police

Surveillance Tech Still a Concern After Carpenter

Last week the Supreme Court issued its ruling in Carpenter v. United States, with a five-member majority holding that the government’s collection of at least seven days-worth of cell site location information (CSLI) is a Fourth Amendment search. The American Civil Liberties Union’s Nathan Wessler and the rest of Carpenter’s team deserve congratulations; the ruling is a win for privacy advocates and reins in a widely used surveillance method. But while the ruling is welcome it remains narrow, leaving law enforcement with many tools that can be used to uncover intimate details about people’s private lives without a warrant, including persistent aerial surveillance, license plate readers, and facial recognition.

Background 

Timothy Carpenter and others were involved in a string of armed robberies of cell phone stores in Michigan and Ohio in 2010 and 2011. Police arrested four suspects in 2011. One of these suspects identified 15 accomplices and handed over some of their cell phone numbers to the Federal Bureau of Investigation. Carpenter was one of these accomplices.

Prosecutors sought Carpenter’s cell phone records pursuant to the Stored Communications Act. They did not need to demonstrate probable cause (the standard required for a search warrant). Rather, they merely had to demonstrate to judges that they had “specific and articulable facts showing that there are reasonable grounds to believe” that the data they sough were “relevant and material to an ongoing criminal investigation.”

Carpenter’s two wireless carriers, MetroPCS and Sprint, complied with the judges’ orders, producing 12,898 location points over 127 days. Using this information prosecutors were able to charge Carpenter with a number of federal offenses related to the armed robberies. 

Keep Facial Recognition Away From Body Cameras

The Chinese tech giant Alibaba recently invested $600 million in a start-up that specializes in facial and object recognition. Thanks to the investment the start-up, SenseTime, is now the world’s most valuable artificial intelligence start-up. Although such technology undoubtedly has potential when it comes to picking up your morning coffee and easing congestion at metro ticket lines, it has been making news in China because it is playing an increasingly prevalent role in that country’s growing surveillance state. While the Chinese are leaders in surveillance technology innovation, we should keep in mind that facial recognition in the U.S. also poses a unique and significant threat to privacy, and it’s a threat that is not being adequately addressed.

Facial recognition fits in the family tree of biometric investigatory technologies, which determine identity via analysis of unique biological and physical traits. Many are familiar to anyone who watches CSI shows or other fictional portrayals of law enforcement: fingerprint and DNA analysis are a couple of examples.

If law enforcement has access to your fingerprints it’s likely because you volunteered them as part of a job requirement, you’re an immigrant, they were recorded after you were arrested, or they were collected at a crime scene. About 40 percent of fingerprints in the FBI’s fingerprint database are not related to arrests or forensic investigations. The FBI’s DNA database only includes DNA related to criminal arrests or forensic investigations.

Unlike databases for fingerprints and DNA, one of the FBI’s facial recognition services allows agents to search through databases that mostly include information related to law-abiding Americans, with only 8 percent of the facial images in the network being associated with criminal or forensic investigations. This is in part thanks to the fact that the FBI has access to drivers license photos from at least 16 states as well as passport photos from the State Department. All told, this Facial Analysis Comparison and Evaluation services allows the FBI to access more than 411 million facial images. A Georgetown study on facial recognition estimates that about half of American adults can be found in a law enforcement facial recognition network.

This is especially concerning because facial recognition can be used to conduct surveillance. It’s already being used for the purpose in China, and here in the U.S. the law enforcement community seems poised to spread the use of facial recognition without sufficient limitations in place.

Body Cameras Worth Deploying Despite Limited Impact

A study that examined the effects body worn cameras (BWCs) have on police officers in Washington, D.C. has been making the rounds recently. The study’s findings have reinvigorated discussions about BWCs, not least because of its counterintuitive finding that BWCs did not have a statistically significant effect on officers’ use of force or civilian complaints against the police. This finding is worth considering, but the study shouldn’t deter local officials from mandating police BWCs. Even if they don’t change police officers’ behavior, BWCs can, with the right policies in place, provide a much-needed increase in police accountability and transparency.

During the study, officers with the Metropolitan Police Department of the District of Columbia were randomly assigned BWCs. Researchers with The Lab @DC, a study team in the D.C. mayor’s office, and Yale University examined use of force incidents and complaints against police officers.

