service providers. With so much of our daily activity being sent to third-party Internet and telephone service providers, the level of constitutional protection afforded to such data becomes a much more significant question than it was decades ago.</p> <p>By the early 2000s, the Supreme Court was wrestling with advances in police technology that allowed officers to peer through walls and into the privacy of the home. In 2001, the Court decided <em>Kyllo v. United States</em>, in which agents from the Department of the Interior utilized infrared heat imagers to look inside a private home in search of the hallmark heat signatures of a marijuana-growing operation. <sup><a href="#cite-49">49</a></sup> The Court ruled that using "sense-enhancing technology" to peer into private homes was a search within the meaning of the Fourth Amendment and therefore required a warrant based upon probable cause.</p> <p>A decade later, some members of the Court had begun to question the applicability of the expectation of privacy test in light of modern technology. In 2012 the Supreme Court decided <em>U.S. v. Jones</em>.<sup><a href="#cite-50">50</a></sup> Police and FBI agents, without a warrant, snuck onto Jones's property and placed a global positioning system (GPS) tracker on his car. The Court ruled that the physical trespass onto Jones's property represented a search. Perhaps the most notable aspect of the <em>Jones </em>case was the concurring opinion by Justice Sonia Sotomayor, who finally raised the specter of rethinking the expectation of privacy test and doing away with the third-party doctrine:</p> </div> , <blockquote class="blockquote"> <div> <p>More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the "tradeoff" of privacy for convenience "worthwhile," or come to accept this "diminution of privacy" as "inevitable," and perhaps not.<br /><br />I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.<sup><a href="#cite-51">51</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>While Sotomayor's analysis did not receive the support of a Court majority, it at least stands as a signal that some on the Court are ready to revisit an outdated privacy test in light of the centrality of third-party data sharing to virtually every aspect of our private lives in the 21st century.</p> <p>Chief Justice Roberts, writing for a unanimous court, made a similar observation about the centrality of cell phones to our private lives just two years later in a case called <em>Riley v. California</em>:</p> </div> , <blockquote class="blockquote"> <div> <p>These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.<sup><a href="#cite-52">52</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>Federal and state courts have not yet had much opportunity to apply these principles. That's in large part because the courts have often been competing against a stacked deck when it comes to policing cell-site simulators. Between the explicit provisions of the FBI nondisclosure agreement and federal encouragement to keep relevant information from courts, most judges have not had occasion to analyze the legal issues raised by stingray use.</p> <p>The FBI wields considerable control over whether a particular case reaches a verdict, and therefore whether it is likely to result in a clear ruling from a judge on the constitutionality of stingray use. Judges have a difficult time assessing the legality of police practices when the cases are routinely removed from court through plea bargains or dropped charges. How many criminal suspects are going to turn down a favorable plea deal just to have their Fourth Amendment rights analyzed by a judge who could send them to prison?</p> <p>Despite this pervasive secrecy regime, in several criminal cases vigilant defense attorneys who questioned how the police found their clients stumbled onto stingray investigations. What they managed to find suggests a widespread pattern of obfuscation and occasional deceit by the FBI and local law enforcement agencies to obscure their behavior from the courts and from criminal defendants.</p> <p>In one 2014 Arizona case, the City of Tucson cited both "Harris corporation's legal obligations under federal law and its contractual obligations to the Federal Bureau of Investigation regarding this technology" to attempt to avoid responding to a state freedom of information request.<sup><a href="#cite-53">53</a></sup> The city further asserted that the redactions from the freedom of information response were made at the behest of both Harris Corporation and the FBI, contradicting the FBI's statements that its nondisclosure agreement does not require such secrecy.<sup><a href="#cite-54">54</a></sup> The city did, however, acknowledge that when using its stingray devices, the Tucson police sought neither warrants nor pen register orders, meaning that the Tucson Police Department was using the technology without judicial authorization or oversight.<sup><a href="#cite-55">55</a></sup></p> <p>In a 2015 Baltimore case, a criminal defendant received a favorable plea deal after the city refused to disclose stingray material "because the Department of Justice prohibits the access and disclosure of these items." The judge threatened a detective with contempt proceedings after citing the nondisclosure agreement from the stand. "You don't have a non-disclosure agreement with the court," Judge Barry Williams told him.<sup><a href="#cite-56">56</a></sup></p> <p>The cross-examination of a police officer from another Maryland case transcript reveals the position in which judges find themselves in court.