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Protester Surveillance May Test Constitutional Privacy in Courts – Bloomberg Law


Protests over racial inequality are exposing tensions between law enforcement access to digital data and citizen rights against unwarranted searches, which may force courts to grapple with how to protect people’s privacy.

Law enforcement use of social media posts, drones, cameras, and cell location data catchers called “dirtboxes” during the civil unrest related to the George Floyd protests may push federal courts to expand Fourth Amendment protections to digital data, like geolocation and real-time mobile information. As police surveillance tactics change, constitutional privacy protections are likely to evolve as well.

Courts will have to “see how it all shakes out and how law enforcement is using technology to get information during civil unrest,” said Robert Litt, counsel at Morrison & Foerster and former general counsel for the Director of National Intelligence. “Nobody in law enforcement should be comfortable that the rules they were applying 10 years ago will be the rules that will apply today.”

‘A Lot of Ferment’

The possible shift in the courts’ thinking comes as advocates and citizens are concerned about how law enforcement might use technology to surveil protesters. They say more protections are needed, either through the courts or new legislation, to guard against government overreach into the daily lives of U.S. residents.

“Police departments try to hide the use of particular tools” they use, so protesters are “never aware that a given technology was used to identify them,” said Ángel Díaz, counsel in the Liberty & National Security Program for the Brennan Center for Justice.

Already some courts have changed their views on how digital information is protected under the Fourth Amendment. The amendment limits law enforcement’s access to information that citizens would reasonably expect to remain private in the absence of a warrant or court order.

A 2018 Supreme Court decision in Carpenter v. United States expanded protections to historical cell phone site location information records, which can help police see who was in a certain location in a given time using mobile tower data. Federal and state courts later expanded the protections to geolocation data and other information that shows intimate aspects of a person’s life.

The high court left room for future panels to consider whether third parties, including telephone and communications companies, may turn over data without a warrant. Companies like Facebook Inc. and Apple Inc. say they’ll only turn over data under a valid court-ordered law enforcement request.

“Most people think that Carpenter isn’t going to be the stopping point in Fourth Amendment law,” said Litt, questioning whether the ability to get data from third parties will be allowed. “It’s clear there is a lot of ferment” around Fourth Amendment protections for new technologies, he said.

Demonstrators hold a sign in front of the governor’s mansion during a “Bar Lives Matter” protest in Austin, Texas.

Photographer: Sergio Flores/Bloomberg

Police Surveillance

A lot of the data law enforcement is obtaining on protesters “falls under the public domain,” said James Trusty, member at Ifrah Law and former chief of DOJ’s organized crime section. Law enforcement efforts “that put them in a position to observe public posting or behavior is not problematic from a constitutional point of view,” he said.

Police can generally get data without a warrant if it is publicly available. Law enforcement can also use drones flown over crowds because people lack a reasonable expectation of privacy in public places.

Social media has been used to obtain information on protesters during the ongoing civil unrest. The Intercept earlier this month obtained documents revealing that Dataminr, an artificial intelligence company, used tweets, hashtags and other social media content to tip off law enforcement to demonstrator whereabouts and actions surrounding Black Lives Matter and George Floyd protests.

The San Francisco Police Department is using business improvement district cameras, which are public but operated by a non-profit, to conduct mass surveillance on the ongoing demonstrations and requested footage surrounding the areas of alleged looting and assaults, the Electronic Frontier Foundation found. Long Beach Police are also asking citizens to upload video and photo “evidence of criminal activity from recent civil unrest incidents,” according to their website.

The Long Beach Police Department said in a May 31 statement that their “Looting Task Force” has led to 14 arrests and 28 arrest warrants, and another 15 cases have been referred to their district attorney. The task-force used video and photo evidence collected from sources including business and residential surveillance systems, social media and news coverage, the statement said.

Speaking to First Amendment rights, the LBPD “is here to help facilitate those rights, and we are concerned about the safety of our community and protesters alike. Our priority is to ensure everyone is safe and if individuals want to demonstrate, we ask that they abide by all traffic laws and refrain from criminal activity. We as a Police Department are here to help their voices be heard,” said Arantxa Chavarria, public information office for the Long Beach Police Department.

The San Francisco Police Department didn’t immediately respond to a request for comment.

Civil Unrest

“As soon as someone on the periphery commits some crime, they’ll use that as a pretext to start gathering cellphone information and geolocation data,” said Dave Maass, senior investigative researcher at EFF.

Advocates worry that collecting data on protesters touches members of communities of color more than others as they are “being surveilled for the rights of their community,” said Dominique Harrison, project director at the Aspen Institute and leader of the Tech X Talent project, which promotes diversity in technology.

“It’s troubling” that this data can be captured and “used by cops to make their own cases against someone who can be peacefully protesting,” Harrison said.

“Whether it’s because you have a relative that is undocumented, or someone in your family has a criminal history, you don’t want to attract police attention because of the protest,” Díaz said.

“A lot of the surveillance that people are talking about, and are rightfully focused on during the protests, should concern people because that technology is used all the time, but is usually used to go after marginalized communities,” Díaz said.

Evolving Courts

Some federal and state courts have started to add protections to gathering information about geolocation and cell-tower data.

The Pennsylvania Supreme Court ruled in July 2019 that police must get a warrant to collect real-time cell tower data, and the Kentucky Appeals Court ruled Feb. 7 in Reed v. Commonwealth that people have a reasonable expectation of privacy in real-time cell tower data.

The U.S. District Court for the Southern District of Georgia found in February 2019 that Carpenter added protections for real-time cell tower data collection. The ACLU is also looking to expand those protections to mobile scooter data, according to court papers filed June 8 in the U.S. District Court for the Central District of California.

To be sure, not all courts are expanding protections to real-time data in all situations. The U.S. District Court for the Eastern District of North Carolina ruled July 20 that large-scale collection of data from a cell tower didn’t run afoul of the Fourth Amendment, and the U.S. Court of Appeals for the First Circuit refused to find a reasonable expectation of privacy in images captured from pole cameras, according to a June 16 opinion in United States v. Moore-Bush.

Growing Realism?

While taking photos of people in the street using drones, pole cameras, and facial recognition technology may not get further court protections, cell tower data over a longer period of time would definitely cause problems under the Fourth Amendment, Litt said.

There, however, is a “growing realism by courts about how intrusive these searches can be,” Trusty said. “Courts are more sensitive to the fact that you forfeit in every bit in their private life because it’s on a phone or a laptop,” he said.

Meanwhile, some law enforcement officials don’t want to push the boundaries, especially during civil unrest, because it could lead to losing down the line in more high-profile cases.

Police should take caution at the edges of new technology because of Fourth Amendment concerns, said Mark Vargo, state’s attorney for Pennington County, S.D. It “doesn’t make sense to use this technology in lower-level cases that may increase the amount of courts that have control and increase the opportunity” to strike it down, he said.

Courts may revisit how police use cutting edge technology and whether the change in how law enforcement processes that information constitutes something new and different, said Vargo, who recently handled protests over President Donald J. Trump’s July 3 speech at Mount Rushmore.

Vargo said that as searches get “more and more intrusive, and the more we know about you, it’s going to be a thing that is far beyond what the Fourth Amendment contemplated.”



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