Utah needs a constitutional amendment to protect electronic data

August 4, 2017  |  Posted in: Op-Eds  |  No comments

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.

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The Utah Legislature said NO to REAL ID—So Why is the State Now Fully Compliant?

January 5, 2016  |  Posted in: Center for Individual Liberty  |  7 comments

Starting this year, the U.S. Department of Homeland Security is threatening that the TSA will begin rejecting driver’s licenses from states that refused to comply with the federal REAL ID guidelines. This now sets the stage for a significant battle over federal power and state’s rights—a battle Utah quietly bowed out of. While this is likely just more posturing by DHS to enforce deadlines it has constantly been extending in order to save face, it also serves as a not-so-gentle reminder of the expansion of federal power in the name of security.

In the wake of 9/11, Congress passed the REAL ID Act of 2005. The Act created a list of security mandates for state-issued driver’s licenses, effectively creating a nationally standardized ID card. Because Congress has no constitutional authority to legislate in this area, the implementation was predicated on a threat from the federal government that any non-compliant driver’s license would be rejected as an official form of identification for any federal purpose—including admittance to secure government facilities like military bases and TSA screenings at the airport. The statutory deadline for state compliance was originally May 2008. However, by that time not a single state was in compliance and nearly twenty states had passed laws or resolutions rejecting REAL ID. Utah joined the list with a resolution in 2009. Now, eight years later, the federal government is finally saying it will clamp down as it prepares to act on its threats.

In 2010, the legislature instructed the state to refuse to comply with REAL ID. However, by that time, it was too late for most of the substantive requirements of the law. In 2008, Senate Bill 81 required proof of citizenship for the creation of any state-issued government identification. This bill was designed to prevent immigrants without legal status from gaining government identification cards. The next year, the legislature passed Senate Bill 40 which gave driving privilege cards to Utahns without legal immigration status instead of Utah driver’s licenses which are reserved for those with citizenship or legal status. This required proving legal immigration status to the driver’s license office before being approved for a Utah license. Together, these two measures undermined Utah’s effort to opt-out of REAL ID, as the identity verification requirements under these bills pushed Utah into material compliance with many of the provisions of REAL ID.

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Police Body Cameras in Utah

June 15, 2015  |  Posted in: Center for Free Enterprise  |  One comment

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.

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HB386: Creating Statewide Guidelines for Police Body Cameras

February 24, 2015  |  Posted in:  |  One comment

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.

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SB226: Requiring a Warrant for Police to See Through Our Walls

February 18, 2015  |  Posted in:  |  One comment

This bill passed both chambers of the legislature unanimously and was signed into law by Governor Herbert.

Libertas Institute supports this bill.

A 2001 U.S. Supreme Court case, Kylio v. U.S., addressed the use of thermal imaging devices by law enforcement officials, and the ruling held that such devices could not be used without a warrant as they constituted a search.

“Where… the government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant,” the majority opinion reads.

Interestingly, the ruling anticipated the development of more refined technology and held that the court “must take account of more sophisticated systems that are already in use or in development,” referring to radar technology that would be far more detailed than blurry thermal images, which would “enable law officers to detect individuals through interior building walls.”

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HB150: Prohibiting Support for the NSA in Utah

January 22, 2015  |  Posted in:  |  4 comments

This bill was not considered by the legislature.

Libertas Institute supports this bill.

Last year, Representative Marc Roberts sponsored legislation to prohibit political subdivisions in Utah (cities, counties, etc.) from providing assistance to the National Security Agency (NSA). That bill was heard in committee and referred for interim study, where it was again presented to a legislative committee for discussion.

Despite recent opposition from the Governor, who expressed support for the agency’s operations in the state, Rep. Roberts has again introduced his bill in hopes of withdrawing support for federal agencies that engage in widespread surveillance of innocent Americans.

House Bill 150 would require that the water being supplied to the NSA’s data center in Bluffdale be shut off as soon as the city’s $3 million bond is paid off.

Under the bill, political subdivisions may not:

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Governor Supports Keeping NSA in Utah

January 6, 2015  |  Posted in: Center for Individual Liberty  |  4 comments

Legislation introduced last year by Representative Marc Roberts sought to prevent material assistance in the state of Utah to the National Security Agency (NSA) for its warrantless surveillance of innocent individuals. Last year’s bill received discussion during an interim session this past fall, and may be re-introduced in the 2015 general session.

Asked about this effort today, Governor Gary Herbert told reporters, “I know people have had some frustration with the NSA,” but that the state’s agreement with the NSA was “something I think we need to continue to honor.”

The Utah Data Center has been the subject of widespread reporting. In our exclusive interview with Bill Binney, a 30-year NSA employee turned whistleblower, he indicated that the storage facility was created to retain every bit of digital information about people possible “in the hopes of retroactively going back and analyzing it sometime in the future to figure out what’s important.”

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Protecting The 4th Amendment In the Digital Age

March 25, 2014  |  Posted in: Center for Individual Liberty  |  No comments

“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.

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Utah legislators stood up for Fourth Amendment

March 16, 2014  |  Posted in: Op-Eds  |  One comment

The following op-ed was published in the Salt Lake Tribune.

While the Utah legislature was divided this year when it came to issues such as air quality, same-sex marriage, Count My Vote, or education, the Fourth Amendment to the U.S. Constitution is one place where legislators found common ground.

We live in an age when the principles this clause was intended to protect are under constant threat. For example, the many beneficial technological advances we enjoy often come at the expense of our privacy.  Additionally, the trend of militarizing police officers means that tactics and weapons designed for overseas combat are being deployed in our communities.

Four key pieces of legislation, each rooted in the Fourth Amendment, worked their way through both the Utah House and Senate with relative ease. Both of our organizations were involved in the drafting and promoting of these bills, and we strongly believe that once signed into law by the Governor, they will make Utah a better state.

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HB161: Prohibiting Support for the NSA

February 24, 2014  |  Posted in:  |  No comments

This bill was referred by the committee to interim study. Visit our Legislative Index to see the final vote rankings for the 2014 general session.

Libertas Institute supports this bill.

When the NSA facility was proposed in Utah, Governor Herbert was promised that its activities would be in line with the provisions of the U.S. Constitution, most specifically the Fourth Amendment which requires probable cause, a warrant, and a specific description of a person’s alleged crime. As we all now know, in light of the Edward Snowden leaks, that promise has been institutionally violated by the NSA.

And yet, the NSA facility remains in operation in Bluffdale, Utah—a city that has entered into a contract to provide the federal government with over a million gallons of water per day to cool its servers.

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