This document discusses how police are increasingly using surveillance technology and the concerns around its use. It provides examples of different surveillance tools used by police, including automatic license plate readers, CCTV cameras, biometric surveillance, gunshot detectors, x-ray vans, and hacking software. For each tool, it describes how the technology works and the privacy and civil liberties issues involved in police using them without adequate oversight or limitations. It also discusses how surveillance has historically been used to target and intimidate civil rights leaders and current political movements like Black Lives Matter. The document aims to educate public defenders on these technologies and their Fourth Amendment implications.

1. Surveillance Technology and
How Police Are Using It
Blake Feldman
Fall Public Defender Conference
October 27, 2016

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Historical Insight
“ . . . [U]nder ordinary and normal circumstances wire-tapping
by government agents should not be carried on for the
excellent reason that it is almost bound to lead to abuse of
civil rights.”
 President Franklin D. Roosevelt (1940)
“Drug arrests are disproportionately black because of police
department surveillance patterns. [S]tudies prove that our
drug enforcement efforts result in black city-dwellers being
disproportionately arrested for activity both races engage in,
simply because they are more easily subject to surveillance.”
 Judge Robert L. Carter (2000)

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Surveillance has been used by governments throughout
history to suppress free speech and intimidate the
leaders of political movements.
Civil Rights Leaders:
 The Nation’s Betty Medsger
reported that under J. Edgar
Hoover, who led the FBI for 48
years, “directives . . . required
FBI field offices to watch
African-Americans wherever
they went—in churches, in
classrooms, on college
campuses, in bars, in
restaurants, in bookstores, in
their places of employment, in
stores, in any social setting, in
their neighborhoods and even
at the front doors of their
homes.”
Black Lives Matter:
 NYPD systemically surveilling
Muslims since 9/11
 Chicago PD systemically
surveilling meetings post-
Ferguson.
 Sophisticated aerial
surveillance of Baltimore
protests.

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Surveillance Technology
An Overview
 Common Types of Surveillance Technology
 What the technology does
 Why the ACLU is concerned

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Automatic License Plate Readers
 Function(s): ALPRs
(fixed or mobile) take
photographs of license
plates, digitize them, and
enable the captured data
to be searched, stored or
processed in real time or
historically.

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Automatic License Plate Readers
 Issue(s):
 Retention: The data collected by them, which should in
the absence of a warrant be processed and deleted in
matter of days, is often kept for months or even years. This
allows the government to track where people travel in their
cars.
 Privatization: Private companies providing ALPRs to
localities free of charge in return for access to the data
they collect, which they then monetize.
 Unknown: Due to a lack of data, it is hard to ascertain if
ALPRs are being deployed discriminatorily.

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Closed-Circuit Television Cameras
 Function(s): CCTV cameras
are video cameras that
transmit their signal to a
limited number of external
monitors or computers. They
are frequently used by the
police to monitor public
spaces remotely. CCTV is
also widely used by private
entities for security and
monitoring purposes.

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Closed-Circuit Television Cameras
 Issue(s):
 CCTV allows police to monitor public activities virtually
24/7 without a real justification or public benefit.
 The cameras are over-deployed in areas that are deemed
by police to be “high crime,” which often really means
communities of color.
 A growing area of concern is with police departments
seeking to voluntarily gain remote access to private CCTV
systems.
 We are also increasingly concerned about the placement
of cameras directly outside of private homes.

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Biometric Surveillance Technology
 Function(s): These
technologies allow a person
to be identified using a
physical trait (e.g.,
fingerprints, DNA, facial
features, voice, iris, gait).

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Biometric Surveillance Technology
 Issue(s):
 This is no longer limited to fingerprints and DNA, which
could only be obtained voluntarily or following an arrest.
 It completely undermines the ability of person to travel in
public or gather with friends anonymously.
 These systems are imperfect, which can produce a lot of
false-positives that result in innocent people unjustifiably
drawing the attention of law enforcement.
 Due to technological limitations and biased engineering
practices, these false-positives are far more likely to occur
with non-whites than with whites.

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Gunshot detection and location
hardware and services
 Technology Name(s):
ShotSpotter
 Function(s): Gunshot
detectors, like
ShotSpotter, are
essentially
microphones that are
designed to detect the sound of a gunshot. By placing
them throughout an area, the microphones are able to
triangulate a gunshot and provide police with a limited
geographic location from which a gunshot emanated.

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Gunshot detection and location
hardware and services
 Issue(s): If these secretly
operated microphones can
be remotely activated and
used to listen in on the
communities in which they
are placed, they can
represent another form of
general, mass surveillance.
Only with strict limitations and auditing can we be sure this
technology is not abused, and such oversight commonly does
not exist.

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X-ray Vans
 Technology Name(s):
Z Backscatter Vans
 Function(s): The
technology, much like the
now retired backscatter
machines used by TSA at
airport security checkpoints,
uses x-ray radiation to do
what no human eye can do,
like see through clothing and
car exteriors.

