Federal Court Says Baltimore PD's High-Powered Aerial Surveillance Program Doesn't Violate The Constitution

Legal Issues

from the increase-resolution-to-violate-rights dept

Four years ago, the Baltimore Police Department unilaterally decided to put several eyes in the sky. The 192-million megapixel camera system capable of covering 32-square miles was sent skyward with zero public comment or input from the city. And why not? The city was barely involved. The BPD received the camera system courtesy of a private donor.

The head of the company, John McNutt, was contacted by some Texas-based philanthropists who offered to pay for the system if McNutt’s company, Persistent Surveillance Systems, would put it up in the air. What the system lacks in depth, it makes up for in breadth. Humans and vehicles are reduced to mere pixels, but the system’s ability to rewind recordings makes it possible for the PD to track movement of vehicles and people near crime scenes.

The aerial surveillance system is more re-purposed war tech. It was originally deployed in Iraq and Afghanistan under the name “Gorgon Stare.” That’s what Persistent Surveillance Systems is flying over Baltimore, this time with the city’s official blessing. After a period of public comment, the surveillance system is no longer just a test project.

The ACLU sued to block the launch of the program, citing the Supreme Court’s Carpenter decision, which adds a warrant requirement to the collection of cell site location data. It’s not an exact fit, but the Carpenter decision has been read by some courts to cover more than just location data.

Unfortunately, the ACLU’s attempt to secure an injunction has failed. The decision [PDF] doesn’t find the Carpenter decision applicable to an all-seeing-eye that can only capture the movement of pixels, rather than identifiable human beings. That being said, the planes (three of them) will fly for a minimum 40 hours a week each, resulting in six months of 12-hour-a-day coverage of nearly the entire city. (h/t Munchkin at Law)

There’s something more than a little dystopian about the program. But, despite the promise contained in the company’s name, this surveillance isn’t all that persistent.

The AIR [Aerial Investigation Research] program’s observational capabilities are limited. PSS [Persistent Surveillance Systems] cannot provide real-time surveillance. The on-board technology does not have zoom, telephoto, night vision, or infrared capabilities. The imagery is limited to “1 pixel per person” — essentially a single dot on the map. Accordingly, an individual’s characteristics are not observable in the images. As the planes will not fly at night or during inclement weather, significant gaps in the imagery data will emerge. These gaps in the record prevent the monitoring of a person’s movements over the course of multiple days.

Footage related to criminal investigations will be separated and held for up to 45 days. Suspicious pixels’ movements will be analyzed by investigators — a process the PD says will be “labor-intensive,” requiring up to one hour of investigators’ time for every two hours of movement observed.

But it won’t just be pixels moving around PSS’s 32-square-miles of footage. This system will be integrated with surveillance tech on the ground, including the city’s multiple CCTV cameras, Spot Shotter systems, and automatic license plate readers. Combining all of these elements will allow the PD to de-anonymize pixels and continue tracking of now-identifiable humans and vehicles.

Despite the concerns this integration of the city’s surveillance equipment raises, the court says it will not issue a permanent injunction against the use of PSS’s spy planes.

The record presently before this Court indicates that images produced by the AIR pilot program will only depict individuals as miniscule dots moving about a city landscape. The movement of these dots cannot be tracked without significant labor. Gaps in the imagery foreclose the tracking of a single person over the course of several days. This limited form of aerial surveillance does not constitute a “search” under the Fourth Amendment, nor does it burden First Amendment speech activities.

Even if it were a closer call, one feels the court would still have arrived at the same conclusion: the end justifies the means.

In a City plagued with violent crime and clamoring for police protections, this Court is loath to take the “extraordinary” step of stopping the AIR program before it even begins.

A bit more usefully, the court points out that not everything that identifies a person or their movements is a Fourth Amendment search, even if the Carpenter decision applied that to the collection of cell site location data.

The Plaintiffs’ argument, seeking to lump together discrete surveillance activities as one Fourth Amendment “search,” is simply without merit. Using a combination of resources and activities — including police interviews, CitiWatch cameras, license plate readers, and public records — the Baltimore Police Department may be able to reconstruct a detailed account of a person’s activities and associations. The addition of one more investigative tool — in this case, aerial surveillance — does not render the total investigatory effort a Fourth Amendment “search.”

