Unwarranted, p.4
Unwarranted, page 4
Still, despite what everyone says, the Fourth Amendment is not just about privacy, it’s about security. Read it. It says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” To say that forcing you to sit in your own urine, collecting the data on all the phone calls you make, or piling into your home with a heavily armed SWAT team is about “privacy” trivializes what the Constitution is supposed to guard against. It’s about your personal security, and your sense of it. Even if we have, as a society, given a lot of our privacy up to Facebook, Google, and their ilk, they aren’t going to use the information to come take you away. But the government might. And it is just that sense of personal security that must be kept in mind when regulating policing.55
Security v. Security
One of the great dangers of talking about the Fourth Amendment in terms of privacy is that it leads to discussions about whether we should or must trade that privacy for greater security. This sort of talk about a privacy-security or liberty-security tradeoff is common, and yet it is far too simpleminded. Sometimes there is a tradeoff, and to the extent this is true then obviously we need to take our security seriously. “The Constitution,” as wise judges have observed, “is not a suicide pact.” Nor should it be. To insist upon constitutional principles that limit the ability of the government to protect us from serious threats would be sheer folly.56
But constitutional rules are not there to hobble us; they were designed to enhance our security by preventing precipitate or foolish action. The Framers were neither stupid nor reckless, and many had risked their lives fighting for independence. They fundamentally understood the value of liberty, and equally well understood the necessity of government’s ability to act decisively, out of expedience.57
Let’s put emergencies aside and consider how the ordinary rules of constitutional law actually aid sensible decisions. Things like separation of powers and checks and balances, judicial review, warrants and probable cause—these are not simply obstacles to getting the job done. They are tools to make sure the job gets done properly. Our constitutional system was designed to slow down intemperate thinking on the notion that most of the time deliberation—public deliberation—would lead to better ideas and results. It is human nature to act rashly at times, and it is particularly understandable with policing, which is mission-oriented and aimed at our greatest threats. That’s what these constitutional systems are designed to guard against.
Even in real emergencies, though, constitutional procedures can be enabling rather than crippling. In making this very point, my colleague Stephen Holmes—a political scientist specializing in constitutionalism and national security—tells the gripping story of his daughter’s horrific accident, after which she was rushed to the emergency room. She needed blood fast and he was eager to see the infusion started. Instead, the emergency room personnel went through an elaborate and time-consuming ritual of reading her name and blood type from her wristband, and comparing it with the donor blood. Then, maddeningly (hurry up!), they switched roles and did it all again. To the uninitiated this looked like a foolish, potentially deadly delay. But these seemingly annoying protocols exist because careful decision-makers had come to realize that more people die from transfusions with the wrong blood type than they do during the delay to get it right. It is precisely in times of emergency that people act rashly, make mistakes, injure people, or even get themselves killed. This is why emergency responders are encumbered by detailed rules and procedures, in which they drill endlessly. In emergencies, preplanned and broadly agreed-upon procedures are more important, not less so. Really protecting our liberty—our security from government—means having rules in place that guide (and, yes, limit) government, so that it does not react badly, or overreact, when things are going wrong.58
Efficacy
Finally, one of the strongest arguments for taking the Constitution seriously insofar as it relates to policing is that doing so might actually make us safer. This, too, is a point that often gets missed in the usual privacy v. security debates. Does allowing the government to collect all our phone information bolster security? Or is it a hugely costly and time-consuming exercise that seems appealing given modern technology, but actually is of very little value? There are experts—people who, like the rest of us, don’t want their families blown to bits—who believe it is the latter. Given the secrecy surrounding policing, it is often hard to assess whether what is being done is working. In the rest of government, we rely on cost-benefit analysis (CBA) to evaluate policy. Yet, as the Vera Institute of Justice, a respected think tank, said in a 2014 report, “Although CBA is a well-established economic method, it has not been widely used in criminal justice.” 59
The question that should concern all of us is efficacy. Are those responsible for policing this country doing so in the most effective and efficient way? In a way that is most calculated to keep us safe and secure, while intruding into our liberty no more than necessary? No one expects perfection by the police, but are we even coming close? It is precisely for this reason that we need democratic examination of policing up front, and a set of constitutional rules that work to ensure efficacy, not simply giving police a blank check. A constant theme of what follows is that democratic and constitutional policing may well make us more safe.60
FIXING POLICING, TOGETHER
Given the extent of government overreaching—which by now should be plainly apparent, and there is much more to come—and serious questions about the efficacy of these practices, it is time to set aside labels and politics and join together to fix the problem. Powerful voices, usually on opposite sides of the political divide, today are unified in expressing concern about our criminal justice system. This is a healthy sign.61
Fixing policing is the responsibility of all of us—including the police. One of the most hopeful aspects of the current situation is that increasingly a growing number of thoughtful, dedicated law enforcement personnel are acknowledging the problems and challenges we face. They realize that for policing to work best, it must have the trust of the people. To have that trust, the people must participate in policing decisions. But it is also the case that the people cannot possibly make sensible decisions about policing without respectful and serious conversations with the police themselves.
