Post on 21-Feb-2023
Lawless Technology in a Lawful Society For Investigative Processes
Anthony Lawing
Nova SouthEastern University
In partial fulfillment of the requirements for the Masters of Science Studies in National Security Affairs
October 14, 2014
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Abstract
This paper will explore the investigatory technological methods of surveillance. The paper will cover the twenty-first century types of surveillance utilized for cases such as wiretapping and stakeouts and span the contemporary methods such as cell phone data tapping and drone surveillance.
The paper will discuss in detail the technology behind the surveillance techniques and how it is used in law enforcement investigations. The paper will discuss the law enforcement entities that currently use or have access to the new surveillance technologies and how they are utilized on a routine basis for diurnal law enforcement operations such as criminal intelligence, as well as specific criminal offenses. The paper will cover how the use of technology is determined and what can be admissible in the judicial system, as well as how the law enforcement may use the information gathered from the higher technological surveillance.
The term paper will also discuss landmark cases of surveillance technology and how they apply to constitutional rights of U.S. citizens, such as the United States versus Jones which detailed the unreasonable use of GPS tracking by law enforcement, and the U.S. Patriot Act controversial reform that expressed serious civil liberty violations.
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Introduction
This paper will examine the use of ultramodern surveillance technology and the impact it has
had on contemporary society. Law enforcement organizations from the federal level to the local
levels are constantly exploring new and precise technologies to aid or assist in its missions or
daily operations. Technologies such as wire tapping and GPS tracking are common terms in
today’s national and law enforcement culture, but there are also technologies that are little known
to the average citizen such as drones and data mining, and even the known technologies, few
understand how they are applied and affected by them.
This paper will highlight some of those technologies and how they work, as well as apply
them to the judicial system and their admissibility in a court of law. Some of the current
technologies has even produced watershed moments in how the U.S. conducts and uses the
surveillance pertinent to the Constitutional rights of United States citizens.
Communication Surveillance
Pen registers and wiretapping are technologies that has been utilized by law enforcement
in criminal investigations for decades, but with the advent of cellular telephone devices and
modern transnational criminal activity, the aforementioned technology has increased in volume
and sophistication. The Federal Bureau of Investigation (FBI) and other law enforcement
agencies has utilized a technology known as “Stingray” an article from the Washington Times
(Mar 29, 2013) describes as, “a sophisticated cellphone tracking tool that can pinpoint callers’
locations and listen to their conversations.” The technology works by a mobile tower simulating
a cellphone tower allowing it to place an exact GPS position of any mobile communication
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mechanism in its range, and intercept electronic data and voice communications. Proving that
Stingray is much more than just a listening device, it also is a data mining tool. The use of
Stingray has been under heavy scrutiny lately, due to the law enforcement communities
justification of the use of the technology under the authority of pen registers, that enables the law
enforcement departments to obtain orders without probable cause of a search warrant, also
known as “tap and trace” orders. With the Stingrays ability to monitor voice communication, the
right to privacy and violation of the fourth amendment comes into question. As recently as June
11, 2014, a United States Court of Appeals in Circuit 11, ruled that a warrant must be obtained
before acquiring cellular phone location data (U.S. News, Jun 12, 2014). The ruling only applies
to three states, Florida, Alabama, and Georgia, but other states in the nation are undertaking
similar litigations.
One of the more intricate communication surveillance technologies is the “wiretapping of
internet activities, including email and web browsing. The essential technology for this
contemporary method of surveillance is the use of exploratory data mining (EDM). Data mining
is a relatively new discipline in criminology, similar to profiling, but much more complex and
personalized.
Data mining was once a tool exclusive to Federal law enforcement agencies, but now it is
available nationwide and utilized by all levels of law enforcement entities and private business
practices to provide criminal or business intelligence. According to an article by the International
Journal of Computer Science and Technology (Kaur and Singh, 2011); “Data mining is the
process of extracting patterns from data. Basically Data mining is the analysis of observational
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data sets to find unsuspected associations and to sum up the data in new ways that are both clear
and useful to the data owner.”
