The following op-ed, written by our research intern Molly Davis, was published today in the Salt Lake Tribune.
In the digital era, our private lives are often stored within our mobile devices. In a surveillance state, law enforcement can access these devices like an open book.
While technology continues to change how people behave and interact, government policies often remain stagnant. And while laws and regulations usually don’t keep up, law enforcement agencies do a decent job—meaning that the government takes advantage of modern technology for surveillance and law enforcement, while privacy protections for you and I lag behind.
Consider the case of the stingray—a mobile phone surveillance gadget utilized by law enforcement to intercept and store a person’s phone calls, texts, emails, and location. These devices collect information from everyone in the vicinity, allowing the government to access private and potentially sensitive information about countless innocent individuals.
Up until 2014—seven years after the first iPhone was released—there was no clearly defined federal privacy protections regarding an individual’s electronic data. In Riley v. California, the U.S. Supreme Court unanimously held that a search warrant was required in order to look through the digital contents of a person’s cell phone upon his or her arrest. Note that this ruling applies only to arrested persons who have their phone confiscated when arrested; government agents routinely surveil people who have not been arrested.
This bill passed both the House and Senate unanimously.
Libertas Institute supports this bill.
Throughout Utah, public schools are using computer services that collect and store information about or input by a student. This practice is loosely governed, if at all, by outdated protections and lack of oversight for the student’s privacy and restrictions on the companies and government entities that have access to the highly personal information.
In an effort to impose limitations on how such information can be collected, stored, and shared, Representative Jake Anderegg has sponsored House Bill 358 which would enact widespread regulations on school entities regarding student data.
Third party entities that collect student data are required to do so according to the same standards imposed upon the government. Contractors that violate the privacy protections associated with student data would be subject to a private cause of action on the part of a parent or student who, if victorious in court, may be awarded damages and attorney fees.
This lengthy bill reflects months of negotiation and discussion with various stakeholders and is a reasonable step forward to impose restrictions on a massive industry; student data has become a lucrative business both for governments and private parties. As such, guidelines are needed to determine the responsible and appropriate use of this information collected on students throughout the government school system.
Utah law affirms that “the state’s role is secondary and supportive to the primary role of a parent.” If you’re a parent of a child in public school, this is more theory than practice—without your consent, and likely without your knowledge, the state is collecting large amounts of data on your child in a centralized database, and sharing that information with corporations and the federal government.
In 2009, former Governor Jon Huntsman signed an application to the U.S. Department of Education, the purpose of which was to obtain federal “stimulus” dollars. Without legislative authorization or guarantee, the Governor unilaterally made four assurances to the federal government—a required step in order to receive any money. Among other policy commitments, the assurances included a binding promise to “establish a longitudinal data system.” Within a year’s time, Utah had been showered with $742 million through the American Recovery and Reinvestment Act.
Utah lawmakers—and thus the public at large—were left out of the loop. This trend continued, with the Utah State Office of Education receiving a $9.6 million grant to create the Utah Data Alliance—a conglomerate of state agencies managing the database with your child’s information. Their operations are not governed by state or federal law, but only by the promises made in the grant application and a “memorandum of understanding” between Alliance members.
Last week, Sam DuBose was shot in the face and killed by a University of Cincinnati police officer, Ray Tensing, after being pulled over for not having a front license plate on his vehicle. Today, the officer was indicted for murder—a result that would not have happened, were it not for the officer’s body camera.
Officer Tensing’s statement to the reporting police officer affirms that Tensing “began to be dragged by a male black driver who was operating a 1998 Green Honda Accord.” Tensing claims that “he almost was run over by the driver of the Honda Accord and was forced to shoot the driver with his duty weapon.”
Another officer, Phillip Kidd, offered corroborating testimony to the reporting officer, affirming that he “witnessed the Honda Accord drag Officer Tensing, and that he witnessed Officer Tensing [subsequently] fire a single shot.”
Both officers lied.
In an age where every cell phone user is a potential videographer, police tactics have come under increased scrutiny from the public as headlines of law enforcement confrontations gone wrong are captured by citizen bystanders. These stories underscore the growing call for reforms in policing tactics and transparency through department-issued body-worn cameras for officers. Some want to see increased use of body cameras, including mandates for their use all police departments, in the hopes that such transparency will yield a reduction in incidents of force.
Studies in Rialto, California, and elsewhere have shown the benefits of body camera programs—including significant reductions in use of force incidents. For this reason, many police departments are adopting the use of this new technology. The cameras not only help bring transparency and accountability for police actions, but more often than not, they show the good work officers do and frequently exonerate officers against false complaints. Camera footage can also be used as evidence in criminal proceedings and is more reliable than any one officer’s or witness’ memory of events. However, cameras also pose a number of unique challenges. These challenges mean that policies governing the use of cameras need to be well thought out, well written, and enforceable to ensure that cameras are used effectively and in a manner that protect the rights of all involved.