This, ultimately, is the lesson: It’s time we all take responsibility for governing policing. For too long now, we’ve been cowed by threats (real and imagined) to our safety and security, and beguiled by overwrought assertions of the need for secrecy and flexibility. We’ve chosen not to be bothered by the grimy task of figuring out where the lines of proper policing rest. By failing to do so, we have jeopardized our liberty and security both. It’s time to take the Constitution seriously when it comes to policing—not just as a baseline set of rules for what is and is not allowed, but as a guidebook on the democratic governance of one of society’s most vital functions.
PART I
Democratic Policing
Democratic policing is the idea that the people should take responsibility for policing, as they do for the rest of their government, and that policing agencies should be responsive to the people’s will. Of course, democracy in the United States does not mean the people make all the decisions all of the time. If that were the case, no one would have time to lead their everyday lives. It means, rather, that our representatives make decisions for us, in an open and transparent way. Those representatives can include policing officials themselves, who have expertise in what needs to be done. But what democratic policing requires, at bottom, is that rules are in place before policing officials take action, that the public has an opportunity to participate in the formulation of those rules, and that the rules are available for all to see.
Applying this familiar model of government to policing poses certain challenges. In part those challenges are historical; we’ve left policing officials to make decisions on their own for a long time now. Fundamentally changing how we do things is going to be a big shift. All the more so because part of the reason policing is not subjected to close democratic control is that our representatives don’t see much profit in writing rules for the police. So we are going to need to find a way to motivate the process of popular participation in the governance of policing. Then, even after we overcome those hurdles, we have to take account of the special nature of policing. Popular governance requires transparency, but policing sometimes needs a certain amount of secrecy. So we have to figure out how to accommodate those competing considerations.
This first part is about how we tackle these challenges in order to achieve democratic policing. Chapter 1 discusses the history of policing and the problem of transparency v. secrecy. Chapter 2 talks about the need for public rules to regulate policing, why legislators don’t deliver them, and how policing agencies themselves could. Chapter 3 answers the question many may have, and that needs to be addressed sooner rather than later—why can’t the courts just supervise the police? Chapter 4 then explains how judges actually could help spark the process that is needed to democratize policing.
1
POLICING IN SECRET
The public can’t participate in setting policing policy if people don’t know what is going on. It’s as simple as that. If anything should be obvious, it is that transparency is essential to democratic governance. Yet a veil of secrecy has shrouded policing for much of its history. Some of this is necessary, but much of it is habit. If democratic policing is to be a reality, we need to start by sorting out when secrecy is appropriate in policing, and when the veil must drop.
THE SECRET
February 11, 2014, was “The Day We Fight Back.” Around the globe, a raft of consumer-friendly Internet companies, like Reddit, Tumblr, and Mozilla, and groups such as the Electronic Frontier Foundation, Human Rights Watch, and Amnesty International, sponsored a loosely knit series of events against mass surveillance. Chicago’s event—a march starting at Daley Plaza, in Chicago’s Loop, and ending in a dinner at Timothy O’Toole’s Pub—was hosted by Restore the Fourth Chicago, “a non-partisan political group of concerned individuals dedicated to restoring our Fourth Amendment rights.”1
Among those in attendance in Chicago was Freddy Martinez. Martinez, a youthful techie with a degree in physics, had developed a preoccupation with a law enforcement device he’d read about, one that scoops up cell phone transmissions. The device works by tricking cell phones into thinking it is a cell tower. The cell phones then ping it, revealing their unique identity numbers—their IMSI, or international mobile subscriber identity—as well as their locations.2
Although it goes by many names—including cell site simulator, or IMSI catcher—the device is mostly called a “Stingray.” It’s one of many brands made for law enforcement by the Harris Corporation, a large defense contractor. Stingrays can even capture content from cell phones—effectively wiretapping them. It is indiscriminate, though: when being used, a Stingray captures the data of all cell phones in the vicinity.3
Martinez’s interest was part technical and part political. He had come to suspect that the Chicago police were using the device to conduct mass surveillance, and in particular to spy on peaceful protests. He was hardly alone in his suspicion. Now-public documents reveal the Miami police used a Stingray during demonstrations over the proposed Free Trade Area of the Americas. A Christian Science Monitor story suggested the same was occurring in Chicago. Martinez had begun to wonder whether, by fighting fire with technology fire, the Stingray could be defeated.4
While Martinez was struggling with the technical problem of countering the Stingray, a friend suggested filing a Freedom of Information request. And so he shot off an email to the Chicago Police Department (CPD): “I am seeking records pertaining to the purchase or reception of any IMSI catchers, commonly known as Stingrays (a trademark of Harris Corporation).”5
Eventually Martinez, aided by his attorney Matt Topic, sued the City of Chicago for the information. In return they got a handful of IMSI-catcher invoices. As the local CBS affiliate reported, “The Chicago Police Department has finally acknowledged that it had purchased cellphone interceptor devices back in 2008.” The story noted that when CBS asked the very same question ten months earlier the CPD had “denied it.” 6
Martinez and Topic filed more requests, trying to get answers to a host of important questions about the use of Stingray devices. What sorts of surveillance were they being used for? Do the police get warrants, or other permission from judges, first? Are judges being told the truth about what devices the police are using? Is the data that is captured stored somewhere? How is that data being used? Who has access to it? Are there protocols governing how and when a Stingray can be used? Has the CPD done any analysis of whether using a Stingray is even constitutional?7
It was like pulling teeth. The CPD hired a fancy law firm and quickly spent over $100,000 fighting off the requests. The deflections came shotgun style: No responsive documents exist. If they do exist, they are sealed from public view by court order. In any event, the information is a national security secret that is protected by federal law. Besides, it’s a trade secret. And so on.8
The CPD’s responses raised more questions than they answered. Court records do get sealed away from the public, but then they regularly get unsealed to respond to FOIA requests when the events are over—so why not these records? How is it a trade secret when Harris had filed public patent documents with much of the requested information? Given major constitutional questions about Stingray use, why was there no legal opinion in place?9
But the really odd thing was this: while the CPD was playing “I’ve got a secret” with Martinez and Topic, news about the use of Stingrays by law enforcement was popping up all over the country. Like mushrooms after a downpour. The secret they were struggling to keep was hardly a secret at all.
