The current legal scuffle over encryption has a wider connotation beyond Apple fanboys or San Bernardino. The question is whether tech companies have the right to design devices without the government breathing down their necks. Which leads to other questions. Does helping to unlock one phone give authorities free reign to unlock any other iPhone? Is pure, encrypted privacy a right that Americans can have, even in a world that also contains terrorism and other evils?
For all of its bureaucratic sluggishness, the government is endlessly inventive in how it spies on its citizens. If nothing else, Edward Snowden’s National Security Agency leaks and his current status as a resident of Russia taught us that. There are all sorts of paths would-be law enforcement spies can take. Fighting against encryption is just the latest. Here are some of the most dangerous avenues that federal, state and local governments travel when their desire to catch criminals turns into something that makes the Fourth Amendment more of a suggestion and less of a ban on unreasonable search and seizure.
It’s 2016, and we’ve got brand new tools to creep on your metadata and sometimes even on your call content. One of these devices is the elusive Stingray, which is the most common brand name of a cell-phone-signal-capturing device manufactured by the Harris Corporation. Stingrays and similar meta-data collecting and tracking technology have been used secretly since the 1990s. Only in the last few years has the use of Stingrays by federal, state and local law enforcement been publicized after many dogged journalists filed Freedom of Information Act requests.
Basically, Stingrays trick cellphones into thinking they are cell towers and snag information from the phone when it reacts accordingly. They can also be used to track phones and have been used to do so without a warrant sometimes thousands of times in a single city, particularly in Baltimore and New York. In September, following a cascade of new stories casting Stingrays in a negative light, the Department of Justice said that their use must involve a warrant.
However, there is reason to doubt that all states and localities are following this. Not to mention, for years Stingrays were lied about in court and hidden from even judges and defense lawyers. Many people have argued that doing so does not give a suspect a chance to mount a fair defense because they don’t know where the evidence against them comes from. Harris and the FBI actually made local cops sign non-disclosure agreements before getting their hands on the devices.
Oh, and there are worse than Stingrays out there. Though Harris and the feds both claim that the usual Stingrays are not used to acquire call context or texts domestically, there is solid reason to believe they could be. And these devices have cousins such as the Triggerfish, which has the express purpose of listening in on actual content.
Similar to Stingrays is the even more unwieldy tower dump. This means identifying sometimes hundreds or even thousands of cell phone numbers that contacted a particular tower in an effort to find a criminal suspect’s device. This also means many innocent people are being tracked and their numbers being identified in an effort to find just one bad guy.
LICENSE PLATE READERS
A more headline-grabbing object of privacy-violating alarm is the use of drones. Plenty of fun for hobbyists, and useful for filming dangerous or inaccessible areas, drones are also being placed in the hands of police departments and federal agencies in increasing numbers. Drones have been used a few times to find criminals and–though they swear it’s just occasional use–occasionally by the Pentagon to surveil domestically.
Twentieth century tactics are also still being used. Several Supreme Court rulings in the 1980s allow for helicopters and planes to observe yards and homes from hundreds of feet above without it constituting a search. The Fourth Amendment has always had trouble getting into the air.
More recently the FBI turned out to have a small fleet of Cessna planes that were recently deployed to find supposed Russian spies in New York City but are more often deployed to check out protests such as the anti-police brutality movements that took place in Ferguson and Baltimore last year. Oh, and bringing 20th and 21st century tech together in a fun way, sometimes those Cessnas are flown by U.S. Marshals, and Stingrays are taken aloft to collect metadata or track phones that way. These are known as flying “dirtboxes.”
Taking things back even further in time, it is quite clear that local and federal law enforcement have over the years continued the grand tradition of President Richard Nixon’s fabled COINTELPRO. That is, feds and local cops continue to infiltrate mosques, animal rights groups, anarchist gatherings and any other organization that contains people they don’t trust. The extent to which they do this is unknown until it is revealed, but it’s a good guess that Muslims and animal rights activists have the best reason to distrust their friends and allies.
Once you get home, you may or may not be safe. Certainly a man (or woman’s) home is still their castle, to some extent. However, those protections have atrophied significantly but not, as you might suspect, due to the war on terror, but mostly because of the war on drugs. Tens of thousands of SWAT raids happen each year, and 80 percent are simply a strangely militaristic way of serving a search warrant, instead of, as one might more reasonably think, a response to a hostage situation. Most search warrant SWAT raids are just drug raids.