</p> </div> , <blockquote class="blockquote"> <div> <p><strong>Judge:</strong> It's a simple question. Why was he stopped? What was the, it was a warrantless arrest. Why was he stopped? That's the question she's asked. He can answer the question. Why did you stop him?<br /><br /><strong>Police Officer:</strong> This kind of goes into Homeland Security issues, Your Honor.<br /><br /><strong>Judge:</strong> Okay, if it goes into Homeland Security issues, then the phone doesn't come in. Okay. Step down, thank you. I mean this is simple. <em>You can't just stop someone and not give me a reason, State, and you know that.</em> (emphasis added)<sup><a href="#cite-57">57</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>But these revelations only arose in situations where defendants and their lawyers chose to go to trial in the first place and in trials where the defense attorney's suspicions about surreptitious police surveillance paid off. It stands to reason, then, that the vast majority of criminal cases in which stingray evidence is used, like the vast majority of criminal cases generally, are pled out before going to trial and often before defense counsel has an opportunity to raise such questions. In a country where more than 9 out of every 10 criminal defendants waive their right to trial, potentially inadmissible stingray evidence can be used to put pressure on defendants without any risk of being revealed to the court.</p> <p>In addition to stingray abuses that never make it in front of a judge, police have, sometimes under express federal guidance, willfully misled courts regarding the nature of cell-site simulator technology and the capabilities of stingray devices.<sup><a href="#cite-58">58</a></sup> Utilizing common terms of art for court orders, police will, for instance, refer to "confidential informants," or "data from telephone service providers" to justify applications for pen registers or warrants. These terms have traditional meanings in the legal system that convey none of the novelty or magnitude of stingray surveillance. Judges, in other words, are sometimes authorizing stingray devices without knowing it.<sup><a href="#cite-59">59</a></sup> This deception makes it extremely difficult for judges to function in an oversight role when it comes to stingray use.</p> <p>The problem has become so pervasive that defense attorney organizations are now offering explicit guidance to defense lawyers in order to ferret out stingray uses by police in criminal proceedings.<sup><a href="#cite-60">60</a></sup></p> <p>The consequence of the secrecy, especially the dropping of evidence or entire cases when called out on questionable stingray use, is a general dearth of case law on the constitutional issues that stingrays present. As more has been revealed and the breadth of stingray use has become more widely known, it is fair to anticipate that the amount of judicial analysis will increase.</p> <p>A few courts have been able to weigh in on the constitutional implications of warrantless stingray use already. In 2013 a federal district court in Arizona upheld the use of a stingray device in a tax fraud prosecution against a defendant on the grounds that the police were sufficiently descriptive in their warrant application to satisfy Fourth Amendment requirements.<sup><a href="#cite-61">61</a></sup> Another federal district court, this time in Maryland, found that stingrays relied only on information that had been voluntarily conveyed to third parties and thus did not constitute a search within the meaning of the Fourth Amendment.<sup><a href="#cite-62">62</a></sup></p> <p>At least one state-level appellate court has disagreed with those federal rulings. In an opinion released in March 2016, the Court of Special Appeals of Maryland held that using a stingray to locate a phone inside a home constitutes a search within the meaning of the Fourth Amendment and requires a warrant.<sup><a href="#cite-63">63</a></sup></p> <p>In that case, defendant Kerron Andrews was suspected of shooting three people. Police sought and received a court order to use a pen/trap device to surveil Andrews' phone. The police, however, actually deployed a cell-site simulator — in this case a newer-generation device with the trade name HailStorm — in order to track the physical location of Andrews' phone in real time. The police were able to track Andrews to a specific home in Baltimore.</p> <p>Citing <em>Kyllo</em>, the court held that the use of a cell-site simulator to track a person's location inside a home violates a person's reasonable expectation of privacy. The court also held that the data being beamed from a person's phone to a cell tower is not being "voluntarily conveyed," thus the third-party doctrine is inapplicable and the data retains its constitutional protection.</p> <p>The court also found that police had misled the judge by requesting a pen/trap order without explaining the full capabilities of the device. Insofar as the FBI's nondisclosure agreement contributed to that decision by law enforcement, the court questioned the constitutionality of the agreement itself.</p> </div> , <blockquote class="blockquote"> <div> <p>We perceive the State's actions in this case to protect the Hailstorm technology, driven by a nondisclosure agreement to which it bound itself, as detrimental to its position and inimical to the constitutional principles we revere.