The headline from Wired.com sent local journalists scrambling: “Virginia Police Have Been Secretly Stockpiling Private Phone Records.”
The story drew national attention and garnered follow-up stories from USA Today, The Virginian-Pilot and the Daily Press. Penned by G.W. Schulz with the nonprofit Center for Investigative Reporting, the story was the first to report the existence of the Hampton Roads Telephone Analysis Sharing Network (HRTASN), a program where five local police departments share the phone records of those they suspect of committing crimes.
It’s just one example of the way our society is under more surveillance than ever before.
As technology has advanced, so have the ways that governmental agencies, corporations and private citizens keep tabs on us. There was the case of the teenager near Minneapolis whom Target sent pregnancy coupons based on her shopping habits. By tracking her purchases the corporation knew she was pregnant before her father did.
After the shootings of two Roanoke journalists on live TV in August, state troopers used an automatic license plate reader—which scans and stores the license plate number of every passing car—to locate suspect Vester Lee Flanagan. In Northern Virginia, a man is suing the Fairfax County Police Department for using this same device to monitor his movements, even though he’s not suspected of criminal activity.
In August, North Dakota’s state legislature not only granted law enforcement agencies the right to use drones for surveillance, but also authorized them to use non-lethal force, meaning police could soon be tasing suspects from the skies.
Consider the spate of police brutality videos—many of the victims African-American men—that have surfaced in the past couple years. Accusations of police brutality can now be backed up by normal citizens recording video on their smartphones. Law enforcement agencies are feeling increased pressure to adopt body cameras for officers and dashboard cameras for vehicles, with local police departments paying millions in the past year to implement the technology.
In ways we’re aware of—and in ways we’re not—surveillance is becoming a ubiquitous presence in our daily lives.
While there were incidents that preceded it, the national conversation about body cameras kicked off with the 2014 shooting death of Michael Brown in Ferguson, Mo. An investigation proved no wrongdoing in the shooting of the unarmed teenager by police, but it ignited a tinderbox of racial tension across the country.
It’s a truth that Neil Richards is well aware of. A law professor at Washington University in St. Louis, Richards lives just eight miles from Ferguson. Richards’ interest in surveillance and its effects on society has led him to contribute articles to the Harvard Law Review, CNN, and pen the book Intellectual Privacy: Rethinking Civil Liberties in the Digital Age.
As much as Richards might advocate for body cameras under certain conditions, he says surveillance can harm more than just those who are suspected of criminal activity. “Anytime people are watched, they act differently,” Richards says. “They act in ways that are more conventional, that are more in line with social expectations—particularly the social expectations of the watcher.”
In the aftermath of Edward Snowden’s revelations about America’s surveillance programs, a Massachusetts Institute of Technology economist and a privacy advocate studied Google search terms. After learning that the National Security Agency was monitoring the computer activities of millions of innocent citizens, the study found that people were not only less likely to look up terms like “anthrax” or “bomb,” but avoided embarrassing search terms like “bulimia” or “divorce lawyer.”
For a society that prides itself on free thought and free speech, the knowledge of being under surveillance can have a stifling effect, Richards says. People are less likely to express themselves, protest or practice dissent. He contends that the ability to explore unconventional ideas is vital to a free people and points out that many western ideas that we now take for granted—like equal rights for all, or a government of the people—were once considered radical notions.
Surveillance can also be abused in human hands. When the FBI surveilled Rev. Martin Luther King Jr. in the interest of seeing if he was under the sway of communism, they instead uncovered that he was engaging in extramarital affairs. The FBI attempted to blackmail him to stop his civil rights efforts, going as far as sending him an anonymous letter implying that he should kill himself.
“Any kind of power, when it is unchecked, tends to be abused,” Richards says.
But surveillance by itself is not the problem, he adds. It’s a tool, and it can work toward virtuous goals. The installation of cameras inside a prison, for instance, can deter misconduct from both inmates and guards. Surveillance aided law enforcement in their efforts to find the Roanoke shooter and helped identify the suspects in the Boston Marathon bombing. For law enforcement, the benefits of surveillance are many.