Baltimore citizens and activists are right to be concerned about the PD’s use of near-persistent aerial surveillance. But the limitations of the system prevent it from being considered a threat to Fourth Amendment protections — at least as it’s configured now. This second pass by PSS and the BPD will be subject to far more oversight than its test run. The decision notes that the program’s efficacy will be tracked by two independent research groups and the public’s perception of the program monitored by the University of Baltimore. The program will also be subject to a “civil rights and civil liberties audit” by the New York University School of Law. And, finally, the entire program is subject to the contours of a consent decree signed with the DOJ — something that has been in place since early 2017.

At some point, the Fourth Amendment may be implicated by hours of aerial surveillance. But until the tech reaches the point where persistent tracking of individuals across an entire city is feasible, it seems unlikely any court will declare the PD’s program a violation of Constitutional rights.

Filed Under: baltimore, baltimore pd, john mcnutt, surveillanice 4th amendment
Companies: persistent surveillance systems

LAPD's Failed Predictive Policing Program The Latest COVID-19 Victim

Failures

from the [hastily-signs-DNR-certificate] dept

Fucking predictive policing/how the fuck does it work. Mostly, it doesn’t. For the most part, predictive policing relies on garbage data generated by garbage cops, turning years of biased policing into “actionable intel” by laundering it through a bunch of proprietary algorithms.

More than half a decade ago, early-ish adopters were expressing skepticism about the tech’s ability to suss out the next crime wave. For millions of dollars less, average cops could have pointed out hot crime spots on a map based on where they’d made arrests, while still coming nothing close to the reasonable suspicion needed to declare nearly everyone in a high crime area a criminal suspect.

The Los Angeles Police Department’s history with the tech seems to indicate it should have dumped it years ago. The department has been using some form of the tech since 2007, but all it seems to be able to do is waste limited law enforcement resources to violate the rights of Los Angeles residents. The only explanations for the LAPD’s continued use of this failed experiment are the sunk cost fallacy and its occasional use as a scapegoat for the department’s biased policing.

Predictive policing is finally dead in Los Angeles. Activists didn’t kill it. Neither did the LAPD’s oversight. Logic did not finally prevail. For lack of a better phrase, it took an act of God {please see paragraph 97(b).2 for coverage limits} to kill a program that has produced little more than community distrust and civil rights lawsuits. Caroline Haskins has more details at BuzzFeed.

An LAPD memo dated April 15 quoted Police Chief Michel R. Moore saying that the police department would stop using the software, effective immediately, not because of concerns that activists have raised but because of financial constraints due to COVID-19, the disease caused by the novel coronavirus.

“The city’s financial crisis, coupled with the impact of the COVID-19 pandemic, has resulted in the immediate freeze of new contractual agreements and ‘belt-tightening’ instructions by the Mayor to all city departments for all further expenditures,” the memo said. “Therefore, the Department will immediately discontinue the use of PredPol and its associated reports.”

Activists like Hamid Khan of the Stop LAPD Spying Coalition are calling this a win. And it is, sort of. When something you want stopped stops, it’s still a victory, even if it appears to be due to unforeseeable developments rather than local activism. This doesn’t mean Khan and others shouldn’t keep working to keep LAPD’s predpol system shut down. But it’s perhaps too optimistic to declare this turn of events as a testament to your activism when it appears the LAPD is only temporarily mothballing a program its budget can’t support at the moment.

But we can still hold out hope it won’t be resurrected when the current crisis passes. The LAPD has struggled to show the program actually impacts criminal activity more than it does Constitutional rights, despite having more than a decade to do so. We can still celebrate its death, even if it’s only being buried in effigy at this point. Maybe by the time this has all passed, the LAPD will realize it hasn’t missed the expensive software’s dubious contribution to the city’s safety and abandon it for good.