<sup><a href="#cite-64">64</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>The few instances of courts assessing the legality of stingray use have come to different conclusions, citing different precedents, and it could be years before these splits in Fourth Amendment interpretations are resolved.</p> <p>Even if courts are not ready to do away with the third-party doctrine entirely, the <em>Kyllo</em> precedent represents an interesting potential conflict with the third-party line of reasoning in cell phone tracking cases. Indeed, stingrays do collect data from cell phone users, but ostensibly the primary use of that data is to triangulate the precise location of the phone rather than to analyze the content of the data itself. This tracking capability inevitably includes the inside of homes and other areas traditionally considered beyond the reach of warrantless searches. Any location capable of receiving a cell tower signal is fair game to the stingray and indistinguishable from public areas with little to no expectation of privacy.</p> <p>Stingray surveillance, then, represents a potential flashpoint between two previously disparate Fourth Amendment doctrines. As the primary purpose of the devices is to track locations through a technique that is obviously not within the traditional sensory suite of a human police officer, it is possible that the Supreme Court would find that the "sense-enhancing technology" precedent of <em>Kyllo</em> is the more appropriate analytical framework than the third-party doctrine, even if Justice Sotomayor stands alone in her desire to revisit the third-party doctrine itself.</p> <p><strong>Remedies for Warrantless Stingray Surveillance</strong></p> <p>If judges do take on a more active role in stingray oversight, that by itself may still be insufficient to protect the rights of individuals. Suppression of evidence gained in violation of a person's Fourth Amendment rights is not guaranteed to deter police misconduct, and courts have been hesitant to take more punitive measures against the state or its agents when they fail the existing Fourth Amendment tests.</p> <p>Legislators have an obligation to protect their citizens' privacy, and, as Justice Alito pointed out in his concurrence in <em>Riley</em>, they don't need to wait for the courts to do that job for them:</p> </div> , <blockquote class="blockquote"> <div> <p>Many forms of modern technology are making it easier and easier for both government and private entities to amass a wealth of information about the lives of ordinary Americans, and at the same time, many ordinary Americans are choosing to make public much information that was seldom revealed to outsiders just a few decades ago.<br /><br />In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.<sup><a href="#cite-65">65</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="text-default"> <p>The courts establish a floor that privacy protections cannot fall below, but legislators are free to raise that floor on their own initiative, and there has been some progress on that front.</p> <p>At the federal level, Rep. Jason Chaffetz (R-UT) has introduced a bill that would make the use of a stingray without a warrant a criminal offence, except in some limited exigent circumstances. The Stingray Protection Act goes well beyond merely suppressing tainted evidence. It would impose criminal liability, up to 10 years' imprisonment, for anyone who improperly deploys a stingray device.<sup><a href="#cite-66">66</a></sup> The bill has an arduous path to becoming law, but clearly demonstrates that years of press and court revelations have put stingray abuse squarely on the agenda of some legislators.</p> <p>Additionally, several states have taken steps to curb warrantless stingray use. The California state legislature recently passed a bill imposing a warrant requirement on state and local stingray use in California,<sup><a href="#cite-67">67</a></sup> while states such as New York and Missouri are considering similar legislation.<sup><a href="#cite-68">68</a></sup></p> <p>These efforts affirm the traditional constitutional responsibility of state governments for law enforcement. State legislatures have the power to correct many of the problems raised by secretive stingray use, whether through forbidding state and local law enforcement to participate in federal militarization or transfer programs or imposing strict requirements on the use of surveillance devices.</p> <p><strong>Conclusion</strong></p> <p>Technological advancements in law enforcement are inevitable. The government's ability to surreptitiously monitor the private communications of Americans will develop as quickly as the means of communications themselves. In that sense, it is likely a fool's errand to argue for an outright ban on police use of cell-simulator technology. It's possible to imagine a legitimate role for this technology in law enforcement's arsenal. But the efforts at secrecy, the lack of accountability, and the twisted incentives created by federal meddling in state and local law enforcement beg for reform.</p> <p>At the executive level, federal and state agencies should be forthright and transparent in their possession and use of stingray surveillance devices, both with the relevant courts and the general public. Even if one accepts the argument that extreme secrecy produced an advantage for law enforcement over terrorists and drug cartels, that advantage has long since evaporated as criminal syndicates have altered their methods and the veil of secrecy has been stripped from the technology.