“Surveillance is neither all good nor all bad,” Richards says. “We talk about privacy and surveillance as though we all only like one or the other. Actually, all of us like both. Parents surveil their children but probably don’t want to have their friends hide cameras in their own bedrooms.”
As video evidence continues to play a critical role in police brutality cases across the country, many are clamoring for body cameras on all active duty officers. The hope is that the cameras will both assist citizens who have been victims of the overreach of law enforcement and help officers when they are incorrectly accused of misconduct.
An example of this played out in Rialto, Calif., where the use of officer force fell by 60 percent and citizen complaints against police dropped 88 percent in the first year after body cameras were introduced. But even this may have pitfalls.
“Somebody wearing a body camera—if they’re able to turn it off—it can become a benefit to the police,” says Richards. “They can turn the camera off; they can play to the camera. Someone working with one of these cameras all the time is going to become quite skilled in using it.”
It’s an opinion shared by Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia. “Body cameras are only as good as the policies that are written to guide their use,” she says, arguing that those suspected of a crime should have access to the same body camera footage as police. “If the policies aren’t in place that ensure transparency and accuracy, then you end up with a further erosion of trust because they’re nothing more than spy cameras that are mounted on people’s bodies.”
Locally, six of Coastal Virginia’s seven major cities have adopted body cameras for its officers, with Virginia Beach the lone holdout, although in a recent Virginian-Pilot article, Virginia Beach Police Capt. Todd Jones estimates the implementation of cameras in early 2017.
For his part, Richards is worried about financial cost (cameras can cost hundreds of dollars apiece; the service contracts for each can cost thousands), as well as how the body cams may impair officers’ safety. “They can be quite distracting for the police if they’re worried about how they look on camera,” Richards says. “They might be inhibited in doing their duties in a way that might make a difference in their safety.”
“I think they should also think about whether it is worth the money of adopting them. There are lot of things police need to spend their money on, and their budgets are finite. It’s not at all clear to me that police body cameras should be at the top of the list for law enforcement.”
The ACLU of Virginia is working to arm citizens with their own surveillance methods. While citizens are allowed to film law enforcement during an altercation, there have been instances where individual officers have confiscated equipment and deleted videos.
To combat this, the ACLU of Virginia is working to unveil a smartphone app called “Mobile Justice” that will record audio and video. Even if a phone is locked, the app will allow users to record at the touch of a button, and the videos will be immediately uploaded to the ACLU’s servers.
Where some might have previously dismissed claims of police brutality out of hand, the increase of these user-generated videos has provided proof for these accusations.
“When you have a picture of an incident, it’s far more powerful than somebody saying, ‘I saw something happen,’ because the credibility of the witness isn’t an issue,” Gastañaga says.
Body cams aren’t the only new toys to hit law enforcement in the past few years. Automatic License Plate Readers (ALPRs) have also given police departments a tool to track those they suspect of a crime. These devices are set up alongside roads to passively collect the license plate numbers of all cars that pass by.
Virginia State Police first began using the devices in 2006, building up a database of roughly 8 million license plate images across the state. Because the data was never dumped, law enforcement officers could see what a suspect was up to years before they became part of an investigation. Looking at the data over time, officers could discern a person’s normal routine or deviation from it.
The state police’s database was purged two years ago after then-Attorney General Ken Cuccinelli advised that storing information not directly tied to an ongoing criminal investigation would violate Virginia’s Government Data Collection and Dissemination Practices Act. Unless the data is part of an investigation, the images collected by state troopers are now automatically dumped every 24 hours.
Between their usage against ISIS and Amazon’s plans to use them for delivery, drones have received a lot of press recently, but they’ll see limited use by local law enforcement. The General Assembly voted last session to outlaw weaponized drones by law enforcement in Virginia with few exceptions. The legislature has also concluded that police must seek a warrant before using drones in an investigation.
But the most intriguing device Virginia law enforcement can utilize is probably one you haven’t heard of. It’s called a Stingray, and it collects information from citizens by mimicking a cell phone tower. The device sends a signal to all cellphones within an area even if they aren’t being used. It can listen in on conversations or pinpoint the exact location of the person using it. Used outside of a political rally, it can obtain the cellphone numbers of all in attendance. It can also send texts and emails from a person’s phone.