Filed Under: algorithms, covid-19, lapd, law enforcement, police, predictive policing

Court Tells Agency That Tried To Charge $1.5 Million For A Records Request It Now Owes The Requestor $12,000 In Fines

Failures

from the chug-disinfectant,-Missouri dept

It’s too bad it takes a lawsuit to free up supposedly “open” records. A few years ago, transparency group Reclaim the Records asked for some easy-to-compile birth and death data from the Missouri Department of Health and Senior Services and received this ridiculous response.

DHSS told [Brooke] Ganz her request would cost $1.4 million to gather the documents. Ganz hired an attorney, Bernie Rhodes of the Lathrop GPM law firm. Rhodes, of Kansas City, is a Sunshine Law expert. He did some research and figured out obtaining the records would literally take a few keystrokes at a computer. He protested the ridiculous charge — a common tactic in Missouri when public officials don’t want to release public documents. The state backed off and said the search would cost closer to $5,000.

When this drastically-reduced estimate was delivered, Reclaim the Records said it was still too high. So, the state just decided it wasn’t going to release the records at all.

The Cole County Court has sided with Reclaim the Records. The state will have to produce the records and for even less than the $5,000 it quoted before deciding it wasn’t going to release anything. The decision [PDF] details the government’s dishonest dealings during this case, making it clear the DHSS did everything it could to avoid complying with the state’s Sunshine Law.

The first couple of communications from the DHSS quoted an hourly rate of $20.85. The next response — sent after state officials spent a few days “obtaining information about Reclaim the Records” — suddenly increased the hourly rate to $42.50/hour, raising the entire estimate to nearly $1.5 million.

This estimate was drastically reduced when Reclaim’s lawyer pointed out the search could be performed easily, pulling birth/death data from the state’s database a year at a time, rather than the state’s proposed day-by-day search through 40+ years of data.

The ruling provides more insight on the DHSS’s obfuscation — a coordinated effort by the government to withhold these records permanently.

On July 21, 2016—while Mr. Rhodes and Ms. Loethen were corresponding about search methodologies that would comply with the Sunshine Law—Dr. Wambuguh spoke with Garland Land, the former State Registrar, about Ms. Ganz’s requests.

Later the same day, Mr. Land wrote Dr. Wambuguh and told her that DHSS should deny Ms. Ganz’s requests, and “require them to take you to court,” and to use the delay caused by the lawsuit to get the Legislature to change the law.

The court’s opinion includes a screenshot of an email from Garland Land detailing the state’s attempt to wait this out to see if it could get the law amended before Reclaim could sue the records out of the state’s hands.

I would not honor the request. I would require them to take you to court and then bring in national genealogical and vital records experts to testify why making indexes is not good public policy. By delaying this you might file a regulation or get the Legislature to clarify the intent of the law.

That’s what the DHSS did. It went to work trying to have the law changed, rather than simply comply with a (simple) public records request.

As stated in Mr. Ward’s e-mail, DHSS did in fact put forward a request to the Missouri Legislature to remove the provision from Missouri law providing that birth and death listings are available upon request.

Specifically, DHSS lobbied to have the Missouri Legislature remove the provision in Section 193.245 that provides that birth and death listings are available upon request.

The court finds the DHSS is obligated to produce these records. The law clearly states the DHSS “may disclose” the information Reclaim the Records requested. Nothing forbids the production of these records. Not only that, but it will have to do so for even less than the $5,000 it last quoted. The court says the allowable charges are only $2,557.30 — a total it arrived at after stripping the cruft from the DHSS’s quoted hourly rate of pay, decreasing it from $42.50/hour to $20.65/hour. This final total is “three-tenths of one percent of DHSS’ original $1.49 million estimate.”

The court doesn’t care for the government’s actions at all.

This secret plan represents an utter disdain for “the public policy of this state that … records … of public governmental bodies be open to the public unless otherwise provided by law.” Mo. Rev. Stat. § 610.011.1. Governmental bodies are not allowed to deny requests and then seek a law closing them; instead, they may only close records that are closed by existing law.