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X-ray Vans
 Issue(s): We don't know exactly how government
purchasers of these vans are using them, but if they are in
fact being used on public streets in non-emergencies and
without a warrant, that would be a major violation of the
Constitution (not to mention a possible threat to public health).
Unless they have probable cause to search a specific vehicle,
government agencies should not be roaming U.S. streets
conducting backscatter X-ray scans of vehicles and their
occupants (much less pedestrians, cyclists, etc.) without their
knowledge or consent.

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Surveillance Enabled Lightbulbs
 Function(s): While posing
as energy efficient
upgrades to existing
incandescent lightbulbs,
LED surveillance lightbulbs
actually conceal tiny
cameras and microphones
that can stealthy monitor
their surroundings and
transmit their feeds back to
a central monitoring station
or computer.

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Surveillance Enabled Lightbulbs
 Issue(s):
 LED surveillance lightbulbs, if installed on municipal
streetlamps, would throw a net of almost unprecedented
scope over entire communities or cities.
 What is particularly troubling with surveillance bulbs is the
stealthy way in which they are being marketed and pitched
to the press; to wit, as an energy efficient light bulb with
built-in monitoring technology.
 What the product really appears to be is a mass
surveillance device being disguised as an LED light bulb.

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Hacking Software and Hardware
 Function(s): This technology allows law enforcement to
access a person’s personal computing equipment
(including desktops, laptops, cell phones, tablets, etc.) or
password-protected websites or accounts (such as cloud
storage or a social media account), either in person or
remotely, without the permission of either the account-
holder or the operator of the service.

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Hacking Software and Hardware
 Issue(s):
 When a government hacks into a private computer or
account, is does so with the specific intent of surveilling
the private contents of that computer or account without
the person’s permission or knowledge.
 Hacking tools depend on vulnerabilities that can be
targeted by criminals as well as law enforcement. A
government that invests in hacking tools has a perverse
incentive to avoid shoring up the infrastructure the public
depends on, weakening its role as a promoter of the public
good.

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Social Media Monitoring Software (SMMS)
 Technology Name(s):
 Digital Stakeout
 XI Social Discovery
 Geofeedia
 Dataminr
 Dunami
 SocioSpyder

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Social Media Monitoring Software (SMMS)
 Function(s):
 covertly monitor, collect, and analyze individual’s social media
data from platforms like Twitter, Facebook, and Instagram.
 perform highly sophisticated fishing expeditions across the
internet by using complex algorithms to analyze/organize data.
 geographically track people as they communicate.
 chart people’s relationships, networks, and associations.
 monitor protests, identify the leaders of political and social
movements, and measure a person’s influence.
 It is also promoted as a predictor of future events, including
threat assessment, and as an instrument for manipulating public
opinion.

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Social Media Monitoring Software (SMMS)
 Issue(s):
 SMMS improperly blankets a whole range of innocent
people without any evidence of wrongdoing.
 SMMS has the potential to chill free speech.
 The imprecise and privacy-violating manner in which it
sweeps in the postings of scores of innocent people, and
the degree to which it is over-focused on persons of color,
has earned it the description of a “21st century stop and
frisk.”
 SMMS has been used extensively and aggressively
against Black Lives Matter leaders and protestors.

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Surveillance has been used by governments throughout
history to suppress free speech and intimidate the
leaders of political movements.
Civil Rights Leaders:
 The FBI and NSA
routinely spied on civil
rights leaders, including
Martin Luther King Jr.
and Cesar Chavez. The
FBI used information
from secret surveillance
of civil rights leaders to
discredit and intimidate
them.
Black Lives Matter:
 Fresno, CA police have for
years systematically
monitored social media
activity related to the BLM
movement.
 An investigator at the Oregon
DOJ racially profiled Twitter
users using the hashtag
#BlackLivesMatter.
 A cybersecurity firm with ties
to law enforcement monitored
prominent BLM leaders and
labeled them “threat actors.”

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Through-the-wall Sensors/Radar
 Function(s): This technology uses radar or similar
technology to peer through to walls of a building.
 Currently the technology is precise enough to ascertain
how many people are in a particular room within a dwelling
unit.
 Over time, the clarity of the image produced by wall-
penetrating technologies may become precise enough to
determine the identities of a building’s occupants.

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Through-the-wall Sensors/Radar
 Issue(s):
 While this technology may have beneficial uses, such as
allowing a SWAT team to learn the number of occupants in
a home, and whether or not they are armed, prior to a raid,
any such use is only appropriate pursuant to a warrant.
 Because this technology can be used stealthy, as it
advances, it may increasingly (and improperly) be used as
a way to look into private dwellings without court oversight.

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Body-worn Cameras
 Function(s): BWCs are intended to capture police
interactions with the public from an angle approximating
a police officer’s point of view. .
 Issue(s): While wearable cameras have the potential to
provide greater police transparency and accountability,
they can also present a significant threat to privacy.
 With the wrong policies in place, body cameras can be
turned from a transparency and accountability tool into a
police propaganda and mass surveillance tool.

