Habeas Data_Privacy vs. The Rise of Surveillance Tech Read online

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  Several months later, in April 2015, the New York Civil Liberties Union (the New York State chapter of the ACLU) managed to do what no one else could: successfully sue to obtain an unredacted copy of the NDA that the FBI had law enforcement agencies sign when they acquired stingrays.

  In essence, the document explained that due to the authorization granted by the Federal Communications Commission to the Harris Corporation, the law enforcement agency had to sign an NDA with the FBI. The six-page letter essentially said that agencies that acquired stingrays could not talk about them “in any manner including but not limited to: press releases, in court documents, during judicial hearings, or during other public forums or proceedings.”

  In short, keeping courts, lawyers, and lawmakers in the dark about exactly what stingrays were and how they worked was entirely deliberate. When Ars Technica asked the FBI for comment, the news outlet was told that without this secret tool, bad guys would basically go free.

  “This knowledge could easily lead to the development and employment of countermeasures to FBI tools and investigative techniques by subjects of investigations and completely disarm law enforcement’s ability to obtain technology-based surveillance data in criminal investigations,” Bradley Morrison, chief of the Tracking Technology Unit at the FBI, said in an April 2014 affidavit.

  However, government secrecy in law enforcement is anathema to American democracy. Wiretaps have been regulated for 50 years now, and yet they continue to be effective. Most people, having learned about them in television shows like The Wire, are fully aware of this element of law enforcement. However, no one has ever argued—nor was it argued at the time—that the existence of wiretaps should be kept entirely secret from judges and the public.

  In May 2015, the FBI issued a bizarre public statement saying that despite the NDA’s language to the contrary, it “should not be construed to prevent a law enforcement officer from disclosing to the court or a prosecutor the fact that this technology was used in a particular case.”

  Later that same month, Washington governor Jay Inslee signed a bill that passed both houses of the state legislature specifically requiring that law enforcement seek a warrant before using a stingray. Rigmaiden worked on the drafting of this bill with Jared Friend of the ACLU of Washington. (Before its passage, Soghoian even testified in support of the bill.)

  While Washington was not the first state to impose such a law, it had passed one of the most comprehensive—the law codified extra requirements requiring that police fully describe the technology and its impact in detail to judges—presumably despite any NDA that those agencies may have with the FBI and the dominant manufacturer of the devices, Harris Corporation. Months later, California followed suit, with its comprehensive California Electronic Communications Privacy Act (covered in Chapter 6), which, among other things, also required a warrant for stingray use.

  But the most prominent change regarding stingrays came in September 2015, when the DOJ said it would require a warrant in most situations.

  The policy, which took effect the day it was announced (September 3, 2015), applied to numerous agencies, including the FBI; the Bureau of Alcohol, Tobacco and Firearms; the Drug Enforcement Administration; and the US Marshals Service, among others.

  “Cell-site simulator technology has been instrumental in aiding law enforcement in a broad array of investigations, including kidnappings, fugitive investigations and complicated narcotics cases,” Deputy Attorney General Sally Quillian Yates said in a statement. “This new policy ensures our protocols for this technology are consistent, well-managed and respectful of individuals’ privacy and civil liberties.”

  The Department of Homeland Security followed suit the next month.

  The new state laws and federal policies came as a result of dogged activism by the ACLU and other privacy groups, which all stemmed from Rigmaiden. After all, it was Rigmaiden who had initially reached out to Soghoian and presented him with a 200-page memo on a technology that few outside the government had known about.

  “It was the most well-researched memo I’d ever seen on this technology,” Soghoian later told WNYC. “Written by a guy rotting in jail.”

  Now that lawyers know what to look for and how to challenge them, some of those efforts have been successful. Notably, in March 2016 a state appellate court in Maryland took local law enforcement to task, and ruled unequivocally: “We determine that cell phone users have an objectively reasonable expectation that their cell phones will not be used as real-time tracking devices through the direct and active interference of law enforcement.”

