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The 4th Amendment protects Americans from unreasonable search and seizure. But law enforcement agencies across  the country are deploying new technologies in ways that routinely violate Constitutional protections.

These devices include radars that can see inside your house, scanners that can track where you go, and cell phone sniffers that can trick your phone into revealing information about you.

These surveillance devices are being deployed around the country with little or no disclosure to the public. Even worse, the legal protections that govern them are often ignored or so poorly defined that the legality of their scope of use is unknown.

One thing is certain – these new technologies, if misused, provide the means for widespread abuse.

Through The Wall Sensor Systems

Take the case of Steven Denson:

  • Denson had been convicted of armed robbery and was out on parole
  • A warrant had been issued for Denson’s arrest after he stopped reporting to his parole officer
  • Police were dispatched to arrest Denson after finding his address from a utility in his name
  • They used a handheld doppler radar called a Range-R to scan the building before entering
  • Police entered and arrested Denson, along with a cache of weapons

It sounds like a movie. Cops use new technology to locate a bad guy in a building, then they break in and arrest him. Wonderful, right?

Not if you are a fan of the Constitution. The 4th Amendment states:

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.

People defending these technologies often cite “officer safety.” However, officer safety is not be an excuse to ignore the Constitution. No one is arguing that Denson is innocent. But if you want to search inside someone’s house you need to get a warrant.

The alternative is frightening. Imagine law enforcement officers standing outside your house and watching every move you make in HD. Is that possible now? Not to civilian law enforcement. But with the rapid advance of technology, it is only a matter of time.

Still, the state of the art is not bad at all:

That’s because, like MRAP‘s and grenade launchers, these Through the Wall Sensor (TTWS) devices:

…were first designed for use in Iraq and Afghanistan. They represent the latest example of battlefield technology finding its way home to civilian policing and bringing complex legal questions with it.

The good news is that you probably won’t find police officers standing outside your house monitoring you with them 24/7. The bad news is that they won’t have to because these sensors can be mounted on robots, drones and unmanned aerial vehicles.

In fact, this type of permanent, un-targeted surveillance is already commonplace.

Automatic License Plate Recognition (ALPR / ANPR)

One of the most widespread surveillance techniques in the United States takes place whenever you drive your car. It is called ALPR or ANPR, and it is:

…a mass surveillance method that uses optical character recognition on images to read vehicle registration plates. They can use existing closed-circuit television or road-rule enforcement cameras, or ones specifically designed for the task.

A 2011 survey by the Police Executive Research Forum of more than 70 departments found:

  • 70 percent used ALPR technology
  • 85 percent expected to be using or increasing use of the technology within the next five years.
  • By 2016 as much as 25 percent of police vehicles will come equipped with the cameras.

ALPR doesn’t require any intervention from the police officers. All it requires is a video feed. That feed can come from a stationary camera placed at an intersection, CCTV footage, or from cameras mounted on police cars.

These systems gather “information such as license plate, time, date and location, that can be used to create a detailed map of what individuals are doing.

If it sees a plate that matches a number in its database, it can automatically alert police. However, if your plate doesn’t match a number in the database, it still gets stored. Along with the time, date, and location of where you were seen.

All of this information about your driving habits is available for analysis. It can be used to figure out your routines, where you go, and when you go there. Despite the fact that you have committed no crimes, law enforcement has the ability retro-actively retrace all of your movements. So, heaven forbid you visit a marijuana dispensary or a strip club, that information will be available for LEO’s to see.

Right now, the agencies and private companies that manage the ALPR databases have detailed records of your movements. Whenever you drive, they track you, even if you have committed no crime. And, if you ever do commit a crime in the future, the authorities can use these records to go back and compile a case against you.

Is that the America you want to live in?

It gets worse.

Stingrays – Watching Your Cell Phone 

Stingrays can be set up anywhere. But where ALPR’s track your license plate, Stingrays track your cell phone. A Stingray is:

a secretive device that federal law enforcement and local police have been using with increased frequency: an International Mobile Subscriber Identity locator, or “IMSI catcher.” These devices allow the government to electronically search large areas for a particular cell phone’s signal—sucking down data on potentially thousands of innocent people along the way—while attempting to avoid many of the traditional limitations set forth in the Constitution.

The way it works is both diabolical and ingenious:

A Stingray works by masquerading as a cell phone tower—to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not— and tricks your phone into connecting to it. As a result, the government can figure out who, when and to where you are calling, the precise location of every device within the range, and with some devices, even capture the content of your conversations.