It is also important to consider the chronology of events—specifically, the fact DHSS’ denial came only after Ms. Ganz’s counsel had debunked the original $1.49 million demands for fees, which was clearly intended to be a back-door denial of Ms. Ganz’s requests. And when DHSS refigured its cost estimate using information supplied by Ms. Ganz’s counsel, it arrived at an estimate of approximately $5,000—still significantly higher than the allowable charges, but in a range that Ms. Ganz might consider paying.

Faced with this reality, DHSS had to scramble to find a way to prevent the disclosure. It found that way when Mr. Land provided a literal roadmap to achieve DHSS’ illicit goal: deny the request, make Ms. Ganz sue, and then use the delay caused by the resulting lawsuit to go to the Missouri Legislature and try to get them to change the law to close otherwise open records. It is hard to imagine a more purposeful plot.

For these willful violations of the state’s Sunshine Law, DHSS has been hit with $12,000 in fines, payable to Reclaim the Records. It is also now liable for Reclaim’s legal fees, which are yet to be determined. Unfortunately, these payments will come out of taxpayers’ pockets, which kind of limits the deterrent effect. But it’s clear the government never had any intention of following the law. Worse, it tried to have the law changed to align with its desire for opacity — an amendment that would have produced zero net benefit for residents of the state. It’s a pretty bold move to charge constituents for the privilege of having less access to public records. Fortunately, none of this worked out for the DHSS.

Filed Under: bernie rhodes, brooke ganz, foia, missouri, missouri department of health, sunshine, transparency
Companies: reclaim the records

Israel's High Court Blocks Country's Hastily-Erected Domestic Coronavirus Surveillance Program

News

from the all-shin-bets-are-off dept

When the coronavirus crisis hit, several countries saw an opportunity to engage in/expand domestic surveillance. Unsurprisingly, China and Hong Kong were some of the first to step up their snooping. But it was Israel that quickly deployed one of the more concerning virus-tracking programs: opening up a massive collection of cellphone data to its national security force, Shin Bet.

This was done without any legislative discussion or input from the millions of stakeholders whose cell data had just become a plaything for Shin Bet. To make matters worse, the backup plan involved Israel’s premier malware merchant, NSO Group, which has offered its spy tools to governments to spy on journalists, attorneys, and activists.

Prime Minister Benjamin Netanyahu’s unilateral declaration that telcos’ data stores were open for government business may have been premature. While there’s definitely value in tracking infected members of the population, a more voluntary program would have been the place to start.

The nation’s High Court has at least temporarily blocked Shin Bet’s use of cell location data.

[T]he ruling states that, “The choice to make use of the state’s preventative security agency to follow those who do not seek to do [the state] harm, without the subjects of the surveillance giving their permission, raises an extremely serious difficulty and a suitable alternative should be sought that fulfills the principles of privacy protection.”

The court says that if the government wants to do this, it needs to create legislation first — something that will establish guidelines for use of the data collection, as well as provide an expiration date for this specific authority.

This isn’t necessarily what the government wanted to hear. Haaretz reports a classified meeting between the country’s Foreign Affairs office and the Defense subcommittee discussed concerns about the Shin Bet effort. But officials weren’t concerned about the privacy issues the court raised in its decision. Instead, they were discussing a National Security Council report that said that if the government didn’t do this, the other alternatives were pretty much useless.

Among other things, the report stated that the primary alternative would be monitoring by NSO group, an Israeli Surveillance company, to which Attorney General Avichai Mendelblit objected because it would undermine residents’ privacy. It was also argued that there is a huge number of people who use kosher phones that cannot download apps, and that this was an impediment.

Yes, you read that correctly. The government’s National Security Council argued the NSO effort would undermine privacy. Somehow the same conclusion wasn’t drawn about the country’s national security agency using the same data.

In more helpful news, the High Court also ruled journalists’ data off-limits. If journalists wish to be tracked as part of the temporarily-halted surveillance program, they will need to consent to the collection. Obviously, most journalists will opt out, given the risk this surveillance poses to their sources. Those seeking to opt out can obtain a restraining order from the court to block Shin Bet’s access to their records.