Data mining is an internet surveillance tool for law enforcement, and provides a method of
millisecond assessments of masses of information for criminal activity stored in a log of data
sets, that can be used for risk and threat assessment, behavioral and signature analysis, document
analysis, and crime analysis, amongst others. An informative article explains it; “Data mining is
an essential tool for analyzing Internet and Web log data. Monitoring and characterizing
“normal” activity can help to rapidly identify unusual or suspicious events in large datasets,
providing actionable patterns for use in subsequent analysis and surveillance” (McCue, 2006).
As of right now there has not been a court ruling or statue implemented that prohibits
agencies from data mining without warrants. In part because it is a new phenomenon and not
much is known about it, and in part because there has not been any benchmark cases to challenge
it. Data mining Web logs and email is just the beginning, new technologies in the pipeline in the
not so distant future include internet video extraction, speech recognition, socio-cultural content
analysis, and virtual-real world behavior indicators, as specified by the 2014 Domestic
Surveillance Directorate. Below are two info-graphics on how the process of data mining works.
The first image displays data mining operating in its simplest form, and the second image
displays data mining as a law enforcement function.
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Data Mining
Source: Data Warehousing Review
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Law Enforcement Data Mining
Source: 2014 Domestic Surveillance Directorate
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The last form of communication surveillance this paper will discuss is the use of the global
positioning systems otherwise known as GPS. The use of GPS is considered a communication
surveillance device because it tracks a precise location of an object during intervals of
movement, transmitted through a satellite, radio, or cellular device. Law enforcement officials
can either attach a GPS device to a moving object or track a mobile device with the capability to
be intercepted by an apparatus such as the aforementioned “Stingray.” The tracking of criminal
suspects utilizing GPS has recently came under scrutiny based on the principle of the Fourth
Amendment protections from unreasonable searches and seizures. Long-term surveillance via
GPS falls under the standard that probable cause must be established and a search affidavit must
be warranted to proceed with tracking. Prior to January 2012, this was not the standard. The
Supreme Court on January 23, 2012, unanimously ruled that law enforcement must obtain a
search warrant before attaching a GPS to a subjects conveyance. This landmark decision was the
result of a Washington D.C. court case, where according to the Washington Post, reversed the
conviction of a suspected Washington D.C. area drug lord in which the Supreme court ruled the
rights of the suspect were violated when law enforcement attached a GPS device to his personal
vehicle and monitored it for twenty-eight days (Barnes, 2012). The justices agreed that installing
a GPS and tracking the vehicles movements for that extended period of time violated the
suspects protection against unreasonable searches and seizures.
The article from the Washington Post concerning GPS states that this restricts the police’s
ability to use a GPS device to track criminal suspects in a first test of how privacy rights will be
protected in the digital age (Barnes, 2012). An article from USA Today mirrors the excerpt
stating, this was a major decision on privacy in the digital age (Biskupic, 2012). This case was
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very important because of the key word, “digital age”. As each day passes technology advances
and renders itself obsolete shortly after, so the methods that law enforcement use today and in the
future will only get more sophisticated and technical which will undoubtedly present more issues
with the rights of citizens being under surveillance with revolutionary technology.
Video Recorded Surveillance
Next, this paper will be discussing the realm of video surveillance in its regulated, but
omnipresent forms. The first video surveillance of discussion is the use of public video cameras
(PVCs). The use of PVCs is not a relatively new phenomenon, in fact stationary video
surveillance has been around for sometime now, but the use of high technological, highly
intuitive surveillance cameras are increasing by the day, especially in the wake of a post 9/11
world. PVCs with X-ray sensors, thermal imaging, and electromagnetic energy are all a
contemporary reality, although not widely used just yet. The newest phenomenon are cameras
that augment on the screen to the surveyor the personal identification of people by simply
scanning their facial attributes, also known as facial recognition.