</p> <p>The FBI should disavow any suggestion that hiding evidence from judges or defendants is a condition of stingray acquisition. It should also cease pressuring prosecutors to drop cases in order to protect the existence and capabilities of cell-site simulators.</p> <p>At the judicial level, Fourth Amendment jurisprudence governing the privacy protections of cell phone data is in desperate need of Supreme Court analysis. Lower courts seem confused about which analytical framework to apply to stingray cases and how the technology should be assessed within those frameworks. Courts at all levels should reject state secrecy arguments that deny judges and defense teams access to information about stingray capabilities and usage.</p> <p>State legislative bodies should be wary of federal encroachment into a role traditionally occupied by state and local governments. The use of federal security grants to equip state and local law enforcement, the use of federal nondisclosure agreements to hide the behavior of state and local agents from judicial and legislative oversight, and the inevitable twisting of law enforcement priorities that accompanies such incentive programs are all reasons for caution in allowing agencies to participate in these federal programs. Legislatures should require law enforcement agencies to publish stingray policies that detail the circumstances under which stingray use is authorized, to publish data retention guidelines, and to resolve to seek a warrant or a probable cause analogue before deploying stingrays.</p> <p>Stingray surveillance raises many novel political and legal issues, yet cell phone trackers are only the vanguard. Police technology will continue to become more expansive and powerful, and the longer it takes legislatures and courts to produce a legal framework capable of keeping up with technology and ensuring that constitutional rights are protected, the more threatening the surveillance state will become.</p> <p><strong>Notes:</strong></p> <p id="cite-1">1. The gun turned out to be a BB gun, but for purposes of armed robbery statutes it is treated as a firearm.</p> <p id="cite-2">2. Ellen Nakashima, "Secrecy around Police Surveillance Equipment Proves a Case's Undoing," <em>Washington Post</em>, February 22, 2015, <code class="uri"><a class="uri" href="" target="_top">https://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html</a></code>.</p> <p id="cite-3">3. The term "stingray" is often used as an umbrella term to refer to an entire family of cell phone surveillance devices that may go by other trade names, such as "KingFish," "HailStorm," or "Loggerhead."</p> <p id="cite-4">4. American Civil Liberties Union, "Stingray Tracking Devices: Who's Got Them?" ACLU.org., <code class="uri"><a class="uri" href="" target="_top">https://www.aclu.org/map/stingray-tracking-devices-whos-got-them</a></code>.</p> <p id="cite-5">5. American Civil Liberties Union, "War Comes Home: The Excessive Militarization of American Policing," ACLU.org, June 2014, <code class="uri"><a class="uri" href="" target="_top">https://www.aclu.org/sites/default/files/assets/jus14-warcomeshome-report-web-rel1.pdf</a></code>, p. 26.</p> <p id="cite-6">6. Kim Zetter, "U.S. Marshals Seize Cops' Spying Records to Keep Them from the ACLU," <em>Wired</em>, June 3, 2014, <code class="uri"><a class="uri" href="" target="_top">https://www.wired.com/2014/06/feds-seize-stingray-documents/</a></code>.</p> <p id="cite-7">7. Kim Zetter, "Emails Show Feds Asking Florida Cops to Deceive Judges," <em>Wired</em>, June 19, 2014, <code class="uri"><a class="uri" href="" target="_top">https://www.wired.com/2014/06/feds-told-cops-to-deceive-courts-about-stingray/</a></code>.</p> <p id="cite-8">8. U.S. Const. amend. IV.</p> <p id="cite-9">9. See <em>Katz v. United States</em>, 389 U.S. 347 (1967).</p> <p id="cite-10">10. See <em>Smith v. Maryland</em>, 442 U.S. 735 (1979).</p> <p id="cite-11">11. 18 U.S.C. 3123 describes the relevant legal standards for use of pen registers or trap and trace devices.</p> <p id="cite-12">12. For more detail on the technical capabilities of Stingray devices, see Stephanie K. Pell and Christopher Soghoian, "Your Secret Stingray's No Secret Anymore: The Vanishing Government Monopoly over Cell Phone Surveillance and Its Impact on National Security and Consumer Privacy," <em>Harvard Journal of Law &amp; Technology</em> 28, no. 1 (Fall 2014): 8–19; see also, Sam Biddle, "Long-Secret Stingray Manuals Detail How Police Can Spy on Phones," <em>The Intercept</em>, September 12, 2016, <code class="uri"><a class="uri" href="" target="_top">https://theintercept.com/2016/09/12/long-secret-stingray-manuals-detail-how-police-can-spy-on-phones/</a></code>.</p> <p id="cite-13">13. For instance, if law enforcement is using the stingray to monitor a demonstration in which no individual is suspected of any wrongdoing sufficient to justify a pen register, a stingray would allow law enforcement to learn the identity and phone information of the attendees, which could be used to facilitate further surveillance.</p> <p id="cite-14">14. <em>United States v. Rigmaiden</em>, 844 F. Supp.2d 982, 996 (D. Ariz. 2012).</p> <p id="cite-15">15. Department of Justice Electronic Surveillance Manual (Jan. 2, 2008), p. 17.</p> <p id="cite-16">16. "Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology," United States Department of Justice, Office of Public Affairs, <code class="uri"><a class="uri" href="" target="_top">http://www.justice.gov/opa/file/767321/download</a></code>.