  The three-judge panel in the State of Maryland v. Andrews case also blasted law enforcement’s blanket use of NDAs for stingray acquisition, noting that they were “inimical to the constitutional principles we revere.”

  In June 2016, Santa Clara County, California, in the heart of Silicon Valley—where Rigmaiden was arrested—became the first county in the United States to vote in a new law that requires “continued oversight and regular evaluation” of law enforcement agencies prior to the acquisition of surveillance technology. The ordinance, which was unanimously approved by the Santa Clara County Board of Supervisors, requires that the county sheriff and district attorney’s offices seek board approval before those agencies even begin the process of obtaining new snooping gear. The agencies are not required to immediately notify the board in exigent circumstances, but they must do so within 90 days.

  Agencies must also submit a usage policy to the county government and, notably, an annual surveillance report, which should describe what data the device captures, how the agency deals with information collected about people not suspected of any wrongdoing, and whether the gear has been effective, among other requirements.

  “The ordinance doesn’t prohibit the acquisition of any surveillance technology,” Supervisor Joe Simitian, a longstanding local privacy advocate and former state senator, told me. “It says if you’re going to acquire any surveillance technology, let’s talk about privacy and due process rights. The issue is not the technology. The question is whether or not we have the wisdom to use the technology appropriately.”

  Although Rigmaiden has since moved from Arizona to Florida to work as a freelance Web developer, his name continues to occasionally ring out in legal filings and courtrooms nationwide in regard to stingray cases.

  In August 2016, his case was cited in a formal legal complaint by Laura Moy, a Georgetown law professor, to the FCC. Moy argued on behalf of her clients, a handful of advocacy organizations, that because stingrays act as fake cell towers, law enforcement agencies are, in effect, broadcasting without the proper spectrum licenses. Worse still, when deployed, legitimate cell service, including 911 calls, are disrupted in the area. (As of late 2017, this case remains pending before the FCC.)

  Just three months later, in November 2016, years after stingrays were first used by law enforcement, their use finally reached a federal appeals court. In United States v. Patrick, the 7th US Circuit Court of Appeals ruled that law enforcement’s warrantless use of a stingray against a man wanted on a probation violation was allowed—but the court dodged the larger question as to whether stingray use required a warrant in all cases.

  Rigmaiden’s name was also invoked in an August 2017 ruling in an attempted murder case in Oakland, California. In the 39-page ruling, US District Judge Phyllis Hamilton notably found that the January 2013 use of a stingray to find a suspect named Purvis Ellis was a search under the Fourth Amendment. So, law enforcement should have gotten a warrant. However, in this particular case, exigent circumstances (one of the crucial exceptions to the warrant requirement) dictated that the police did not need one and the search was allowed.

  “Cell phone users have an expectation of privacy in their cell phone location in real time and…society is prepared to recognize that expectation as reasonable,” Judge Hamilton wrote, citing Katz v. United States.

  In September 2017, the District of Columbia C
ourt of Appeals, the functional equivalent of a state supreme court for the nation’s capital region, agreed. “A person’s awareness that the government can locate and track him or her using his or her cellphone likewise should not be sufficient to negate the person’s otherwise legitimate expectation of privacy,” the majority concluded.

  In other words, judges seem to be resoundingly echoing the 1967-era language of Katz, finding that the use of a stingray—a technology kept hidden for years—did require a warrant. Those judges have found that there is a “reasonable expectation of privacy” in one’s location. But as of this writing, no cases challenging the use of stingrays have reached the Supreme Court, so this legal theory hasn’t been cemented just yet.

  What these judges have realized is that there is now a turning point with respect to smartphones: we carry them with us and they hold all of our secrets. No wonder the police find them valuable during an investigation. But should the police need to get a warrant to get into our phones?

  CHAPTER NINE

  Can Police Search Your Phone When You’re Arrested?

