tv The Communicators CSPAN August 22, 2016 8:00am-8:34am EDT
roosevelt is her top role model. >> you can watch this and other programs online at booktv.org. >> you're watching booktv on c-span2 with top nonfiction books and authors every weekend. booktv, television for serious readers. >> next on "the communicators," a discussion on the legalities of law enforcement's use of cell phone tracking. then, the sec considers how to protect consumers from robocalls. and live at 9 a.m., a discussion on the impact of the 1996 welfare law signed into law by president clinton 20 years ago today. >> host: and this is "the communicators" where we look at the intersection of public policy and telecommunications. this week a look at law enforcement and cell phone tracking.
our guests, neema sink giuliani, legislative counsel ott the aclu, and mike doucette who is a commonwealth's attorney in virginia. how do police use cell phone tracking today? >> guest: we use it a number of different ways. obviously, we use it to try to find individuals in realtime as well as historical information, try to get that information as to where people have been in the past. in order to solve crimes that have occurred or are about to occur. so, but we do use it very much in that capacity. >> host: in your view, is it an effective tool? >> guest: it can be, absolutely. i mean, i can hi of one particular -- i can think of one particular very gruesome homicide we had in lynchburg a couple of years ago where while the case wasn't resolved by cell tower the information, that basically broke the case. we would have never found the suspect but for the information. so it can be very helpful.
>> host: ms. guliani, are there restrictions on how the police can use cell phone tracking? >> guest: based on what we've seen, there's often not important restrictions. i think it's important to talk about how some of these devices work. you may have heard of stingray, one of the cell phone-tracking devices often used by law enforcement both at a federal and a local level. and the way they operate is essentially by impersonating a legitimate cell phone tower. and as a result, what they allow are police to gather things like location, information or serial numbers of not just a specific target's phone, but all target phones, but all phones in that area. in some cases they can also block or jam devices from making calls. you know, and given these extraordinary implications, the impact on the rights and the privacy of not just the individual, they're really all individuals under the range of the device, what we're seeing is
law enforcement, you know, often lackey protections to make sure that the devices are used appropriately. in some cases we've seen police use these devices without a warrant, we've seen a lot lack of policies around what information must be purged. generally, the information about these devices has not been made public. and all of this is very concerning. >> host: mike doucette, should police have to get a warrant? >> guest: well, now, if we're talking stingrays or we're talking cell tower information, i mean, there's sort of a number of different areas, a number of different technologies. and let me be sort of a disclaimer. i own a smartphone, that doesn't make me smart on this technology. i'm a practitioner, i'm a prosecutor, deal with these cases all the time. but, you know, if we're talking, you know, we have stingrays, we have historical cell tower information, we have realtime
location through third parties, there's all different legal consequences and legal considerations for all three of those. and so, but when you're talking about stingrays, you know, should there be a warrant requirement? i think, yes, personally. and, in fact, in virginia our legislature a couple of years ago required that. i mean, we as prosecutors got together with the aclu and other groups, state police, and we passed legislation to make it clear to law enforcement in a stingray sort of situation that you do need, you have to have a search warrant. it's not clear as far as constitutional law at this point many time, although i think we're probably getting close to that. but i agree that a lot of this information has not been, not gotten out. you know, when we talk about a stingray -- and keeping in mind a stingray is a brand name, and it's sort of like q-tip or scotch tape or that sort of
thing, but it's become almost a generic term like those. but when you're talking about a stingray, these are, basically, devices that are compelling phones to give their location to them. to this particular box that law enforcement has. and the company that produces the stingray has a nondisclosure agreement with just about every law enforcement, if not every law enforcement agency. so there's been a problem with getting the information out. a lot of law enforcement agencies are not disclosing the information dealing with stingrays, and it has probably not been the discussion the about that at least in the courts that there ought to be. >> host: let's bring dustin volz of out arers into this conversation, he covers cyber and surveillance policy. >> thank you. you mentioned the nondisclosure agreements. one of the things that often leads to is a situation where stingrays might be used in a case, but it's not made known to a judge or even the defense attorney. i guess why, why are law enforcement authorities so accepting to have nondisclosure
agreements, and is that a fair court process where they might not even know that's how the evidence was collected? >> guest: well, in the -- i want to make a disclosure in the sense that we in lynchburg do not have stingrays. i'm going by the information i've read and gleaned from looking at various authorities. my understanding is before the harris corporation will sell the stingray to anybody, they require a nondisclosure agreement. the law enforcement agencies have -- i mean, to be perfectly honest, law enforcement basically does not want to disclose this information because it leads to people asking questions. well, you know, that's okay. we -- it's already for people to ask questions. we need to be more transparent. we need the public to have more trust in what we're doing. and so, again, in virginia we do require a search warrant before we can use a stingray. so whatever agencies that are in
virginia that do have stingrays, they have to have a search warrant. and it's going to be some sort of disclosure, there's going to be some sort of notice as far as that is concerned. but i will agree, there are other jurisdictions. i've read a lot about baltimore where baltimore has a number of stingrays and have used them numerous, numerous times, in the thousands, and very little disclosure to the point where there's, i mean, they've dropped cases rather than disclose the information. so i think to have this discussion whether it's today, whether it's in the courts, wherever it might be, i think that it's only going to be, lead to positive things personally. >> host: neema, do you want to respond to that about the nondisclosure agreements? should the fbi, local police be able to use a surveillance technology that they are only able to use if they sign these nondisclosure agreements? >> guest: it's a problem, but i do think it's important to understand that this secrecy has been condoned by the federal government. we have seen it on two levels.