Like ALPR’s, stingrays track vast amounts of untargeted people. And while the data collected by a stingray can be used in an investigation, the majority of the data collected is obtained from innocent, law abiding citizens. This data can be analyzed, like the ALPR data, to create intimate profiles of where you go, whom you talk to, what you talk about, and when you do it.

And although some agencies claim that they delete data they capture on innocent civilians, the bigger questions are:

  • What do they do with it before they delete it?
  • Why are they mass collecting cell phone data in the first place?
  • Do we really believe them?

One thing is certain: the advance of technology makes pervasive surveillance more of a reality every day. Right now, law enforcement agencies are logging our license plates and recording our cell phone usage. Today, they are using radars to see inside your house. Tomorrow, who knows?

On the battlefield, we already have drones that can look inside of buildings and record everything they see. And, with the proliferation of military technology into law enforcement, it is only a matter of time before all of these systems – Singrays, ALPRS, and TTWS radars – are mounted on drones flying overhead that can record the totality of our actions.

Standing against this threat of pervasive digital surveillance is a piece of paper written hundreds of years ago, and a small panel of judges. So far they have held the line.

Thanks to Kyllo v. United States, using external devices to scan inside of homes is considered a search, and thus protected under the 4th Amendment. Writing about the role of advancing technology in the Killyo case, Supreme Court Justice Scalia said:

We have said that the Fourth Amendment draws “a firm line at the entrance to the house,” Payton, 445 U.S., at 590.

And:

Reversing that approach would leave the homeowner at the mercy of advancing technology–including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.

Those systems are here.

So, as important as it is to catch criminals or protect police officers, it is even more important that we protect our rights. I’d rather lose a few cases and keep the Constitution than vice versa.

7 Responses

  1. Ray

    The authors example of the robber who is on parole is wrong. As a condition of parole you waive your 4th amendment right or you stay in prison. Although I understand your point that is a bad example.

    Reply
    • Lynz

      You’re right, parolees do waive their rights in order to be on parole. If he lived by himself and was the only person on the lease, the 4th Amendment wouldn’t apply to his case. Still, using the equipment seems excessive, especially if they wouldn’t have needed a warrant to enter his home. However, if he had anyone else living with him or the building was in an apartment complex, townhouse or anything other than a single family residence, it’d be a violation of 4th Amendment rights. Housemates of parolees also have to waive their rights but only to a certain extent. Any area of the household that is considered shared is open to warrant-less searches but any private areas or bedrooms, with locks on them, that the parolee doesn’t have access to, are still protected.

      Reply
    • Rob Hustle

      I did not include the entire text of Denson’s appeal in the article for brevity’s sake. However, if you read it, you will that his lawyers argue that Mr. Denson:

      …plead guilty to a federal firearm charge under 18
      U.S.C. §§ 922(g)(1) and 924(a)(2). At the same time, he preserved the right to
      appeal the district court’s denial of his Fourth Amendment motion to suppress.
      Exercising that right now, he seeks reversal on three grounds. First, he contends
      the officers entered his home without reason to believe he was there at the time.
      Second, he argues that the officers lacked a lawful basis to search his home after
      they arrested him. Third, he submits that the officers had no right to seize his
      guns even after they came upon them. In the first two of these questions we
      confront — even if we do not have to resolve fully — how the Fourth Amendment
      interacts with the government’s use of radar technology to peer inside a suspect’s
      home.

      The court has yet to rule.

      Reply
  2. Tom Simpson

    First, they popularize these sophisticated listening and detection devices via Hollywood movies. Then they are made acceptable to most Americans by using them to locate and capture “criminals” even though the perps rights were violated. Most Americans have no problem with that as long as its the criminals getting nailed and put away. Right? The courts may even look the other way since most defendants have only a public defender representing them, which makes it easy to violate the criminal’s rights But time goes on, these gadgets become more and more popular and draw less and less attention to themselves, and before we know it, we’re in a police state!

    Reply
  3. Sam Rator

    Yet its interesting how people just tolerate the NSA & FBI having the ability to activate your camera & listen-in on your smartphone, wifi tv, laptop, & tablets without your ever knowing. No one today wants to go without their precious cellphones so its tolerated. I guess it is just alot easier to deal with local & state jurisdictions instead of the feds. I also believe a device that depicts a heat source is alot less frightening than having the ability to watch & listen to someone in real time in the privacy of their home…from their own devices.

    Reply

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