</p> <p id="cite-17">17. Including the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Department of Homeland Security (DHS); the Federal Bureau of Investigation (FBI); and the U.S. Marshals Service, but excluding agencies under the Department of Homeland Security, such as the U.S. Immigration and Customs Enforcement (ICE), the U.S. Secret Service, and the Transportation Security Administration (TSA).</p> <p id="cite-18">18. FBI response to Freedom of Information request by Electronic Privacy Information Center, February 2013, <code class="uri"><a class="uri" href="" target="_top">https://epic.org/foia/fbi/stingray/FBI-FOIA-Release-02072013-OCR.pdf</a></code>.</p> <p id="cite-19">19. Nicky Woolf and William Green, "IRS Possessed Stingray Cellphone Surveillance Gear, Documents Reveal," <em>Guardian</em> (London), October 26, 2015, <code class="uri"><a class="uri" href="" target="_top">http://www.theguardian.com/world/2015/oct/26/stingray-surveillance-technology-irs-cellphone-tower</a></code>.</p> <p id="cite-20">20. American Civil Liberties Union, "Stingray Tracking Devices: Who's Got Them?"</p> <p id="cite-21">21. Nathan Freed Wessler, "Documents Suggest Maker of Controversial Surveillance Tool Misled the FCC," American Civil Liberties Union, September 17, 2014, <code class="uri"><a class="uri" href="" target="_top">https://www.aclu.org/blog/documents-suggest-maker-controversial-surveillance-tool-misled-fcc?redirect=blog/national-security/documents-suggest-maker-controversial-surveillance-tool-misled-fcc</a></code>.</p> <p id="cite-22">22. Federal Communications Commission, "Grant of Equipment Authorization to Harris Corporation," March 2, 2012. "(1) The marketing and sale of these devices shall be limited to federal, state, local public safety and law enforcement officials only; and (2) State and local law enforcement agencies must advance coordinate with the FBI the acquisition and use of the equipment authorized under this authorization."</p> <p id="cite-23">23. A point of clarity: in the New York court system, a supreme court is not the highest court. That distinction belongs to the New York State Court of Appeals.</p> <p id="cite-24">24. <em>New York Civil Liberties Union v. Erie County Sheriff's Office</em>, State of New York Supreme Court, Index No. 2014/000206, March 17, 2015, <code class="uri"><a class="uri" href="http://www.nyclu.org/files/releases/ErieCoStingrayWin_3.17.15.pdf" target="_top"> http://www.nyclu.org/files/releases/ErieCoStingrayWin_3.17.15.pdf</a></code>.</p> <p id="cite-25">25. Agreement between FBI and Scott R. Patronik, Chief of Erie County Sheriff's Office, June 29, 2012, <code class="uri"><a class="uri" href="http://nyclu.org/files/20120629-renondisclsure-obligations(Harris-ECSO).pdf" target="_top"> http://nyclu.org/files/20120629-renondisclsure-obligations(Harris-ECSO).pdf</a></code>.</p> <p id="cite-26">26. Ibid.</p> <p id="cite-27">27. Ellen Nakashima, "FBI Clarifies Rules on Secretive Cellphone-Tracking Devices," <em>Washington Post</em>, May 14, 2015, <code class="uri"><a class="uri" href="https://www.washingtonpost.com/world/national-security/fbi-clarifies-rules-on-secretive-cellphone-tracking-devices/2015/05/14/655b4696-f914-11e4-a13c-193b1241d51a_story.html" target="_top">https://www.washingtonpost.com/world/national-security/fbi-clarifies-rules-on-secretive-cellphone-tracking-devices/2015/05/14/655b4696-f914-11e4-a13c-193b1241d51a_story.html</a></code>.</p> <p id="cite-28">28. FCC letter to Phil Mocek of MuckRock News, October 2, 2014, <code class="uri"><a class="uri" href="https://www.muckrock.com/news/archives/2014/oct/08/fcc-fbi-cant-agree-stingray-nda/" target="_top">https://www.muckrock.com/news/archives/2014/oct/08/fcc-fbi-cant-agree-stingray-nda/</a></code>. "We do not require that state and local law enforcement agencies have to complete one or more non-disclosure agreements with the Federal Bureau of Investigation prior to acquisition and/or use of the authorized equipment."</p> <p id="cite-29">29. See Testimony of Elana Tyrangiel, Principal Deputy Assistant Attorney General at the Department of Justice and Seth M. Stodder of the Department of Homeland Security before House Subcommittee on Interior, October 21, 2015.</p> <p id="cite-30">30. The concern is explicitly mentioned in the nondisclosure agreement itself, which states that disclosure would empower surveillance targets to "employ countermeasures to avoid detection." Supra, note 24.</p> <p id="cite-31">31. The efficacy of programs such as the Urban Areas Security Initiative (UASI) has been called into question by efficiency hawks such as former Senator Tom Coburn (R-OK), who paints a damning portrait of the program's waste. See Tom Coburn, "Safety at Any Price: Assessing the Impact of Homeland Security Spending in U.S. Cities," December 2012, <code class="uri"><a class="uri" href="https://info.publicintelligence.net/SenatorCoburn-UASI.pdf" target="_top"> https://info.publicintelligence.net/SenatorCoburn-UASI.pdf</a></code>.</p> <p id="cite-32">32. Nathan Freed Wessler, "Police Citing ‘Terrorism' to Buy Stingrays Used Only for Ordinary Crimes," American Civil Liberties Union, October 23, 2015, <code class="uri"><a class="uri" href="https://www.aclu.org/blog/free-future/police-citing-terrorism-buy-stingrays-used-only-ordinary-crimes" target="_top">https://www.aclu.org/blog/free-future/police-citing-terrorism-buy-stingrays-used-only-ordinary-crimes</a></code>.