on one hand, we've seen, you know, local prosecutors in some jurisdictions, you know, withholding this information from even judges who are reviewing applications. so, for example, in tacoma, washington, we found judges who said after the fact, hey, i approved applications, and law enforcement didn't tell me that what i was approving was a stingray device that had a all of these other implications. you know, in baltimore this was a case where a judge was asking a question of a local attorney, and he said, well, i signed a maundies closure agreement, and i think the judge rightfully responded, you didn't sign one with me, you know? i deserve of to have information. even beyond judges, what we're seeing is defendants and their attorneys not being told how information that's being used against them was gathered. and that's something that we generally, you know, the constitution generally recognizes. if you're taken to court and the government seeks to charge you with a crime, you have a right to know how the evidence was gathered existence you. but often they're not told that. you know, in maryland they estimate that there could be several hundred cases where
individuals were not informed of this. you know, aclu filed several foia requests, and we found e-mails from the department of justice to local law enforcement and police directing them and saying, hey, if you're going to use information about a stingray in court, you know, refer to it as information from a confidential source, not information from a sting ray. so this isn't just, you know, law enforcement officials or attorneys, you know, not being aware of the devices and not being aware of the procedures, but rather it's been, you know, secrecy that has been condoned by the department of justice and one where the department of justice needs to change its policies to make sure that information about the devices is disclosed appropriately to the public, to the judges and to criminaldefendants. >> guest: now, i don't practice in federal court, but it's my understanding the doj has implemented a policy that requires for federal use of a stingray that they do, in fact, have a search warrant. and where i get that from, i
mean, there was a case that was recently cited in the fourth circuit which made a footnote that doj now has this particular policy. they've had it for the last year. prior to that, they did not have that policy, but now they do require a search warrant. one of the other things i want to draw a distinction with is the court orders that neema's been talking about, those are 2703-d court orders. those are, basically, pursuant to the stored communications act, and they, they have a standard that is not up to probable cause. it's not the same as a search warrant. but it's not a totally standardless procedure. there are, i'm sure there are instances where there's no order at all. but when they do get the orders, there's a court review of this particular information. now how thorough those orders are, i think a lot of that depends on how much information is put in those particular orders and what questions the judges are asking. i mean, i think it's incumbent on our judiciary to have at
least a working knowledge of what these things are and what they're doing and what they're signing. if they don't know what they're signing, don't sign it until you get more information. >> guest: could i just respond, i think, to one point? you're right, the department of justice last year did issue a policy, and it was a step forward in the sense that it said, you know, the default should be for federal agents getting a warrant before they use a stingray. but unfortunately, the policy masker you know, two glaring loopholes with regards to that requirement. the first is, it doesn't apply to states and localities, even states and localities who receive federal funding to buy stingrays. so if you receive a million dollars from the federal government to purchase a stingray, you're not bound by that new policy or that requirement. the second is, you know, that policy the department of justice and similar policy that was issued by the department of homeland security or have loopholes to that warrant requirement. so, for example, the policy says that you to don't need a warrant in so-called exceptional circumstances. it doesn't define "exceptional." we know exceptional is not
emergency, because there's already an exception for that. but we don't know in what cases are law enforcement not getting warrants when they deem it so-called an exceptional circumstance. so, you know, while it is a step guard that we're now, finally, over a decade after these devices were first started to be used now we have policy that suggests a warrant is required, there's still a lot more that needs to be done to tighten up that -- >> host: and the justice department guidance doesn't affect other agencies as well. something that's come out even the irs, for example,s has used stingray technology x they're not necessarily bound by that warrant requirement either. i think a lot of people are surprised that these agencies use in the technology. i mean, why would the irs need to use a cell phone tracking technology like a stingray? >> guest: you know, those are all great questions. we haven't seen guidance but for guidance from department of justice and department of homeland security. and what i think speaks to is the need for legislation and better policy on this. you know, we can't leave it
to -- the reality is that it took embarrassing news stories, several congressional inquiries and over a decade for the department of justice to even issue that limited policy. you know, that's simply not the way it should work when we're using surveillance technology. it shouldn't be let's put the technology out on the streets and worry about the pryce concerns and the constitutional -- the privacy concerns and the constitutional concerns after the fact. we need to switch and flip that mentality where we have a robust debate in congress and within the public about technologies before we deploy them. we think about questions like when should they be used, what privacy policies should exist, you know, how should people be notified. all of those that are questions that should be answered on the front end, not the back end. >> host: mike doucette, as an elected official in the commonwealth of virginia, does it make you uncomfortable that the private corporation is signing a maundies closure agreement with a law enforcement agency? -- nondisclosure agreement with a law enforcement agency? >> guest: not having seen the
