By Michael Huggins
The film Minority Report tells the story of a future society that uses technology to predict who will commit crimes. When the crime starts to occur, the Pre-Crime police department uses those predications to capture the individual before they commit the offense. Specifically, the Pre-Crime police department uses knowledge acquired from three pre-cognitive beings to predict the time and the place of the crimes. This 2002 film continues to spark intellectual and ethical curiosity in the minds of many science-fiction fans. But Minority Report is just that: science-fiction. Or is it?
By Andrew H. Fuller
Last Monday (Nov. 9), the Supreme Court of the United States declined cert to petition Davis, Quartavius v. United States. The case focused on whether the police must obtain a warrant in order to access and review cellphone location data held by carriers. In brief, Davis was convicted of several counts of robbery based on evidence that was largely constructed from cellphone location data the state obtained from Davis’s mobile carrier, MetroPCS, without a warrant. Of particular concern to both Davis and privacy advocates was the data regarding the cell tower locations that Davis’s phone connected to at certain dates and times. The Eleventh Circuit held that Davis did not have a privacy interest in the historical cell site location data and therefore no warrant was necessary. Continue reading
By Michael Huggins
On October 26, 2015, the United States government argued before a federal magistrate judge in New York that it should be able to force Apple to unlock an iPhone as part of a criminal investigation. The federal government filed a request for a court order to compel Apple to comply pursuant to the All Writs Act— an 18th Century law that allows federal courts to issue orders to effectuate otherwise valid court orders. The government argues that the federal courts can use the All Writs Act to force Apple to assist the government in investigating users of the software. Apple refuses to comply with the order.
Apple argues that the situation would not be any different than if the government used the All Writs Act to force a safe manufacturer to travel around the country, unlock safes, and give the contents of those safes to the government. Apple argues that the government wants Apple to do the investigative work for them. Judge James Orenstein, the federal magistrate judge in the United States District Court for the Eastern District of New York, agreed with Apple’s logic. Assistant U.S. Attorney Saritha Komatireddy believes that Apple’s refusal to unlock the phone represents a surprising reversal from Apple’s previous willingness to unlock phones for the government. When Judge Orenstein asked Apple why it did not challenge the previous search warrants, Apple’s attorney Marc Zwillinger replied that the company had only recently become more cognizant of the harms to high-profile data breaches and that the company has had a change of heart. But even if Apple was willing to unlock the phone, it cannot do so because each individual contains a very specific password/key to unlock the phone. Continue reading
Law enforcement use of IMSI catchers and their insidious efforts to hide it.
By Miriam Swedlow
Thanks to NPR’s radio program, Serial, thousands of Americans now know that a person’s movements can be verified by following the interaction between a cell phone and nearby cell phone towers. An International Mobile Subscriber Identity (IMSI) catcher, commonly referred to as a “StingRay,” takes this concept a step further. The device tricks cell phones to connect to it by masquerading as a cell phone tower. Once connected, the StingRay provides “real time” tracking of a phone’s location and is capable of obtaining data from the phone (including emails, photos, and contact files). Although Federal and local law enforcement increasingly use these devices as part of surveillance activities, they have been reluctant to disclose to judges and the public exactly how and when they use them. This is likely because IMSIs cast a broad net, gathering invasive data on scores of innocent people in the process of tracking a single suspect.
Law enforcement agencies have utilized a “smoke and mirrors” approach to keep their use of StingRay equipment a secret. After the 2001 Patriot Act, the Department of Justice declared that law enforcement would need a Pen/Trap order before using direct surveillance technology on communication systems, such as IMSI catchers. Almost fifteen years later, there have been only two published magistrate opinions on the use of IMSI catchers. The lack of judicial opinions is directly related to law enforcement’s pervasive practice of obfuscating the use of IMSI catchers in pen register applications without explicitly disclosing the nature of the technology. For example, officers in Sarasota, Florida referred to the StingRay as a “source” in official documents to obtain warrants. In Tacoma, Washington, judges learned that they had signed off on the use of IMSI catchers through local newspaper reporting. The result is that judges have unwittingly granted hundreds of orders to use IMSI catchers. Continue reading