</p> <p id="cite-33">33. Privacy SOS, "Police Are Using a Powerful Surveillance Tool to Fight the War on Drugs, Not Terrorism," October 15, 2014, <code class="uri"><a class="uri" href="" target="_top">https://privacysos.org/node/1554</a></code>.</p> <p id="cite-34">34. Justin Fenton, "Baltimore Police Used Secret Technology to Track Cellphones in Thousands of Cases," <em>Baltimore Sun</em>, April 9, 2015, <code class="uri"><a class="uri" href="" target="_top">http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-stingray-case-20150408-story.html</a></code>.</p> <p id="cite-35">35. See the master list of stingray deployments by the Tallahassee Police Department, March 27, 2014, <em>Fusion</em>, <code class="uri"><a class="uri" href="" target="_top">https://fusiondotnet.files.wordpress.com/2015/02/03.27.2014_-_master_ce_log.pdf</a></code>.</p> <p id="cite-36">36. American Civil Liberties Union, "War Comes Home: The Excessive Militarization of American Policing," ACLU, June 2014, <code class="uri"><a class="uri" href="" target="_top">https://www.aclu.org/report/war-comes-home-excessive-militarization-american-police</a></code>, p. 26.</p> <p id="cite-37">37. See John Mueller, "Is There Still a Terrorist Threat? The Myth of the Omnipresent Enemy," <em>Foreign Affairs</em>, September/October 2006, <code class="uri"><a class="uri" href="" target="_top">https://www.foreignaffairs.com/articles/2006-09-01/there-still-terrorist-threat-myth-omnipresent-enemy</a></code>.</p> <p id="cite-38">38. See Pell and Soghoian, "Your Secret Stingray's No Secret Anymore."</p> <p id="cite-39">39. Joel Handley et al., "Inside the Chicago Police Department's Secret Budget," <em>Chicago Reader</em>, September 29, 2016, <code class="uri"><a class="uri" href="" target="_top">http://www.chicagoreader.com/chicago/police-department-civil-forfeiture-investigation/Content?oid=23728922</a></code>.</p> <p id="cite-40">40. Even when the funding sources are local, as in the case of civil forfeiture funds, the agencies still must coordinate their acquisition and use of stingray equipment with the federal government.</p> <p id="cite-41">41. Robert Patrick, "Controversial Secret Phone Tracker Figured in Dropped St. Louis Case," <em>St. Louis Post-Dispatch</em>, April 19, 2015, <code class="uri"><a class="uri" href="" target="_top">http://www.stltoday.com/news/local/crime-and-courts/controversial-secret-phone-tracker-figured-in-dropped-st-louis-case/article_fbb82630-aa7f-5200-b221-a7f90252b2d0.html</a></code>; Ellen Nakashima, "Secrecy around Police Surveillance Equipment Proves a Case's Undoing," <em>Washington Post</em>, February 22, 2015, <code class="uri"><a class="uri" href="" target="_top">https://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html</a></code>; and Justin Fenton, "Baltimore Police Used Secret Technology to Track Cellphones in Thousands of Cases," <em>Baltimore Sun</em>, April 9, 2015, <code class="uri"><a class="uri" href="" target="_top">http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-stingray-case-20150408-story.html</a></code>.</p> <p id="cite-42">42. Clifton Adcock, "Okla. Authorities Have or Use Controversial Cellphone Tracker," Oklahoma Watch, April 10, 2016, <code class="uri"><a class="uri" href="" target="_top">http://oklahomawatch.org/2016/04/10/okla-authorities-have-or-use-controversial-cell-phone-tracker/.</a></code></p> <p id="cite-43">43. "Approved Non-Disclosure Notice," from the FBI to the Oklahoma City Police Department, August 7, 2014, <code class="uri"><a class="uri" href="" target="_top">https://assets.documentcloud.org/documents/2825761/OKCPDFBI-MOU.pdf</a></code>.</p> <p id="cite-44">44. Or, less charitably, "evidence laundering." In an email response to the revelations, ACLU Staff Attorney Nathan Wessler stated: "This is the first time I have seen language this explicit in an FBI non-disclosure agreement. The typical non-disclosure agreements order local police to hide information from courts and defense attorneys, which is bad enough, but this goes the outrageous extra step of ordering police to actually engage in evidence laundering. Instead of just hiding the surveillance, the FBI is mandating manufacture of a whole new chain of evidence to throw defense attorneys and judges off the scent. As a result, defendants are denied their right to challenge potentially unconstitutional surveillance and courts are deprived of an opportunity to curb law enforcement abuses." See Jenna McLaughlin, "<code class="uri"><a class="uri" href="" target="_top">FBI Told Cops to Recreate Evidence from Secret Cell-Phone Trackers</a></code>," <em>The Intercept</em>, May 5, 2016, <code class="uri"><a class="uri" href="" target="_top">https://theintercept.com/2016/05/05/fbi-told-cops-to-recreate-evidence-from-secret-cell-phone-trackers/</a></code>.</p> <p id="cite-45">45. See Testimony of Seth M. Stodder, Assistant Secretary, Threat Prevention and Security Policy, Office of Policy, U.S. Department of Homeland Security, testifying before the Committee on Oversight and Government Reform, Subcommittee on Information Technology, October 21, 2015. See also Testimony of Elana Tyrangiel, Principal Deputy Assistant Attorney General Before the Subcommittee on Information Technology, Committee on Oversight and Government Reform, U. S. House of Representatives, October 21, 2015.</p> <p id="cite-46">46. <em>Katz v. United States, </em>389 U.S. 347 (1967).</p> <p id="cite-47">47. <em>United States v. Miller, </em>425 U.S. 435 (1976).</p> <p id="cite-48">48. <em>Smith v. Maryland, </em>442 U.S. 735 (1979).