In the 14 months since Edward Snowden’s first National Security Agency (NSA) leaks, the whole world has learned the meaning of metadata, and has been given a clearer picture of the dangers of wide, broad surveillance mechanisms.
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But our privacy is not being endangered only by the NSA. Nor is the NSA the only government outfit kicking and screaming in the face of public accountability.
Other federal agencies — from the FBI, to the CIA, to the DEA — might fill in the gaps that might result from a reining in of the NSA. And they are in many ways just as unwilling to have a light shined on their dirty dealings.
Given that alphabet soup, it’s easy to forget the dangers of local law enforcement agencies.
Local police have their own spying enterprises, particularly large ones like the New York Police Department, which spent more than a decade spying on New York City and New Jersey Muslim communities (with help from the CIA). It took an AP story to bring this campaign to light, and even when this was exposed, the NYPD denied that it was systematic, or something that might qualify as domestic spying.
Earlier this week, the American Civil Liberties Union (ACLU) released a long paper on the use of SWAT by local, state, and federal law enforcement between 2011 and 2013. There are many unsettling takeaways from the report, not least of all that it looks at only 20 police departments out of some 17,000 in the United States.
The ACLU found that out of 800 SWAT deployments during those years, 62 percent were for narcotics cases. Seventy-nine percent were to serve a search warrant on a residence, which is likely not surprising to anyone who has followed the state of police militarization.
Only seven percent of the instances were over “for hostage, barricade, or active shooter scenarios” — that is to say, justifiable excuses to bring out SWAT.
We knew or suspected much of this before the ACLU’s report, but this adds more data to to the relatively incomplete quantitative picture of our warped state of policing.
Another red flag to be found within in the ACLU report is all the data it doesn’t contain, and the reason for its omission. The ACLU asked more than 250 local, state, and federal law enforcement departments for information, and 155 either entirely refused, or partially did so.
These police departments offered a children’s treasury of excuses for not wanting to provide requested documents, from it’s too expensive, to that’s not public record, to fears that it would “jeopardize law enforcement effectiveness.”
A 1994 federal law says police are supposed to put together data on shootings, but rarely share them. There is still no good way to get a broad picture of law enforcement’s use of force on a national scale.
The Cato Institute runs the National Police Misconduct Database, but that mostly includes lawbreaking and verifiable excess force. It is no stretch to assume that with all that police do today — including engage in some 50,000 SWAT raids in a year — there are many bad things about which we simply have no evidence.
State versions of the Freedom of Information Act can help us with this clarifying task, but as the ACLU learned in their quest to discover information about a new surveillance tool, there is always a an excuse for not complying with document requests.
Back in December, USA Today reported that that at least 25 police departments across the country were using Stingrays — the most common brand name for International Mobile Subscriber Identity (IMSI) catchers. These suitcase-sized devices disguise themselves as cell phone towers, causing phones en masse to connect to them. This allows police to collect metadata including call length, stored numbers, and the location of the phone.
USA Today asked 125 police departments whether they possessed a Stingray — or whether they had ever used what is known as a tower dump, which cuts out the middleman device, and goes straight to the source, still violating the privacy of a large swath of people at once — and 36 of them declined to answer.
The same stonewalling has been the response to ACLU public record requests in New York, Tucson, and most alarmingly in Sarasota, Florida.
In Sarasota, police initially seemed willing to release documents related to Stingray use. But the Associated Press confirmed earlier this month that the Obama administration has indeed been pressuring police departments to deny such transparency requests with security as the all-encompassing excuse.
This federal overreach took the form of U.S. Marshals deputizing a Sarasota police officer, then moving the requested files hundreds of miles until they were out of the way of Florida’s sunshine laws.
Hey, you can’t say the laws apply if the files aren’t even in the state and are being handled by feds anyway!
More recently, the Florida ACLU did get ahold of several emails between Sarasota and North Port Police, in which officer discussed shielding the origin of investigations when they were Stingrays. The information was to instead be credited to a confidential informant.
(This echos the NSA/DEA’s habit of using “parallel construction” for investigations.)
How to fix this surveillance run amok is the question. On Wednesday, the Supreme Court ruled that a warrant was required for cell phone searches. This was a win for civil libertarians, and for the public.
The ruling may or may not apply when it comes to large-scale metadata acquisitions including Stingray use. Possibly it will specifically here, because the Stingray acquires data directly from the phones, meaning the third-party doctrine excuse for weaseling out from the Fourth Amendment protections may not come up. Regardless, the Supreme Court finally joined the 21st century and acknowledged that searches mean different things than they did even two decades ago (and yay for that).
At the end of the day, however, it’s awfully hard for the public or anyone else to decide how they feel about law enforcement misconduct, or spying, when what little information that exists is being hidden away — as usual, in the name of that neverending magical incantation known as “security.”