  We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one’s person.

  —SMALLWOOD V. FLORIDA

  SUPREME COURT OF FLORIDA OPINION

  MAY 2, 2013

  August 22, 2009

  San Diego, California

  The intersection of Euclid and Imperial avenues is fairly unremarkable. It’s comprised of wide Southern California streets, with at least two lanes of traffic (more if you include the left-turn lanes) in each quadrant. On one corner is an Arco gas station, just in front of St. Rita’s Catholic Church. On the northeast corner is Greene Cat Liquors, a strip mall liquor store, adjacent to Jaquin Mexican Food, which advertises $1 tacos (“W/ ONION AND CILANTRO ONLY”). Along the southwest corner is El Real Mexican Food, a single-story green-and-white building with a small balcony. Its sandwich board advertises “5 rolled tacos—$4.25.”

  This was where David Leon Riley, 19, was driving very early in the morning before being pulled over by San Diego police officer Charles Dunnigan. The cop told Riley that he’d pulled him over for having expired registration tags. Dunnigan asked for Riley’s driver’s license, but it was expired. Dunnigan then asked Riley to step out of the car. The young man complied and started to reach for his right pocket—Dunnigan barked at him to stop. Riley tried to explain that he was merely trying to grab his cell phone (which was later found in the car), and admitted to the cop that he had been arrested previously on weapons charges. Dunnigan frisked Riley, and found no weapons. However, he did find a green bandana and two miniature Converse sneakers on his keychain—one red and one green.

  By this point, one of Dunnigan’s colleagues, Officer Matthew Ruggiero, had arrived. The two cops made a crucial determination based on the colors found on Riley’s person. They believed that these were the colors commonly used to identify membership in the Lincoln Park Bloods. The gang claims turf in this particular neighborhood of southeastern San Diego, squarely a historic African-American neighborhood that had been subjected to redlining decades earlier.

  Dunnigan decided to arrest Riley, suspecting him of being a gang member. Then, the officers began to impound the Lexus, citing department policy. With Dunnigan standing next to Riley, Ruggiero began performing an inventory search on the car. This is a standard search where officers are allowed to conduct a cursory check as to the particular items found in the car—the list can be relied upon later after an impounded vehicle is returned. However, in this case, the inventory search unusually happened on the spot, and the Lexus was never towed.

  Ruggiero began looking through the inside of the car. The officer opened the hood—a highly unusual move—where he found two handguns tucked inside socks. At that point, things started to escalate. Dunnigan grabbed Riley’s phone, a Samsung SPH-M800, an early smartphone designed to compete with the first iPhone. As Dunnigan scrolled through the phone, the officer could see that all contacts in the phonebook starting with the letter “k” had a letter “c” in front of them. This, the police believed, confirmed their suspicion that Riley was a gang member: “ck” is common gang slang for “Crip Killer.”

  The officers took Riley downtown for booking. The two officers invited Detective Duane Malinowski, who was off-duty that day, to have a look at this new suspect. Malinowski was investigating a shooting incident that took place on August 2, 2009, near Riley’s traffic stop.

  But after being read his Miranda rights, Riley refused to speak. Malinowski then got ahold of Riley’s phone, where he found “a lot of stuff” on the candy bar–shaped phone, including videos of street fights, and what he thought was Riley’s voice encouraging the fighters (“Get brackin’ Blood!”) and more.

  A search incident to arrest is one of the well-understood exceptions to the usual warrant requirement. The idea for this is straightforward: officers taking a suspect into custody want to make sure that he or she is not going to destroy evidence, or have a weapon that could be harmful to the officer.

  When Riley went to trial, prosecutors introduced evidence taken from the phone searches that day. There were photos of Riley flashing what police believed to be gang signs. The government argued that this showed Riley’s connection to the earlier shooting: he was charged with attempted murder, assault with a semi-automatic weapon, and more. Plus, ballistics tests of the guns found in the socks matched shell casings found at the scene of the August 2 shooting.

