Computers, Privacy & the Constitution

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Protests, Profits, and Parallel Construction

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-- By AhliaBethea - 16 Apr 2021 As videos continue to surface of police officers using excessive force against unarmed black and brown men (most recently Adam Toledo, Daunte Wright, and Lieutenant Caron Nazario), it is not surprising that cities around the country are, yet again, erupting with protests. It is known that law enforcement officials employ a variety of different means including the use of facial recognition software, cell-site simulators, and other technologies to interfere with such protests. Resources providing information about how one can safely exercise their First Amendment Right while living in a surveillance state are scattered across the Internet. The calls to be “ever vigilant” while protesting highlight the concerns for ones own safety and privacy, but also that of those who have previous convictions or are undocumented (https://www.wired.com/story/how-to-protest-safely-surveillance-digital-privacy/). More interestingly, however, are the stories of the ways in which law enforcement officials, from city cops to the Department of Justice are utilizing technology to maintain order while simultaneously infringing on the First and Fourth Amendment rights of American citizens. This essay seeks to explore that tension.
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-- By AhliaBethea - 19 May 2021
 
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The Surveillance State

Parallel Construction

Stingray technology creates cell-site simulators which pretend to be cell towers that can connect to an individual’s phone signal if in close enough proximity. (https://www.cbsnews.com/news/d-c-court-rules-warrant-is-required-for-stingray-cell-phone-tracking/). In turn, this allows agencies such as the FBI, ICE, and local police officers to track and identify a person’s location. Id. In 2014, activists and protesters took to social media to bring awareness to the fact that police officers in Chicago, New York, and Los Angeles appeared to be leveraging this software during protests following the murder of Eric Garner. (https://www.rt.com/usa/212915-protesters-chicago-police-stingray/). Organizations such as the National Lawyer’s Guild, are thankfully taking action against such violations of protester’s rights. In 2017, attorney Jerry Boyle filed a suit on behalf of himself and other protesters against the City of Chicago Police Department for the use of stingray technology during protests. (The case appears to still be pending in the Northern District of Illinois. Boyle v. City of Chicago, Case No. 1:17-cv-00244, Jan. 12, 2017).

In situations where Stingray is used, however, officers are not able to disclose the source of the information they obtained using the technology. Thus they employ a technique called “parallel construction,” where officers develop alternate “stories” which follow traditional procedure to describe how information was obtained after using secret surveillance programs. In one such case involving a young man in Florida, the police provide him with a plea deal instead of sentencing him in prison when the defense attorney raised concerns about how the evidence was obtained.( https://www.wired.com/story/stingray-secret-surveillance-programs/).

While these devices are being used on protesters and in other areas of police work, that is not their “advertised” purpose. Police departments who’ve spoken on the use of this technology have alleged that these techniques are critical parts of their counter-narcotics tasks forces’ operations. (https://www.wired.com/story/stingray-secret-surveillance-programs/). Yet, reports have surfaced stating that these surveillance technologies have been employed for a variety of other matters including investigations of Medicaid Fraud. Id.

Likely to no one’s surprise, the use of these devices has been found to be unconstitutional, as it violates the Fourth Amendment. (Jones v. United States, No. 15-CF-322 (Sept. 21, 2017.) While most Americans would likely agree that efficiently capturing those engaged in illegal activities should be a priority, it is not acceptable for such actions to take place in direct conflict with our laws.

The use of other large scale surveillance programs such as, Project Hemisphere, to track citizens is equally worrisome. Hemisphere is essentially a secret program that can “search trillions of call records and analyz[e] cellular data to determine where a target is located.” (https://www.thedailybeast.com/atandt-is-spying-on-americans-for-profit). What’s startling is that in many ways it appears that such programs are a direct result of the capitalist society in which we live. Technological advancements in particular are driven by a rational desire to become more efficient, profitable, calculable and predictable, therefore allowing for a maximization of profits (See George Ritzer, The “McDonaldization of Society”). In the realm of law enforcement, technology that can be leveraged to identify criminals and their associates means more effect apprehension, and in theory a “safer” society. Large corporations such as AT&T are thus incentivized to develop “innovative” technology like Hemisphere and sell it to the highest bidder. While privacy, or eroding privacy, is profitable, it is difficult to imagine a world where the Department of Justice doesn’t purchase such software, and citizens’ tax dollars aren’t being used to spy on them