Judges freely stamp warrants for officers dying (sometimes literally) to kick someone’s door in, frequently over suspicion of low-level drug dealing. Sometimes these SWAT or other tactical raids are no-knock raids, meaning law enforcement agencies quite literally kick the door in and do not announce themselves as police. Other times police will enter a residence seconds after yelling “police!”, usually during the evening to early morning hours when someone is likely to be asleep. This tactic has proved fatal to police and homeowners alike, with homeowners often swearing they didn’t know the identity of the intruders.
Even more lawless is the additional punch of exigent circumstances. This is supposed to be an extreme exception to the cops needing a warrant. You are supposed to picture a Law and Order-style situation in which an innocent is kidnapped, and someone heroically arrives just in time to save the day. No doubt it’s happened that way, but more often it ends up being a dubiously-legal excuse to respond to dodgy tips and bust into a home without permission.
So how is this legal? Doesn’t our friend the Fourth Amendment say that the government can’t search you without saying exactly what it hopes to find, and you know, without having a warrant and everything? Well, it says that, but a lot other laws over the years have added fine print, based on extreme circumstances, on where data is, and on the new technology we have invented since the 18th century.
USA PATRIOT ACT
The USA PATRIOT Act, passed in a spasm of post-9/11 panic, legalized–at least according to the government’s interpretation–the NSA’s mass spying on Americans, which was hinted at before Edward Snowden’s revelations and was confirmed by the rogue NSA contractor. Specifically, PATRIOT’s Section 215 legalized the dragnet data collection because of its incredibly broad wording, which allowed for the government to collect “tangible things” that might help with a criminal investigation. This somehow gave us the NSA’s bottomless metadata collection and billions of files, which it also shares with agencies such as the Drug Enforcement Administration (DEA).
In June the compromise USA Freedom bill became law. This in theory led to the shutdown of the NSA’s bulk spying in December of 2015 and made sure that the agency had to target specific people. The NSA apparently will no longer be holding data, but the phone companies will keep it warm until the agency gets a federal court order. Security hawks such as Sen. Marco Rubio think USA Freedom is just handing anonymity to terrorists, yet questions remain about how much “No Such Agency” has changed its ways. There are always a myriad of ways to weasel around laws, especially when you’re talking about the security state and the war on terror.
THIRD PARTY DOCTRINE
One concrete way to diminish USA Freedom’s reforms is the use of the third party doctrine. This legal precedent has proved incredibly useful for government spying. Simply put, it means that if you voluntarily turn over any records to be held by another institution, your Fourth Amendment protections against search and seizure are not the same as if they were in your own possession.
Violent crimes such as kidnapping, rape, murder and terrorism remain blessedly rare in America. However, they do happen. This means that any privacy violation ever put into motion by law enforcement can be excused with some exceptional story as to why it is necessary. However, in reality, such powers are more often used to look for drug criminals or other petty offenders. Even worse, entirely law-abiding people are dragged into these searches.
The history of states, including our own, shows that when they spy, they spy upon the most oppressed, the most expendable and the most demonized groups and individuals.
Say you aren’t a terrorist or drug dealer. You don’t have anything to worry about, right? Well, no. Privacy is for everybody. There are compelling reasons to think that Apple’s battle with the government is going to be a very important one in the years to come. If encryption becomes a basic consumer good installed on every phone, it will be a victory for everybody.
However, it’s more than Apple, and it’s more than encryption that we should be concerned about. You should be exactly what President Obama said you shouldn’t be during his recent remarks at Austin’s SxSW festival. You actually should be “a privacy absolutist”, especially as technology improves, and the government’s does as well.
The history of states, including our own, shows that when they spy, they spy upon the most oppressed, the most expendable and the most demonized groups and individuals. Privacy is your property, and the existence of rare crimes is not an argument strong enough to topple that.
Law enforcement always has other tools for the exceptional circumstances. Somehow, when given a longer leash–you know, some “reasonable compromise”–to go after the bad guys, those guys nearly always turn out to be not terrorists, not even kidnappers, just drug dealers or minorities.
Come President Clinton, or President Trump, your candidate of choice won’t be the exception to the dangers mentioned above. Privacy is in peril already, and unless there’s serious public and legislative pushback, it will only get worse.
Even if you tend to trust law enforcement, you should also trust that it will use any power it is given as often as possible. Luckily, there simply aren’t enough terrorists or serial killers in the country for them to focus on. Unluckily, that means they’re looking at us as well.