The study did not seek to measure the impact of BWCs’ other benefits such as accountability, transparency, and protection for officers, but rather narrowly measured their impact. In addition to examining how often police officers use force and are the subject of complaints, researchers also studied police discretion and the judicial outcomes related to police charges.

You might expect that officers improved their behavior when they were wearing BWCs. After all, if you know that you’re being filmed you have plenty of incentives to be on your best behavior, whether you’re an officer or a resident. And yet, the recent D.C. body camera study showed that BWCs had no statistically significant effect on officers’ behavior.

This may strike many as odd. But we shouldn’t forget the limitations that restrict researchers looking into the effects of BWCs. Researchers cannot, for instance, insist that when an officer wearing a BWC calls for backup that only officers also wearing BWCs respond. In a situation where two officers are interacting with a resident and only one of the officers is wearing a BWC there is a good chance that the BWC will influence the behavior of the officer not wearing the BWC.

LAPD Drones Threaten Privacy

Today, the Los Angeles Police Department (LAPD) civilian police commission voted to approve proposed guidelines for a one-year unmanned aerial vehicles (UAVs) pilot program. According to the LAPD’s guidelines, UAVs will not be equipped with lethal or nonlethal weapons and will only be deployed in a narrow set of circumstances. The guideline also requires officers to obtain a warrant before using a UAV “when required under the Fourth Amendment or other provision of the law.” This looks all well and good, except that the Fourth Amendment and California law provide little protection when it comes to aerial surveillance.

The Fourth Amendment protects “persons, houses, papers, and effects” from “unreasonable searches and seizures.” Many Americans could be forgiven for thinking that this constitutional provision would act as a shield against warrantless aerial surveillance. Sadly, this is not the case. California law is similarly of little help. California is not one of the states that require law enforcement to obtain a warrant before using a UAV, with Gov. Jerry Brown in 2014 vetoing a bill that would have imposed such a requirement.  

To the LAPD’s credit, routine surveillance is not included in its list of approved UAV operations. However, the LAPD has a history of using new surveillance gadgets, and it’s reasonable to be wary of UAVs being regularly used for surveillance as they become an everyday feature of police departments’ toolboxes.

Although the Supreme Court has yet to take up the issue of UAV surveillance, it did address aerial surveillance in a few cases in the 1980s. In Dow Chemical Co v. United States (1986) the Supreme Court ruled that the Environmental Protection Agency did not need an administrative warrant when it hired a commercial photographer using a mapping camera to inspect a 2,000 acre Dow Chemical plant from an aircraft.

ICE Deputizes More Cops for Immigration Enforcement

Yesterday Immigration and Customs Enforcement (ICE) announced that eighteen counties in Texas are taking part in the 287(g) program. The program allows police departments to enter into agreements with ICE, thereby permitting their officers to carry out certain federal immigration enforcement functions. The news from Texas is the latest evidence that President Trump’s campaign pledge to “expand and revitalize” 287(g) was a serious commitment, not political bluster. The expansion of 287(g) is a worrying development. The program has been widely criticized for harming police-community relationships and prompting racial profiling. It also grows the power of the federal government, which traditionally has not played a major role in state and local law enforcement.

287(g) was, until a few years ago, a program that had three models: Jail, Task Force, and a Jail/Task Force hybrid model. The Jail agreements allow participating officers to check an individual’s status in a detention facility and issue detainers. Using detainers, officers can hold individuals 48 hours longer than they usually would so that ICE can pick them up. The Task Force model allowed officers to carry out immigration enforcement in the field such as questioning and arresting people suspected of violating immigration law. At the end of 2012 the Obama administration announced that the Task Force 287(g) model would be scrapped, with ICE declaring that other programs “are a more efficient use of resources for focusing on priority cases.”

The Department of Homeland Security (DHS) Office of Inspector General (OIG) raised concerns related to 287(g) in a 2010 report, which stated:

NGOs critical of the 287(g) program have charged that ICE entered into agreements with LEAs that have checkered civil rights records, and that by doing so, ICE has increased the likelihood of racial profiling and other civil rights violations.