</p> <p id="cite-49">49. <em>Kyllo v. United States, </em>533 U.S. 27 (2001).</p> <p id="cite-50">50. <em>United States v. Jones, </em>132 S. Ct. 945 (2012).</p> <p id="cite-51">51. <em>United States v. Jones, </em>132 S. Ct. 945 (2012).</p> <p id="cite-52">52. <em>Riley v. California</em>, 573 U.S. ___ (2014) at 8.</p> <p id="cite-53">53. <em>Hodai v.</em> <em>The City of Tucson</em>, Superior Court of the State of Arizona, No. C20141225, City's verified answer, p. 2, par. 10.</p> <p id="cite-54">54. Ibid., p. 4.</p> <p id="cite-55">55. Ibid., p. 5.</p> <p id="cite-56">56. Justin Fenton, "Legal Challenge Alleges Authorities Withheld Police Use of Stingray Surveillance," <em>Baltimore Sun</em>, September 4, 2015, <code class="uri"><a class="uri" href="" target="_top">http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-stingray-challenge-20150904-story.html</a></code>/.</p> <p id="cite-57">57. C. Justin Brown and Kasha M. Lee, "StingRay Devices Usher in a New Fourth Amendment Battleground," <em>The Champion</em>, National Association of Criminal Defense Lawyers, June 2015, p. 13.</p> <p id="cite-58">58. Kim Zetter, "Emails Show Feds Asking Florida Cops to Deceive Judges."</p> <p id="cite-59">59. As former U.S. Magistrate Judge Brian Owsley explains, pen/trap applications using such vague terminology can deceive judges into believing they are authorizing traditional pen registers or trap and trace devices, when in fact law enforcement plans to use the authorization to deploy much more invasive cell-site simulators. See Larry Greenemeier, "What Is the Big Secret Surrounding Stingray Surveillance?" <em>Scientific American</em>, June 25, 2015, <code class="uri"><a class="uri" href="" target="_top">http://www.scientificamerican.com/article/what-is-the-big-secret-surrounding-stingray-surveillance/</a></code>.</p> <p id="cite-60">60. Brown and Lee, "StingRay Devices Usher in a New Fourth Amendment Battleground," pp. 12–20.</p> <p id="cite-61">61. <em>United States v. Rigmaiden</em>, 844 F. Supp. 2d 982 (D. Arizona 2012).</p> <p id="cite-62">62. <em>United States v. Graham</em>, 846 F. Supp. 4d 284 (D. Md. 2012).</p> <p id="cite-63">63. <em>State of Maryland v. Andrews</em> (2015). Court of Special Appeals of Maryland, No. 1496, Sept. Term 2015. Filed March 30, 2016.</p> <p id="cite-64">64. Ibid., at p. 25.</p> <p id="cite-65">65. <em>Riley v. California</em>, 573 U.S. ___ (2014) at concurrence p. 6.</p> <p id="cite-66">66. Nicky Woolf, "Congressman Introduces Bill to End Warrantless Stingray Surveillance," <em>Guardian</em> (London), Nov. 4, 2015, <code class="uri"><a class="uri" href="" target="_top">http://www.theguardian.com/world/2015/nov/04/house-bill-end-warrantless-stingray-surveillance-jason-chaffetz</a></code>.</p> <p id="cite-67">67. Cyrus Farivar, ""California Cops, Want to Use a Stingray? Get a Warrant, Governor Says," <em>Ars</em> <em>Technica</em>, Oct. 8, 2015, <code class="uri"><a class="uri" href="" target="_top">http://arstechnica.com/tech-policy/2015/10/california-governor-signs-new-law-mandating-warrant-for-stingray-use/</a></code>.</p> <p id="cite-68">68. Mike Maharrey, "Missouri Bill Would Ban Warrantless Use of Stingray Devices, Hinder Federal Surveillance Program," Tenth Amendment Center, December 18, 2015, <code class="uri"><a class="uri" href="" target="_top">http://blog.tenthamendmentcenter.com/2015/12/missouri-bill-would-ban-warrantless-use-of-stingray-devices-hinder-federal-surveillance-program/</a></code>.</p> </div> Wed, 25 Jan 2017 12:00:00 -0500 Adam Bates https://www.cato.org/publications/policy-analysis/stingray-new-frontier-police-surveillance Peter King Wants Nationwide Surveillance of Muslim Americans https://www.cato.org/blog/peter-king-wants-donald-trump-revive-failed-muslim-surveillance-program Adam Bates <p>Rep. Peter King (R-NY), fresh out of a meeting at Trump Tower yesterday, said he pressured President-elect Donald Trump to implement a nationwide surveillance program directed at Muslim Americans "<a href="https://twitter.com/epngo/status/809484162117828609">similar to what</a>" existed in the New York Police Department's Demographics Unit under Commissioner Ray Kelly.&#13;<br /> &#13;<br /> Rep. King insisted that the NYPD program “which unfortunately the civil liberties union and The New York Times didn’t like ... [was] very effective in stopping terrorism and really should be a model for the country.”&#13;<br /> &#13;<br /> There is little evidence that the program "stopped terrorism," and Rep. King did not provide any revelations. The evidence we do have (much of it from agents themselves) points in the opposite direction. In more than a decade of pervasive surveillance, the program simply didn't work.</p> <p>I wrote about that NYPD program <a href="https://www.cato.org/publications/commentary/nypd-spied-muslim-communities-11-years-never-found-single-lead">back in March</a>, when Sen. Ted Cruz (R-TX) made a similar suggestion following a terrorist attack in Brussels.&#13;<br /> &#13;</p> <blockquote><p> [T]he police infiltrated mosques, set up surveillance cameras around Muslim-owned businesses and residences, went undercover to monitor everyday conversations, and even infiltrated student groups at schools as far away as Yale and the University of Pennsylvania in order to monitor what students talked about, who they spoke to, and how often they prayed.&#13;<br /> &#13;<br /> The end result of years of Demographic Unit surveillance on American Muslims was… nothing.