  Riley’s first trial resulted in a hung jury. And it would take nearly five years after Riley’s arrest for the Supreme Court to weigh in on whether the warrantless searches of Riley’s phone were unconstitutional. Along with United States v. Jones, Riley would become one of the most important Fourth Amendment Supreme Court decisions in recent years.

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  In January 2011, the San Diego officers’ practice was enshrined by the California Supreme Court. In People v. Diaz, the Golden State’s highest court found that such searches of phones incident to arrest were authorized as an exception to the warrant rule. The case dated back to 2007, when a man, Gregory Diaz, in Ventura County, California, was observed by sheriff’s deputies as buying ecstasy from a police informant who was wearing a wire. Diaz’ phone was later seized, and police began reading his text messages without even trying to get a warrant. He and his attorneys challenged the search, but in 2011, the California Supreme Court eventually ruled in favor of law enforcement. That ruling came over the objection of a single member of the high court, Justice Kathryn Werdegar, a Republican appointee.

  “In my view, electronic communication and data storage devices carried on the person—cellular phones, smartphones and handheld computer—are not sufficiently analogous to the clothing considered in [United States v.] Edwards or the crumpled cigarette package in [United States v.] Robinson to justify a blanket exception to the Fourth Amendment’s warrant requirement,” she wrote, referring to decades-old Supreme Court precedents.

  Justice Werdegar was referring to the 5–4 decision in Edwards, a 1974 Supreme Court case involving the clothing of a suspected burglar that was seized and warrantlessly searched. In that case, the suspect was arrested late one night while trying to break into a post office in Lebanon, Ohio. The next day, 10 hours after he was taken into custody, he was ordered to surrender his clothing in exchange for new clothes purchased by the jail. The clothes that he had been wearing during the burglary were taken and eventually found to contain the same type of paint chips that were found on the post office’s busted window.

  The Supreme Court ruled that this warrantless search was entirely appropriate even if it took 10 hours to give Edwards new clothes.

  “The intrusion here was hardly a shocking one, and it cannot be said that the police acted in bad faith,” Justice Potter Stewart wrote in the dissenting opinion. “The Fourth Amend
ment, however, was not designed to apply only to situations where the intrusion is massive and the violation of privacy shockingly flagrant.”

  Justice Stewart, of course, was the same justice that a young Larry Tribe had persuaded to rule in Katz’ favor seven years earlier.

  Robinson, a 1973 decision, revolved around a Washington, DC, man who was arrested for driving with a suspended license. During that traffic stop, which led to his arrest, Willie Robinson was patted down by a Metropolitan Police Department officer. The cop found a crumpled package of cigarettes on Robinson’s person, and when the police officer opened it up, he found heroin inside—and Robinson was prosecuted accordingly. Ultimately the Supreme Court ruled in a 6–3 decision that it was, in fact, a reasonable search.

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  In the summer of 2011, just a few months after the Diaz ruling had come down, Riley was tried again. He was convicted and sentenced to 15 years to life. But before being sent off to a state prison to serve his sentence, Riley made a decisive phone call from the San Diego Central Jail.

  The man who picked up the phone was Pat Ford. A silver-haired veteran defense lawyer based in downtown San Diego, he specialized in criminal appeals. Ford works almost entirely on cases in Southern California. Sometimes he’s selected as a court-appointed attorney, but, as he told me, more often gets paid by clients “whose families make great sacrifices to hire a private lawyer.”

  Ford is perhaps best known in the legal community for the California Criminal Law Reporter. Since 1983, he has summarized every published opinion in the state and provided these digests as a paid service to attorneys. As of September 2017, Ford charges $225 per year.

  Riley wanted to hire Ford as his appeals attorney. After Riley explained the case, Ford headed to the jail to meet his prospective client—less than a mile south of his office. Within just a few minutes of meeting Riley, Ford agreed to take the case.