Hemisphere

The use of other large scale surveillance programs such as, Project Hemisphere, to track citizens is equally worrisome. Hemisphere is essentially a secret program that can “search trillions of call records and analyz[e] cellular data to determine where a target is located.” (https://www.thedailybeast.com/atandt-is-spying-on-americans-for-profit). What’s startling is that in many ways it appears that such programs are a direct result of the capitalist society in which we live. Technological advancements in particular are driven by a rational desire to become more efficient, profitable, calculable and predictable, therefore allowing for a maximization of profits (See George Ritzer, The “McDonaldization of Society”). In the realm of law enforcement, technology that can be leveraged to identify criminals and their associates means more effect apprehension, and in theory a “safer” society. Large corporations such as AT&T are thus incentivized to develop “innovative” technology like Hemisphere and sell it to the highest bidder. While privacy, or eroding privacy, is profitable, it is difficult to imagine a world where the Department of Justice doesn’t purchase such software, and citizens’ tax dollars aren’t being used to spy on them.
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“Society wins not only when the guilty are convicted, but when criminal trials are fair.” -Brady v. Maryland, 373 U.S. 83 (1963).
 
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When news of police officers using excessive force against unarmed black and brown men surfaces there are often simultaneous stories of protests erupting around the country. Law enforcement officials employ a variety of different means to "control" such situations and maintain a sense of "law and order." However, it is unacceptable for these means to erode the rule of law. Facial recognition software, cell-site simulators, and other technologies are some examples of methods employed by law enforcement to disrupt protests, and address criminal behavior more broadly. It is a sad reality that while exercising their rights under the First Amendment, citizens may have their Fourth Amendment rights violated. These threats are even more serious for those with previous convictions or who are undocumented (https://www.wired.com/story/how-to-protest-safely-surveillance-digital-privacy/). While reports of surveillance technology being deployed against protestors is alarming, it is far more pervasive than that. Law enforcement officials, from city cops to the Department of Justice are utilizing technology to maintain order while simultaneously infringing on the First and Fourth Amendment rights of American citizens. This essay seeks to explore that tension.
 
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The verbatim repetition of a paragraph happened originally as an editing error. But its retention shows that there's been no proofreading, which is a habit lawyers need to have, like breathing.

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The Surveillance State

Parallel Construction

Parallel construction is a method of evidence collection where a law enforcement agency will illegally obtain "tips" pertaining to information or direct information to apprehend a subject, and will later construct a legal story of how they were able to achieve such a result. (https://www.washingtonpost.com/news/the-switch/wp/2013/08/05/the-nsa-is-giving-your-phone-records-to-the-dea-and-the-dea-is-covering-it-up/). One example of technology used in this processed is stingray technology. Stingray creates cell-site simulators which pretend to be cell towers that can connect to an individual’s phone signal if in close enough proximity. (https://www.cbsnews.com/news/d-c-court-rules-warrant-is-required-for-stingray-cell-phone-tracking/). In turn, this allows agencies such as the FBI, ICE, and local police officers to track and identify a person’s location. Id. In 2014, activists and protesters took to social media to bring awareness to the fact that police officers in Chicago, New York, and Los Angeles appeared to be leveraging this software during protests following the murder of Eric Garner. (https://www.rt.com/usa/212915-protesters-chicago-police-stingray/). Organizations such as the National Lawyer’s Guild, are thankfully taking action against such violations of protester’s rights. In 2017, attorney Jerry Boyle filed a suit on behalf of himself and other protesters against the City of Chicago Police Department for the use of stingray technology during protests. (The case appears to still be pending in the Northern District of Illinois. Boyle v. City of Chicago, Case No. 1:17-cv-00244, Jan. 12, 2017). In one such case involving Todrae McKenzie? in Florida, when the defense attorney raised concerns about how the evidence was obtained the police opted to provide the young man with a plea deal instead of sentencing him to prison.( https://www.wired.com/story/stingray-secret-surveillance-programs/).
 
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While these devices are being used on protesters and in other areas of police work, that is not their “advertised” purpose. Police departments who’ve spoken on the use of this technology have alleged that these techniques are critical parts of their counter-narcotics tasks forces’ operations. (https://www.wired.com/story/stingray-secret-surveillance-programs/). The use of intel from the National Security Agency is distributed to local law enforcement agencies, as well as the FBI and DEA.
 
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While all cell-site simulator uses are not seen to be violations of the Fourth Amendment, some defendants have prevailed with such arguments. In Jones v. United States the court held that the deployment of a cell-site stimulator without first obtaining a warrant based on probable cause was a violation of Mr. Jones' Fourth Amendment rights. No. 15-CF-322 (Sept. 21, 2017). Such cases stand in contrast to "inevitable discovery" situations. The inevitable discovery-doctrine states that if an unlawful process was not used, a lawful one would have produced the same evidentiary result. See Pinkney v. United States, 851 A.2d 479, 475 (D.C. 2004).;_Gore v. United States_, 145 A.3d 540, 548 (D.C. 2016).
 