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Predictive Policing Software
 Function(s):
 Predictive policing software uses mathematical and
analytical techniques to attempt to predict future criminal
activity (a sci-fi version of its use is the basis for the film
“Minority Report”).
 Predictive policing software is claimed to be helpful in
predicting crimes, predicting offenders, predicting
perpetrators’ identities, and predicting victims of crime.

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Predictive Policing Software
 Issue(s):
 Inputting historically biased data into a computer and then
crunching it through an algorithm will merely produce
biased results that instruct the police to continue to over-
police poor communities and communities of color.
 This highly untested technology raises numerous
additional questions, including how accurate the
algorithms are in extracting information from data.
 These tools are often proprietary, with algorithms, data
inputs, and source code shielded from review or oversight.

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Stingrays
The Most Common Surveillance Tool the
Government Won’t Tell You About
 What are they?
 Why the ACLU is concerned?
 Who has them?
 A Guide For Criminal Defense Attorneys

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Stingrays
 Other Name(s): Cell-site simulators; International
mobile subscriber identity (IMSI) catchers.
 Function(s): It mimics a cell
phone communications tower,
causing your cell phone to
communicate with it. This
communications link gives the
Stingray the ability to track your
location and intercept data from
your phone, including voice
and typed communications.

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Stingrays
 Issue(s):
 When it grabs information off a targeted phone, it also
sweeps in information about 100s or 1,000s of additional
non-targeted phones.
 The technology is often used without a warrant, or
pursuant to a warrant issued by a judge who has been
misled about what technology is being used or what its
capabilities and limitations are.
 It is very difficult to detect when it is being used and to
ensure that it is not being deployed in a discriminatory
manner.

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LAYOUT 2

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Stingrays
A guide for public defenders
 What kind of court authorization, if any, does the
government currently obtain to use the device?
 What guidance have courts offered on Stingrays?
 How can you determine whether a Stingray was used in
your case?
 What are the best arguments for suppression?

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Court authorization for IMSI catchers
 What kind of court authorization, if any, does the
government currently obtain to use the device?
 No court authorization (e.g., Milwaukee, Tucson,
Sacramento, etc.)
 Pen Register/Trap and Trace order?
 Necessary or “best practice”? Seeking ESN/MIN or location?
 Hybrid Order?
 Combining Pen/Trap Statute w/ Stored Communications Act?
 Warrant?

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Guidance from courts on IMSI catchers
 In re Application for an Order Authorizing Installation and
Use of a Pen Register and Trap and Trace Device, 890
F. Supp. 2d 747 (S.D. Tex. 2012)

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How to determine if IMSI catcher was used
in your case
 Terminology
 Digital analyzer, cell site simulator, cell site emulator, cell
site monitor, triggerfish, kingfish, amberjack, hailstorm,
WITT
 Mobile tracking device, pen register, confidential source
 If gov’t obtained an order for a wiretap or carrier call
records, how did the gov’t first find out your client’s cell
phone number?
 If cryptic reference to “confidential source of information,”
pursue issue of IMSI catcher in discovery

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How to determine if IMSI catcher was used
in your case
 If at any point in the investigation, the gov’t was able to ID
the location of your client, considering pursuing IMSI in
discovery, even if gov’t provides alternative explanation.
Email from an FBI Special Agent
in U.S. v. Rigmaiden

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Arguments for suppression when IMSI
catcher was used
 IMSI catchers trigger Fourth Amendment scrutiny
 Use in connection with a residence. See Kyllo (2001);
Compare Knotts (1983) with Karo (1984).
 Distinguish from In re Application for Historical Cell Site Data,
724 F.3d 600 (5th
Cir. 2013) (holding that a warrant is not
required for historical CSLI)
• (1) Not using a 3rd
party, (2) literally forced, rather than
“voluntary”; (3) reasonable expectation of privacy in
home; (4) property rationale arguments (e.g., device
used while in curtilage; electronic signal penetrating
walls of residence)

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Arguments for suppression when IMSI
catcher was used
 IMSI catchers trigger Fourth Amendment scrutiny
 Use in public.
 Seizure: IMSI essentially “captures” your client’s phone,
“forces” it to disconnect form the carrier’s base station, and
“forces” it to register with the IMSI catcher.
 Search: While the DOJ has made clear that capabilities of
collecting private communications, it is unclear what state
and local LEAs are collecting. It’s essential to obtain
discovery concerning the type of data collected.
 Search: If an IMSI catcher was used to monitor your client’s
location for a prolonged period of time, it may constitute a
search.

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Arguments for suppression when IMSI
catcher was used
 IMSI catchers engage in the electronic equivalent of a
“general search,” in violation of Fourth Amendment.
 Statutory orders don’t suffice to authorize IMSI catcher
use.
 Even if a warrant was secured, the warrant is invalid
because it either misled the judge or because the judge,
if adequately informed of IMSI catcher capabilities,
issued a facially invalid warrant.

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For more information, contact:
Blake Feldman: bfeldman@aclu-ms.org
or read more on our website at:
www.aclu.org/issues/privacy-
technology

43. www.aclu-ms.org