All in all, it’s a good thing someone’s attempting to rein in government overreach in a time when a lot of government activity is going to go unquestioned. This still leaves unanswered questions about the virus-related surveillance — namely how long it’s going to last and how easy it will be to uncouple the government from this data when it’s all over. Hopefully, the mandated legislation will answer the questions the Prime Minister apparently didn’t ask before authorizing this new form of domestic surveillance.

Filed Under: contact tracing, covid-19, israel, mobile phone data, privacy, shin bet, surveillance
Companies: nso group

The System Works: Deputy Who Randomly Fired His Gun Through His Windshield Into Rush Hour Traffic Fined $2

Legal Issues

from the making-the-least-of-a-learning-experience dept

This is the story of a person who should have never been allowed to be a law enforcement officer. He wasn’t one for long, but he was one long enough to do something so batshit crazy, it nearly requires the suspension of disbelief asked of us by fiction writers.

Noah Arwine is no longer a sheriff’s deputy. But while was still a deputy, he did this:

On Nov. 2, 2018, Arnwine was riding back from an inmate transport in the passenger seat of a county cruiser when the then-19-year-old pulled out his personal .38-caliber Ruger, emptied all but one chamber, pointed the gun at the windshield and pulled the trigger “as if he was playing Russian roulette,” according to his partner.

The bullet pierced the cruiser’s windshield and whizzed into traffic during rush hour on Interstate 75 North near the Philadelphia, Tennessee, exit.

His co-worker, Deputy Cody Lankford, responded with more composure than most people would in this exceptionally novel situation. He slowed down the vehicle, tried to see if any drivers had been shot, and drove back to the Sheriff’s Office to report this incredible (in all the worst ways) incident. Perhaps Lankford showed too much composure.

“It really freaked me out, but I don’t think anybody got hurt. It’s just the principle that he’s that stupid, and it kind of worries me.”

This is just the beginning of a long list of almost-unbelievable events in this story. As stated above, Arnwine is no longer employed by the Claiborne County Sheriff’s Department. But he was not fired for this incident… you know, the one that involved firing a live bullet through the windshield of a police cruiser into rush hour traffic. Not for a lack of trying by concerned supervisors.

This shooting was reported to (now-former) Assistant Chief Deputy Mark Ellis. Ellis recommended Arwine be fired and charged with a felony. This did not happen. Sheriff Bob Brooks chose to overlook this incident almost entirely. Perhaps this was due to Arwine’s stepmother being the Sheriff’s secretary. Or perhaps because Arwine’s father, a State Trooper, used to work with the sheriff.

Instead, Sheriff Brooks decided to fire the messenger.

Ellis said the sheriff ignored his advice, kept the shooting quiet and instead forced Ellis out over a struggle with a jail inmate. That struggle, which ended when Ellis used a stun gun to subdue the inmate as he fought with half a dozen officers, led to Ellis’ indictment on charges of assault and official oppression.

Sheriff Brooks denies any of this happened the way Ellis said it happened. But his explanation is actually worse.

The sheriff, for his part, called Ellis a “full-blown liar,” said he never saw a recommendation Arnwine be fired and downplayed the shooting as an accident that didn’t need investigating.

“It must be a slow news day if you’re asking about this,” Brooks told Knox News when first asked about the shooting.

It apparently was never investigated, at least not by the Sheriff’s office. Arwine remained on the force for nine months, only to be fired shortly after the Tennessee Bureau of Investigation started looking into deputy’s in-car shooting. But even this firing had nothing to do with Arwine’s passenger seat Roulette game.

Brooks, who took office just after his predecessor was indicted, said the timing was a coincidence and that he fired Arnwine for refusing an order to go to a jail tower.

Maybe so. (And if so, what the fuck. The shooting seems like a way more “fireable” offense.) But it’s the ride-along gunfire that actually netted Arwine a criminal charge. This debacle has finally come to an end. Unfortunately, the system continues to bestow its blessings on the ex-deputy who certainly hasn’t earned all the grace he’s been granted. Arwine is paying for his LEO sins, but he’ll still get change back from his $5.

Noah Arnwine, now 21, turned himself in to be booked into the Loudon County jail on a warrant for felony reckless endangerment. He promptly stood before a judge, pleaded guilty to a misdemeanor count of the same charge, paid his fine of $2 and walked away with 11 months, 29 days of unsupervised probation. He also will be required to perform community service and take a gun safety course.