As details emerged, things got more curious still. The Anaheim Police Department released a letter on Stingrays (basically saying they couldn’t say anything). Journalists noticed that Anaheim’s letter looked an awful lot like one released in San Diego. And in Gwinnet County, Georgia, too, for that matter. In Martinez’s case, the CPD offered up an affidavit of an FBI agent named Morrison about why this all must be kept under wraps. A Google search revealed Morrison was filing similar affidavits throughout the country.10
It turns out that for at least a decade the federal government had been subsidizing state and local law enforcement purchases of Stingrays—but with that money came a big catch: law enforcement could not divulge anything about the device. To anyone: to judges, to public officials, in court, under oath, nothing. It was in the contract with the Harris Corporation. And just to make sure matters were clear, the FBI made local law enforcement sign nondisclosure agreements (NDAs) as well. As the story leaked out, it became obvious the FBI was orchestrating a campaign of noninformation.11
Policing officials argue that this game of cat-and-mouse makes us safer. They can’t answer questions about Stingray use because “much like a jigsaw puzzle, each detail may aid in piecing together other bits of information” on what the government is doing. It would, as the FBI stated in a prepared press release to be used by local law enforcement, “provid[e] criminal elements with the ability to circumvent these devices.” Not everyone sees it that way. “It’s ridiculous,” argues Hanni Fakhoury, an attorney at the Electronic Frontier Foundation. “It’s secrecy for the sake of secrecy. It’s not actually a public safety issue now.”12
SECRECY’S COSTS
Stingrays indisputably have a role to play in law enforcement. One St. Louis judge, who does seem troubled by the “broad” way law enforcement is using them today, says they nonetheless are doing “miracle work.” He had a case where a Stingray was used to catch a murderer. The FBI claims the technology is used in a variety of contexts: “It’s how we find killers, it’s how we find kidnappers, it’s how we find drug dealers, it’s how we find missing children, it’s how we find pedophiles.”13
But like many things in life, the question is whether all this sneaking around is worth the costs. Or even whether the secrecy surrounding the use of Stingrays is necessary. And it is at that level that Freddy Martinez and Matt Topic aren’t buying it.
For one thing, Martinez and Topic are leery of how the Stingrays are being deployed, and in particular of whether the police are spying on peaceful, lawful protesters. The Chicago Police Department has a bad history this way. For decades its “Red Squad”—to quote a rather conservative judge—“spied on, infiltrated, and harassed a wide variety of political groups,” including those that “were not only lawful … but also harmless.” Martinez and Topic both worry the CPD is using Stingray technology to build up a database of protesters. “We just don’t know,” Topic says. “They aren’t disclosing any information.”14
Even if the Stingray is used only for perfectly legitimate criminal cases, Topic and Martinez had plenty of reason to suspect the police were not being straight with judges. To conduct most electronic surveillance, the government needs some sort of a court order—a warrant, even. Given the secrecy provisions in the contract with the Harris Corporation and the FBI’s nondisclosure agreement, were cops accurately explaining to judges what they wanted to do? In Charlotte, North Carolina, the judges themselves learned the answer was no after the local media obtained some documents through a FOIA request. It turned out that the Charlotte-Mecklenburg Police Department (CMPD) had had a Stingray since 2006, yet the police didn’t even bother to go to court for an order until 2010. Then, when they did go to court—between 2010 and 2014—they didn’t come clean with the judges about what they were doing. Court records suggest that a Stingray may have been used in more than five hundred cases, but law enforcement still didn’t quite say so. (Since this all became public, the Charlotte Observer reported, the CMPD has “revised” its court filings to—these are the CMPD’s words—“improve the effectiveness of the process and provide greater transparency.”)15