Libertas Institute has put in hundreds of man hours behind the scenes in an ongoing effort to develop and implement such policies in Utah. While the potential benefits of cameras are clear, we do not favor an approach that mandates all departments use them; implementation is very costly. The public budgets that govern police expenditures should control the decision-making process for each department. However, the inevitability is that law enforcement agencies see the immense value of cameras and adopt their use in the absence of a mandate to do so. As this has happened in recent years, the policies that govern the use of body cameras vary from department to department. While this might be reasonable for policies governing other equipment like vehicles or handcuffs, when the privacy rights of all Utahns are at stake—and when officers are often, if not primarily, enforcing state laws—it becomes a state issue.
This bill was not considered by the legislature.
Libertas Institute supports this bill.
Libertas Institute spent hundreds of man hours over the past year working on a comprehensive proposal for the use of body cameras in Utah. This effort, in conjunction with community partners and civil liberties allies like the Utah chapter of ACLU and the Utah Association of Criminal Defense Lawyers, has culminated in House Bill 386, sponsored by Representative Dan McCay.
This bill would set statewide minimum standards for the use of body cameras in Utah protecting the rights of all Utahns and providing predictability in the use of police body cameras.
This bill passed the Senate unanimously and passed the House 55-17. It was subsequently signed into law by Governor Herbert.
Libertas Institute supports this bill.
In 2013, some employees of the Unified Fire Authority (Utah’s largest fire agency) discovered that some vials of morphine stored in ambulances at a few fire stations had been emptied of their contents. The police were alerted, as theft was suspected—but instead of interviewing people who had access to those ambulances, the Cottonwood Heights Police Department searched and downloaded the prescription drug histories of every employee of the Unified Fire Authority. No warrant was issued in this search.
A related lawsuit filed afterward sought to suppress the evidence, arguing that the warrantless search violated the Fourth Amendment. The court recently ruled in the defendant’s favor, and the state dropped its appeal; this is a victory for the Fourth Amendment.
In a unanimous opinion announced earlier today, the U.S. Supreme Court ruled that police officers must obtain a warrant to search a cell phone that is seized incident to an arrest.
The case stemmed from the 2009 arrest of David Riley in California on a traffic stop that found loaded firearms in his car. The officers subsequently seized Riley’s cell phone and searched through his messages, contacts, videos, and photos. Tipped off by information they found in that search, the officers charged Riley with an unrelated shooting that took place several weeks earlier.
Riley attempted to suppress the evidence officers had found on his phone, arguing a violation of his Fourth Amendment rights. The trial court disagreed, as did the appellate court, claiming that the “search incident to arrest” doctrine—used historically to ensure that a person did not have any weapons or contraband on them while in the custody of police—permitted officers to conduct a search of a seized cell phone, even if that search is conducted later and at a different location than the arrest.
Today’s ruling by the U.S. Supreme Court overturns this argument. Chief Justice John G. Roberts Jr., writing for the unanimous court, stated:
Today the Eleventh Circuit Court of Appeals issued an opinion in the case of United States v. Quartavious Davis that may impact the policy landscape relative to fourth amendment application in the digital age.
The case was brought about after government agents obtained the cell phone location information of four people over a two month period in 2010 as part of a criminal investigation in Florida. The records were obtained without a warrant. Police received 11,606 location records of one of the suspects, Quartavious Davis, averaging 173 location points each day. Davis was convicted at trial based on this information, and appealed his ruling to the Eleventh Circuit Court. Today’s opinion is the first time a federal appeals court has ruled that a warrant is required to obtain cell phone location data.
“There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute,” the three-judge panel wrote in a unanimous opinion. “In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.” While the court’s ruling applies only to Florida, Georgia, and Alabama, it may very well be referenced and used in other court cases navigating through the judicial system.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —Fourth Amendment to the U.S. Constitution
Imagine government authorities monitoring your every movement in addition to your every word. Of course, this is now easier to imagine in our post-Snowden world. Fiction meets reality in local law enforcement, for example with technology allowing police officers to indirectly tap your cell phone by fooling it into thinking that their suitcase-sized surveillance device was the nearest cell phone tower. Taking a page out of the NSA playbook, law enforcement agencies around the country are acquiring and using this new technology.
The device mentioned above—one of many technological tools enabling surveillance of the citizenry—is known as a “Stingray.” This telecommunications device intercepts mobile communications by funneling all nearby connections through itself before passing them on to actual cell phone towers. It is highly portable and can be deployed anywhere. It has the ability to allow law enforcement to not only obtain cell phone location data—something they already obtain quite routinely from telecom service providers—but also call records and text message logs. While the specific devices known to the public are not supposed to be able to obtain call or text content, the reality is that we live in an age when such capabilities exist, even if not currently used. While some police agencies and investigators recognize the need to obtain a warrant for this activity, many do not; research indicates that warrants are not being obtained consistently for the implementation of this technology.