All this tells citizens is that their lives are worth about $2 if a deputy chooses to fire a bullet from a Sheriff’s Office car into rush hour traffic. Arwine is going to be able to find another law enforcement agency to work for since misdemeanors are rarely an impediment to cops and their careers. And that’s if anyone even bothers to do a background check. Chances are, the records of this incident will be excised from Arwine’s permanent record, allowing him to continue serving the public as a loose cannon until someone in that ultra-forgiving occupation finally tires of his antics.

Filed Under: law enforcement, mark ellis, noah arwine, police, sheriff bob brooks, tennessee

Canadian Publishing Group Says France Has The Right Idea, Presses For Its Own Google Tax

Journalism

from the dividing-by-almost-zero dept

Canada is more than just a calmer, more apologetic version of the United States. It’s its own thing. But, more accurately, it’s a Britain + France thing. While Canada shares a common border with us, it’s still more Europe than US of A.

Every so often we’re reminded of its ties with the other side of the pond. This is one of those times.

French regulators recently decided Google owed French news sites for all the traffic it sends to them. It mandated “negotiations” between Google and French newspapers, but insisted the negotiations begin with Google getting out its wallet.

It appears Canadian lobbyists agree with France: Google owes them money.

A Canadian news industry advocacy group says that Canada would do well to follow France’s example in forcing internet search giant Google Inc. to pay news publishers for their content.

I guess this depends on how you define “do well.” This could backfire severely, resulting in no new revenue streams and fewer site visitors. Just ask Spain. That’s not “doing well.” If this means the group thinks it’s advisable to follow France’s example, it’s also wrong. But that’s the direction journalists are being steered by their advocates.

News Media Canada chief executive John Hinds said Thursday that the federal government will need to take a leadership role if the power dynamic between Google and publishers is to be changed.

This isn’t the first time Canadian journalists have demanded tech companies pay them for the traffic they send them. Three years ago, a Google tax was pitched to the Canadian government — one that included Facebook and Netflix in a proposal to tax companies who helped bring Canadian content to site users around the world.

Things are tough all over, thanks to a radical shift in, well… everything… since the beginning of the coronavirus pandemic. Hinds somehow believes an advertising giant will provide for everyone during a time when everyone’s advertising revenues are down.

Hinds said the collapse of advertising rates in the face of the COVID-10 global pandemic, at a time when people are reading news sites at higher rates than ever, highlights the problem.

“I think it’s a fundamental thing: We need to be paid for our content. We need to be compensated,” Hinds said.

Fair enough. Let your readers do that. If they’re not interested, it’s really not up to a bunch of other companies located elsewhere in the world to make up the perceived difference. Everything sucks everywhere at the moment. Wringing a few bucks out of Google isn’t going to reverse anyone’s fortunes. And the more newspapers that convince governments Google should pay for sending them traffic, the less they’ll all be making individually.

A Google tax isn’t a revenue stream. It’s not even a trickle. Here’s Nate Hoffelder’s estimate of how Google’s “billions” in profit would actually pay out for rent-seeking newspapers:

Google is making under 4 cents per search, and turning a profit of around a half a cent per search.

Of course, that is an average across all of Google’s search results, and it includes search terms and even whole verticals which are not monetized (Google News, for example). And that is also a global average and not based on EU revenues, so it is not 100% applicable. (And those calculations are based on a bunch of unsupported assumptions.)

Leaving those caveats aside, the point that matters is that news publishers want Google to pay for the use of their links and snippets. This means that Google would need to take that 3.7 cents and divide it between all of the relevant links returned with each click of the search button (after taking a cut for itself).]

Efforts like this are counterproductive. They’re unlikely to reverse the fortunes of failing news concerns and far more likely to convince US tech companies to avoid providing specific services for certain countries. If Canadian publishers want what France has, they’re only going to end up splitting the disappointment.

Filed Under: aggregators, canada, france, google news, google tax, john hinds, news aggregators, news publishers, snippets, traffic
Companies: news media canada