Surveillance, Grown Up: Broader and Deeper than Eavesdropping of Yore
The revelations of mass global surveillance in recent years by the United States and its global partners have exposed a dramatic shift in how law enforcement and intelligence agencies conduct and justify surveillance activities. Modern surveillance has gone from passive capture of signals to active interference with devices, systems, networks, and communications; from targeted scrutiny of individuals to surveillance of millions in bulk; from examining basic communications content and metadata to fundamentally intrusive analytical techniques. All of these changes are occurring over a backdrop of rapid changes in communications technologies and services that have rendered legal distinctions between foreign and domestic communications artificial and unworkable.
Of Drones, Phones and Privacy Zones
- Data – ranging from email logs to tax returns – are stored increasingly by third parties, and under the business records doctrine, may not be subject to Fourth Amendment protection.
- More and more of the digital footprints people leave behind as they go through life is available to the government, and it is getting better at analyzing these bits of personal information to draw inferences, and the 4th Amendment has little to say about it.
- Law enforcement agencies can fly drones to look for criminals and evidence of crime, and in public spaces, the Fourth Amendment will likely be interpreted to permit such warrantless surveillance.
- Perhaps the primary means of communication in the digital age – the smart phone – is also a little tracking device revealing its user’s location from moment to moment.
- The airport searches that used to be conducted by means of a slightly intrusive search for metal objects by a magnetometer have grown into full blown electronic strip searches that reveal objects underneath a passenger’s clothing, with no warrant required.
Six Months’ Probation for a Crime Carrying a 4-year Minimum Sentence
That’s the unusual plea deal that Tadrae McKenzie struck earlier this year in a case involving a “stingray” – a controversial device being used by law enforcement around the country to track individuals’ movements and phone calls.
American Civil Liberties Union
Uncovering Secret Surveillance
It’s hard to read the newspaper these days without coming across an article describing yet another powerful government surveillance tool, often one that has been used for years without being disclosed to the public. The most striking recent example is the use of stingray surveillance devices by local law enforcement around the country. The secrecy has been so thick in part because the FBI requires law enforcement agencies to sign non-disclosure agreements before acquiring stingrays. In this sort of environment, what’s a diligent criminal defense attorney to do?