Initially created for the military and spy agencies, Stingrays are increasingly being used by local law enforcement agencies, and because of the secrecy of the device, it’s hard to know which departments use them. At present, the police departments of Chesterfield County, Fairfax County and possibly Alexandria are known to have Stingrays.
This brings us to the Hampton Roads Telephone Analysis Sharing Network, operated by Hampton, Norfolk, Newport News, Suffolk and Chesapeake. Based out of a “telephone analysis room” in Hampton, the network collects its data either by subpoenaing telecom companies or from phones seized during an arrest.
The information stored in this network is called metadata and can include anything sent in an undeleted text message, GPS location information and all records pertaining to a phone call. The content of a phone call itself is not stored as part of the program, but the time, date, phone number, call duration and location of the user could be included in this data.
In a video released by the Hampton Police Department, Sgt. Jason Price downplays the invasiveness of the network. Funded by asset forfeiture money, Price explains that the network is only used for more complicated cases—like those involving violence, drugs or gang activity—that cross jurisdictions.
While Price explains, “This tool really allows us an opportunity to look at information that there really is no other way to look at,” he also says, “It is just data,” and, “This isn’t Big Brother watching you.” Web browser history, photos and videos stored in a phone are not included, and Price says it’s just a more sophisticated version of how police once wrote phone numbers on index cards to determine connections between callers. Richards doesn’t agree with the comparison.
“I think the analogy between this program [and index cards] is a bit like saying … there’s really no meaningful difference between computers and typewriters,” Richards says. “To say that this is no different from what has happened in the past, the police either fundamentally misunderstand the technology that they’re using and the enormous ability that new technology has, or they’re being disingenuous, and neither should give the people of Coastal Virginia much solace.”
Richards says that with the HRTASN and other surveillance networks, law enforcement often downplay the importance of metadata.
“Metadata is tremendously important,” Richards notes, mentioning that the NSA surveillance program authorized in the Patriot Act was rejected for renewal last spring over the value of metadata. “If you replace the word ‘metadata’ with ‘everybody you have ever called, how long you called for and possibly location data associated with a mobile phone,' ‘just metadata’ could include everywhere we go, everyone we know and everyone we talk to.”
“It starts to paint a very detailed picture of people’s lives in ways in which it’s never been possible before, and this is fundamentally different from the way that this technology used to operate,” Richards says.
Responding via email, Price says the network is used daily by “one to two investigators and/or analysts from each of the five participating agencies and all seven of the task force personnel.” Only those on a “need-to-know” level are authorized to use the system. Information stored in the system unrelated to an investigation is purged every five years. For those suspected of a crime, a court order or search warrant has to be approved by a judge or magistrate to seize information from a phone, but phone records from a telecom provider only require a subpoena.
The legality of the program has been called into question by the ACLU of Virginia, saying it violates the same act as the long-term collection of license plate information did. When contacted for this story, a spokesman for Virginia Attorney General Mark Herring confirmed that the office had looked into the legality of the network but that no opinion had been issued.
As surveillance continues to play a growing role in our daily lives, what, if anything, should be done?
Gastañaga advocates for citizens and elected officials to play a larger role in overseeing how these technologies are implemented and help create the policies that govern their usage.
“We think the police should be collecting information on people they have reason to believe have done something wrong, instead of collecting information about law-abiding citizens that they have no reason to,” Gastañaga says.
Last year, for instance, the ACLU of Virginia praised the town council of Ashland for voting against storing information gleaned from ALPRs.
“We don’t oppose the technology,” Gastañaga says. “We oppose the technology being used without the citizen-involved development of appropriate policies that let the citizen have some say in how they’re being policed.”
For Richards, the solution is for an outside body to monitor the actions of the watchers themselves.
“Ironically, the best remedy for the abuse of surveillance,” says Richards, “is more surveillance.”
Read the full story in the January 2016 issue of Coastal Virginia Magazine.