&#13;<br /> &#13;<br /> No convictions, no prosecutions, and, according to Assistant Chief Thomas Galati, not even <a href="http://www.ap.org/Content/AP-In-The-News/2012/NYPD-Muslim-spying-led-to-no-leads-terror-cases" target="_blank">a single legitimate lead</a>.</p> </blockquote> <p>Instead of policing murders and rapes in New York City, agents were busy with things like <a href="http://gothamist.com/2012/02/18/nypd_spied_on_muslims_at_yale_sent.php">whitewater rafting trips</a> to upstate New York, where an officer who infiltrated a Muslim student organization took detailed notes of how many times the students prayed and who they talked to.  &#13;<br /> &#13;<br /> While the program failed to generate actionable intelligence about terrorists, it did produce millions of dollars worth of <a href="http://www.wsj.com/articles/nypd-settles-muslim-surveillance-lawsuit-1452187209">costly litigation</a> over the dubious constitutionality of suspicionless spying against religious communities.&#13;<br /> &#13;<br /> Aside from the inefficacy of the program, it remains unclear how Rep. King expects the president to implement such a program nationwide. Given manpower limitations on federal law enforcement, the most likely avenue for nationwide implementation would be the expansion of federal law enforcement grants, such as the Urban Areas Security Initiative, in order to entice state and local law enforcement agencies to construct surveillance efforts similar to the NYPD program.&#13;<br /> &#13;<br /> UASI grants, which are ostensibly intended to keep Americans safe from terrorists, have been used by state and local police to procure military-grade vehicles, weapons and surveillance technology without going through their local appropriations processes.  Aside from outfitting local police forces like paramilitary units, there is little evidence that such grants have made Americans safer.  In December of 2012, then-Senator Tom Coburn (R-OK) released a <a href="https://publicintelligence.net/coburn-uasi-waste-report/">damning report</a> on the UASI program, arguing that billions of dollars in federal grants had not made American law enforcement any better at protecting against or reacting to terrorist attacks.&#13;<br /> &#13;<br /> In the sense that terrorism grant programs have already wasted billions of tax dollars and police man-hours while distorting local law enforcement priorities, Rep. King's surveillance program is a perfect fit. But if we want our federal, state, and local law enforcement agents spending their time policing actual crimes rather than counting how many times young Muslims pray while whitewater rafting, New York's failed surveillance program should be left in the past.  The <a href="https://www.nytimes.com/2014/04/16/nyregion/police-unit-that-spied-on-muslims-is-disbanded.html">NYPD itself</a> agrees.&#13;<br /> &#13;<br />  &#13;<br /> &#13;<br /> For more on domestic surveillance in the War on Terror:&#13;<br /> &#13;<br /> This week Cato hosted our annual Surveillance Conference.  My colleague Patrick Eddington moderated a panel on "countering violent extremism," which is a government program designed to give officials advanced warning of the alleged radicalization process of young Muslims.  The panel included remarks from Maya Berry of the Arab American Institute, Sharia Mayfield of the Oregon Department of Justice (whose father Brandon was falsely accused by the FBI of taking part in the Madrid train bombings), Arjun Singh Sethi of the Sikh Coalition, Mike German of the Brennan Center for Justice's Liberty and National Security Program, and Luther Reynolds of the Montgomery Co. Police Department. &#13;<br /> &#13;<br />  &#13;<br /> &#13;</p> <div class="responsive-embed"></div><p> </p> <p></p> Fri, 16 Dec 2016 11:28:00 -0500 Adam Bates https://www.cato.org/blog/peter-king-wants-donald-trump-revive-failed-muslim-surveillance-program The State of American Criminal Justice - PANEL 1: The Human Toll of Incarceration https://www.cato.org/multimedia/events/state-american-criminal-justice-panel-1-human-toll-incarceration Kevin Ring, Marc Mauer, Keeda Haynes, Adam Bates <p>After another year of protests and unrest across the country, criminal justice reform remains a contentious issue. Some cities have experienced an increase in homicide rates, police departments are under intense scrutiny for their handling of police shootings, and prisoners are protesting living conditions. Meanwhile, policymakers are making scant progress to roll back mass incarceration.</p> <p>Given the decentralized nature of the American criminal justice system, with some 18,000 law enforcement agencies spread across 50 state jurisdictions, which reforms are the most urgent, and what can we realistically expect to accomplish in the near term? To help answer these questions, the Cato Institute will host a conference to address the most pressing issues. <strong>The State of American Criminal Justice</strong> brings together experts from courtrooms, universities, prisons, and police departments to examine the myriad policies and incentives that drive the criminal justice system at its various stages—seeking insights, strategies, and solutions. Join us for a discussion on some of the most urgent criminal justice questions facing policymakers today at all levels of government.</p> Wed, 07 Dec 2016 10:15:00 -0500 Kevin Ring, Marc Mauer, Keeda Haynes, Adam Bates https://www.cato.org/multimedia/events/state-american-criminal-justice-panel-1-human-toll-incarceration