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