A publication from the Department of Homeland Security (DHS) details a new video
surveillance system in development by the DHS Science and Technology Directorate that will
give law enforcement a 360° multiple view, high resolution imaging camera with digital video
recording (DVR) features. The DHS publication explains the technology; “…The video is made
from a series of individual cameras stitched into a single, live view—like a high-res video
quilt… This system has a resolution capability of 100 megapixels” (DHS Sep 19, 2014). The
publication goes on to give an example of what the technology can do utilizing accompanied
software applications:
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One app can define a sacrosanct “exclusion zone,” for which the system provides an alert the moment it’s breached. Another lets the operator pick a target—a person, a package, or a pickup truck—and the detailed viewing window will tag it and follow it, automatically panning and tilting as needed. Video analytics at high resolution across a 360-degree field of view, coupled with the ability to follow objects against a cluttered background, would provide enhanced situational awareness as an incident unfolds. (DHS, Sep 19, 2014)
As mentioned earlier, surveillance in the post 9/11 world was obviously kept in mind with the
invention of this camera. The DHS publication states; “In the event that a terrorist attack has
occurred, forensic investigators can pore over the most recent video, using pan, zoom, and tilt
controls to reconstruct who did what and when” (DHS, Sep 19, 2014). This camera will
especially be useful if a terrorist attack occurs and the suspect attempts to blend in with the
surroundings attempting to escape authorities.
The expectation of privacy seems not to be a concern for the use of PVCs at this point,
because obviously these cameras are placed in public settings, so they have the right to be
staged; Probable Cause need not to be established based on that premise. An article from Legal
and Criminal Justice (June, 2013) address this issue; “In order to obtain video footage in a
criminal case, investigators don't have to do all of the leg work that's required to obtain a wire
tap…Often all that's required to access soundless video footage is a simple subpoena.” The
public setting justifies the lower standard, the article mentions a Supreme court case that address
the legal aspect of right to privacy in a particular case:
In one case, the California Supreme Court decided that it was perfectly legal for police to use a
flyover to observe an individual's fenced-in back yard because there was reasonable suspicion
that this individual was growing marijuana. The court found that it was not unlawful for the
police to investigate in this manner since "one who grows illicit drugs in his backyard is [not]
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‘entitled to assume' his unlawful conduct will not be observed by a passing aircraft…(Legal and
Criminal Justice, 2014).
In other words given the interpretation of the Fourth Amendment and the example of the
California case, if a law enforcement has the right to be where a video camera can be stationed,
proponents contend it is not an invasion of privacy to insert a camera in that space.
The last type of video surveillance discussed here will be the use of drones which have
become exponentially popular for use in the private, commercial and law enforcement spectra’s.
The outlook of drone use looks to gain even more traction over the next few years as the
technology continues to trend upward. A drone is basically an unmanned aerial aircraft, being
remotely controlled by a person with access to either a command center with sophisticated
equipment or a simple radio controller. For this term paper we will only cover the law
enforcement use of drones.
In the last few years drones has increasingly become mainstream as the technology has
become more widely available to law enforcement organizations on all levels. Normally the
Federal law enforcement agencies are the first to adopt and implement new sophisticated
technologies such as UAVs in their operations, as is the case with the drones. Not all drones are
made equal, they come in a variety of shapes and sizes, from mini drones that are launched from
someone’s hand to aircraft size drones that need a runway to take flight. The one thing the drones
all do have in common are the ability to use cameras for surveillance. Currently the Unites States
Customs and Border Patrol (CBP) employs UAV’s to patrol the southern borders for migrant and
narcotic interdiction activities. The FBI is also currently in discussions to utilize drones within
U.S. territory to monitor domestic crimes.
