One of the most important issues in privacy and surveillance is also one of the least-discussed — the use of new surveillance technologies in ordinary law enforcement. Reasons for this neglect surely include:
- Governments, including in the US, lie about this subject a lot. Indeed, most of the reporting we do have is exposure of the lies.
- There’s no obvious technology industry ox being gored. What I wrote in another post about Apple, Microsoft et al. upholding their customers’ rights doesn’t have a close analogue here.
One major thread in the United States is:
- The NSA (National Security Agency) collects information on US citizens. It turns a bunch of this over to the “Special Operations Division” (SOD) of the Drug Enforcement Administration (NSA).
- The SOD has also long collected its own clandestine intelligence.
- The SOD turns over information to the DEA, FBI (Federal Bureau of Investigation), IRS (Internal Revenue Service) and perhaps also other law enforcement agencies.
- The SOD mandates that the recipient agencies lie about the source of the information, even in trials and court filings. This is called “parallel construction”, in that the nature of the lie is to create another supposed source for the original information, which has the dual virtues of:
- Making it look like the information was obtained by allowable means.
- Protecting confidentiality of the information’s true source.
- There is a new initiative to allow the NSA to share more surveillance information on US citizens with other agencies openly, thus reducing the “need” to lie, and hopefully gaining efficiency/effectiveness in information-sharing as well.
Similarly, StingRay devices that intercept cell phone calls (and thus potentially degrade service) are used by local police departments, who then engage in “parallel construction” for several reasons, one simply being an NDA with manufacturer Harris Corporation.
Links about these and other surveillance practices are below.
At this point we should note the distinction between intelligence/leads and admissible evidence.
- Intelligence (or leads) is any information that can be used to point law enforcement or security forces at people who either plan to do or already have done unlawful and/or very harmful things.
- Admissible evidence is information that can legally be used to convict people of crimes or otherwise bring down penalties and sanctions upon then.
I won’t get into the minutiae of warrants, subpoenas, probable cause and all that, but let’s just say:
- In theory there’s a semi-bright line between intelligence and admissible evidence; i.e., there’s some blurring, but in most cases the line can be pretty easily seen.
- In practice there’s a lot of blurring. Parallel construction is only one of the ways the semi-bright line gets scuffed over.
- Even so, this distinction has great value. The number of people who have been badly harmed in the US by inappropriate use of inadmissible intelligence isn’t very high …
- … yet.
“Yet” is the key word. My core message in this post is that — despite the lack of catastrophe to date — the blurring of the intelligence/evidence line needs to be greatly reversed:
Going forward, the line between intelligence and admissible evidence needs to be established and maintained in a super-bright state.
As you may recall, I’ve said that for years, in a variety of different phrasings. Still, it’s a big enough deal that I feel I should pound the table about it from time to time — especially now, when public policy in other aspects of surveillance is going pretty well, but this area is headed for disaster. My argument for this view can be summarized in two bullet points:
- Massive surveillance is inevitable.
- Unless the uses of the resulting information are VERY limited, freedoms will be chilled into oblivion.
I recapitulate the chilling effects argument frequently, so for the rest of this post let’s focus on the first bullet point. Massive surveillance will be a fact of life for reasons including:
- As a practical political matter, domestic surveillance will be used at least for anti-terrorism. If you doubt that — please just consider the number of people who support Donald Trump.
- Actually, the constituency for anti-terrorism surveillance is much more than just the paranoid idiots. Indeed — and notwithstanding the great excesses of anti-terrorism propaganda around the world — that constituency includes me. My reasons start:
- In a country of well over 300 million people, there probably are a few who are both crazy and smart enough to launch Really Bad Attacks. Stopping them before they act is a Very Good Idea.
- The alternative is security — or more likely security theater — measures that are intrusive across the board. I like unfettered freedom of movement, for example. But I can barely stand the TSA (Transportation Security Administration).
- Commercial “surveillance” is intense. And it’s essential to the internet economy.
And so I return to the point I’ve been making for years: Surveillance WILL happen. So the use of surveillance information needs to be tightly limited.
- Reason’s recent rant about parallel construction contains a huge number of links. Ditto a calmer Rodney Balko blog for the Washington Post. (March, 2016).
- Reuters gave details of the SOD’s thou-shalt-lie mandates in August, 2013.
- If you have a clearance and work in the civilian sector, you may be subject to 24/7 surveillance, aka continuous evaluation, for fear that you might be the next Ed Snowden. (March, 2016)
- License plate scanning databases are already a big deal in law enforcement. (October, 2015)
- StingRay-type devices are powerful, and have been for quite a few years. They’re really powerful. Procedures related to StingRay surveillance are in flux. (2015)
- Chilling effects are real. (April, 2016)
- At least one federal court has decided that tracking URLs visited without a warrant is an illegal wiretap. Other courts think your URL visits, shopping history, etc. are fair game. (November, 2015)
- Pakistan in effect bugged citizens’ cell phones to track their movements and force polio vaccines on them. (November, 2015)
- This is not totally on-topic, but it does support worries about what the government can do with surveillance-based analytics — law enforcement can wildly exaggerate the significance of its “scientific” evidence, and gain bogus convictions as a result. (2015-2016).
- The Electronic Frontier Foundation offers a dated but fact-filled overview of NSA domestic spying (2012-2013).