How Do We Fix This?

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Unconstitutional practices should not become part of the normal operating practices of our national law enforcement agencies. Rogue agents can abuse this gap in "oversight." The lack of accountability can cause officers to conduct investigations rooted in racial biases or other prejudices. Additionally, the violations could interfere with a defendant's right to access any evidence against them possessed by the government, and one's entitlement to a remedy for government abuses. (https://www.hrw.org/report/2018/01/09/dark-side/secret-origins-evidence-us-criminal-cases#). Furthermore, information obtained through illegal searches should not be admissible in court.
 
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When pausing to imagine potential solutions for this widespread abuse of power and technology one things becomes particularly apparent; our capitalist society must be dismantled. There appears to be a “profit now, privacy concerns later” mentality that is quite alarming. The surveillance state and technology fueling its function will only continue to expand. Police offices no longer have to depend on human activity, that admittedly consists of errors, to apprehend subjects. They can sit in a van and have a fancy program by AT&T do the work for them, and they get to lie about it later.

While judicial intervention on these matters must continue, it is imperative that Congress intervene. The continued use of parallel construction by police departments severely interferes with the ability to obtain a fair trial. “It really gives a lot of power to the executive branch,” says St. Vincent. “It cuts judges out of the role of deciding whether something was legally obtained.” (https://www.wired.com/story/stingray-secret-surveillance-programs/). The curtain must be pulled back so the public can both become aware and provide comment on these practices. Whether police seek to control communities through violent force or secret data acquisition, unconstitutional means shall continue to be challenged. Ironically, protesters taking to the streets may be the necessary catalyst to drawing further attention to these practices.

There's a lot in this draft. Too much, in fact. I think the best route to improvement here is tighter focus.

If this isn't an essay about parallel construction, then it's taking up way too many sentences. If this is an essay about parallel construction then it needs to pull in much tighter and makes its ultimate proposal clearer.

If the point is that police behave in more constitutionally-infringing ways when police are themselves the issue bringing people into the street, then you have good work to do that the next draft would gain space for by removing the relatively smaller issue of parallel construction altogether. Paramilitary organizations, which is what police are, use all the tools they have for any purpose on the purpose of "force protection," or collective self-defense. So anything they can do that pushes the lines they will do in the ways that most push the lines when they feel threatened. That's why tight judicial supervision, not at the incident level but at the department level is so important. Consent decrees are important because federal lawyers and those they get evidence from can be in front of a federal judge on the consent decree violation really quick, and those orders the city will be in contempt not to obey immediately. So everybody negotiates in the shadow of that possibility, and restraint comes from the top down. The Trump Administration stopped making or enforcing those decrees, which the cop unions liked, and all cities noticed. Now there is some serious political will to push the needle in the other direction. But the sullen proto-insurrectionary sentiment among the Trump voters in our paramilitaries is also a fact in the calculations.

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The benefits of technology, such as efficiency in law enforcement operations, should not require U.S. citizens to sacrifice their constitutional rights. One potential resolution is to increase oversight by the Department of Justice over agencies such as the FBI and DEA. Processes, particularly those pertaining to evidence and investigation should comport with the constitutional right to a fair trial. Parallel construction "really gives a lot of power to the executive branch. It cuts judges out of the role of deciding whether something was legally obtained." (https://www.wired.com/story/stingray-secret-surveillance-programs/).
 
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Another potential remedy is for the NSA and local departments to publicly disclose the numerical data pertaining to the data acquired. Some people are not sensitive to the fact that they are constantly being surveilled, however, such shocking data might inspire them. A 2013 Washington Post article stated that NSA was gathering nearly 5 billion records pertaining to cellphone locations a day. (https://www.washingtonpost.com/world/national-security/nsa-tracking-cellphone-locations-worldwide-snowden-documents-show/2013/12/04/5492873a-5cf2-11e3-bc56-c6ca94801fac_story.html). Even someone who doesn't care about surveillance and claims they "don't have anything to hide" would be alarmed at the sheer quantity of data being acquired. Codifying the need for such reports is something that Congress can integrate into a larger data security and privacy scheme. Alternatively, agencies could issue guidance on the matter and create a time for a public hearing so there is an opportunity for notice and comment.
 
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While parallel construction is a tool that may make investigations move faster for officers, it prevents U.S. citizens from obtaining a fair trial, and enjoying their Fourth Amendment protections. There must be action taken so that the United States doesn't continue to prosecute individuals based on secret information.
 
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.

Revision 3r3 - 20 May 2021 - 03:18:40 - AhliaBethea
Revision 2r2 - 23 Apr 2021 - 15:40:19 - EbenMoglen
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