Claims of civil rights violations have surfaced in connection with several LEAs participating in the program. Two LEAs currently enrolled in the program were defendants in past racial profiling lawsuits that they settled by agreeing to collect extensive data on their officers’ contacts with the public during traffic stops, and adopt policies to protect the community against future racial profiling. Another jurisdiction is the subject of (1) an ongoing racial profiling lawsuit related to 287(g) program activities; (2) a lawsuit alleging physical abuse of a detained alien; and (3) a DOJ investigation into alleged discriminatory police practices, unconstitutional searches and seizures, and national origin discrimination.

The DHS OIG report was correct to point out the criticism leveled at 287(g). As I’ve noted before, the American Immigration Council found that “287(g) agreements have resulted in widespread racial profiling.” According to the ACLU of Georgia, “The 287(g) program in Cobb and Gwinnett has encouraged and served as a justification for racial profiling and civil and human rights violations by some police officers acting as immigration agents.”

Cities Notice Decline in Latino Crime Reporting Post-Trump

Sir Robert Peel

Effective policing requires that crime witnesses and victims contact the police and that citizens trust law enforcement. Without such trust and communication crimes go unsolved, criminals run free, and victims live in fear. Sadly, it looks as if the Trump administration’s immigration rhetoric could have prompted a chilling effect on Latino crime reporting. 

The father of modern policing, the British statesman Sir Robert Peel, understood how important public approval of the police is in order for police officers to effectively do their jobs. Peel founded London’s Metropolitan Police Force in 1829. The force issued new officers with copies of “General Instructions,” which included the “Peelian Principles” of effective policing.* The second Peelian principle urges officers

To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect. 

Although written for officers in London, the Peelian Principles migrated to the states, where now former New York Police Department Commissioner William J. Bratton featured them on his blog and they continue to be favorably cited by law enforcement and public safety officials.

Jeff Sessions Pulls Back on Bullying Sanctuary Cities

Throughout his presidential campaign Donald Trump pledged to defund so-called “Sanctuary Cities.” Since his election the president and his administration have had to backpedal on this commitment thanks to serious constitutional issues with such a proposal. Recent news that Attorney General Jeff Sessions has narrowed the category of funds that can be withheld from sanctuary cities as well as the definition of sanctuary jurisdictions is good news for constitutionalists and federalists who oppose the federal government bullying cities and states.

Before unpacking Sessions’ recent memo it’s worth taking a look at the Trump administration’s actions against “Sanctuary Cities,” a term that has no legal meaning but is usually used to describe cities and localities where local officials have decided not to assist with federal immigration enforcement.

On January 25, President Trump signed Executive Order 13768: Enhancing Public Safety in the Interior of the United States. Section 9 of this executive order is the “sanctuary” section and reads, in part (emphasis mine):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

There is a good argument that 8 U.S.C. 1373 is unconstitutional. 8 U.S.C. 1373 is a prohibition on a prohibition, banning local governments from preventing police departments from sending or receiving immigration status information to or from federal immigration authorities. This law potentially runs afoul of the 10th Amendment’s “anti-commandeering” doctrine, which bans the federal government from compelling local officials into enforcing federal law.

More Data, More Problems

In recent years, criminologists, law enforcement organizations, government agencies, and other criminal justice experts have been experimenting with various methods of data collection to improve American criminal justice. For example, some researchers look at recidivism—that is, how likely a person who has been incarcerated will end up back in jail or prison—to stem the tide of mass incarceration. Others have turned to “hot-spot policing” to better focus limited police resources on preventing new crimes in highly specific, high-crime areas.  Each method typically has its strengths and weaknesses, and much can be learned from new techniques.

But more data isn’t always a good thing. After a long battle with the Sun-Times, the Chicago Police Department released its “Strategic Subject List.” From the report:

“We have 1,400 individuals that drive this gun violence in this city,” police Supt. Eddie Johnson said in August, assuring the public his department was keeping tabs on the people on its closely guarded “Strategic Subject List.” “We’ve gotten very good at predicting who will be the perpetrators or victims of gun violence.”

Yet the list is far broader and more extensive than Johnson and other police officials have suggested. It includes more than 398,000 entries — encompassing everyone who has been arrested and fingerprinted in Chicago since 2013.

Nearly half of the people at the top of the list have never been arrested for illegal gun possession. About 13 percent have never been charged with any violent crime. And 20 of the 153 people deemed most at risk to be involved in violent crime, as victim or shooter, have never been arrested either for guns or violence.

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