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The issue with drones as with PVCs, is the delicate issue of unlawful surveillance. Not only
can drones be equipped with high technological cameras, but an array of sensors as well, adding
to the issue of expectations of privacy; Especially in residential areas. A scholarly article from
the Congressional Research Services touches on this very point precisely; … “The
constitutionality of domestic drone surveillance may depend upon the context in which such
surveillance takes place. Whether a targeted individual is at home, in his backyard, in the public
square, or near a national border will play a large role in determining whether he is entitled to
privacy. Equally important is the sophistication of the technology used by law enforcement and
the duration of the surveillance” (Thompson, R., 2013). Circumventing the Fourth Amendment
rights of citizens has increasingly become a daily conversation with the post 9/11 world
surveillance technology that inevitably the courts of the law of the land is going to have to
deliberate on a macro level rather than a case by case basis, because ultimately law principles
such as the exclusionary rule and “fruits” of it will play a deciding factor in more than the usual
exception of cases.
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Source: Forbes Source: Southern California Monitoring Association
Source: The Carrier Mail
Source: Net Mechanic
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Conclusion
Currently in U.S. society, citizens are perennially concerned about being under the watchful
eye of the law at any time in all places. Perception is emerging that a society thats holds itself to
a constitutional standard of the rights to privacy, those inherited rights are being disregarded and
violated by the advent of new surveillance technologies by not only Federal and local law
enforcement, but even private organizations as well. Although there has been a few cases that
shed light and made game changing decisions on law enforcements surveillance tactics with
technological equipment, those cases are quickly becoming as obsolete as three month old
technology. At some point the Supreme court is going to have to address the issue of the
incredibly shrinking privacy laws and apply them to a modern statutory article that covers the
sophistication of surveillance technology and how it should apply to privacy going fourth.
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References
Barnes, R. (Jan 23, 2012). Supreme Court Limits Police use of GPS Tracking. Washington Post. Retrieved from http://www.washingtonpost.com/politics/supreme-court-warrants-needed-in-gps-tracking/2012/01/23/gIQAx7qGLQ_story.html.
Biskupic, J. (Jan 24, 2012). Supreme Court Rules Warrant Needed for GPS Tracking. USA Today. Retrieved from http://usatoday30.usatoday.com/news/washington/judicial/story/2012-01-23/supreme-court-GPS/52754354/1.
Department of Homeland Security. (Sep 19, 2014). Imaging System for Immersive Surveillance: New Video Camera Sees It All. DHS: Publication. Retrieved at http://www.dhs.gov/imaging-system-immersive-surveillance-new-video-camera-sees-it-all.
Kaur, G., Singh, L. (Jun, 2011). Data Mining: An Overview. International Journal of Computer Science and Technology: Vol. 2, Issue 2. Department of computer science and IT.
McCue, C. (2006). Data Mining and Crime Analysis in the Richmond Police Department. SPSS: Executive Brief. RTI International.
Nelson, S. (Jun 12, 2014). Police Need Warrant for Cellphone Location Data, Appeals Court Rules. U.S. News and World Report. Retrieved from http://www.usnews.com/news/articles/2014/06/12/police-need-warrant-for-cellphone-location-data-appeals-court-rules.
Thompson, R. (Apr 3, 2013). Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses. Congressional Research Service. Retrieved from http://www.a51.nl/storage/pdf/R42701.pdf.
Waterman, S. (Mar, 29, 2013). Can you hear me now? Feds admit FBI warrantless cellphone tracking ‘very common’. The Washington Times. Retrieved from http://www.washingtontimes.com/news/2013/mar/29/feds-fbi-warrantless-cell-tracking-very-common/.
Written by Freelance Talent. (June, 2013). How Many Eyes are Watching? Video Surveillance and Privacy. Legal and Criminal Justice: Issue 29. Retrieved from http://source.southuniversity.edu/how-many-eyes-are-watching-video-surveillance-and-privacy-20205.aspx