language, yeah, i would certainly question what the language was. we have certain constitutional requirements we have to live by such as disclosing exculpatory evidence, disclosing information pursuant to discovery. and we can't be bound by some contract with a private entity that says, oh, well, this trumps your constitutional requirement. yeah, so i would have a particular problem with that. but i would have to look at the language and see what it says, because if it said i could not disclose it regardless, then i'd say i'm not signing it, you know, take your equipment. and keeping in mind that we can do this another way. you don't have to have a stingray. the stingray, what the stingray does is it allows law enforcement to do it directly. but we can always ask for a court order for realtime location data that the cell phone provider then provides to the, to law enforcement. it's a little more cumbersome, but it works just fine. and, again, in virginia we also
require a search warrant more that. i know some jurisdictions do require a 2703-d order which has a lesser standard, but, you know, we can get this information without having to go through that stingray process. we don't have to have that nondisclosure agreement if we choose not to have it. >> host: have you used that tool regularly? >> guest: as far as -- >> host: the search warrant? >> guest: the search warrant? we have not. we tend to use more historic cell tower information. in the sense that -- now, keep in mind, i don't do investigations. i get the cases from law enforcement, i don't have an investigator in my office, and that's the way it is in most offices in virginia. there may be other jurisdictions, i know, for instance, in rhode island and delaware, the prosecution is done by the attorney general's office. so there may be different jurisdictions where their involvement is earlier on. i've not had the occasion. there certainly may be the occasion where we'd ask for a search warrant to a third party
cell phone provider to ask for that realtime location day. but, you know, we -- data. but, you know, we do have that route available. >> host: neema singh guliani, do you have a problem with law enforcement having access to that tool? >> guest: you know, when it comes to requesting location information, our position has always been that the constitution requires a warrant. most courts when it comes to realtime collection have generally been in line with that, and the department of justice and most jurisdictions say a warrant is required for realtime gps location. in terms of historical information, you know, the information of where you been for, let's say this past six months or eight months, many jurisdictions don't require a warrant. they use a lesser standard. flrveg we don't think that -- the aclu does not think that's consistent with the constitution, but this is an issue that the courts still need to resolve or congress needs to act. you know, i think the average person if you tell them, hey, i think i can track where you've been for the past six months,
whether you've been to the doctor, to an aa meeting, to a church, would find that to be extremely sensitive information. and as technology progresses, we're finding that historical information is also increasing in accuracy, you know? it's not just the general area where you've been, you know, could be the floor of a building that you're on. and as technology develops, i think what we need are the courts and congress to step in and say, look, this is very sensitive information. you should get a warrant. law enforcement should get a warrant, that's what the constitution requires, that's what most people want to have happen. >> guest: and i think that the constitutional requirements are a little more complicated than all that. i mean, you start by looking at united states v. jones decided by the supreme court dealing with gps devices. the majority of the opinion is based on the dress pa story -- dress pa story notion. you look at the concurring opinion dealing with what's called the mosaic theory.
and basically what it's -- and i have to give credit to professor kerr at george washington law school because he's the one that came up with that. the mosaic theory is rather than looking at a sequential fashion where we normally do in fourth amendment jurisprudence where we say, okay, is event a a violation of the fourth amendment, if no, is event b, if no, is event c a violation of the fourth amendment, if no, then the answer is, no, it is not a violation. under the mosaic theory which was adopted by the concurring and later adopted by a fourth circuit three-judge panel which was recently reversed is that you might have a situation where there is no fourth amendment violation until a passage of time. and if that mosaic -- so this piece of the tile may not be a fourth amendment violation, but eventually we put enough pieces of tile together, you've got this mosaic, and now you've got
a fourth amendment violation. so you've got that tension between those two, and then you've got this third leg of the stool, and no pun intended, called the third-party doctrine. and so in a lot of the cases now you look to see whether or not the third party doctrine is implied. and that's the case that was recently decided by the fourth circuit en banc, united states v. graham, they basically said, no, this information from cell phones is being provided to a third party, and there's no reasonable expectation of privacy when it goes to a third party. now, that was based on two cases from the 1970s that were decided by the supreme court. and the question is, at this particular point in time is, are these cases dealing with technology that didn't exist in the 1970s, is that going to be how we're going to decide these particular caseses? and so in one cay i agree with neema -- in one way i agree with neema. this is tough for case law to develop.
and justice alito, in his concurrence in jones, talked about this is really a realm for the legislatures because they can act quickly, they can use more information, they're not bound by stare decisis like the courts are. and so thises a realm for the -- this is a realm for the legislature. and so we see things like, again, in virginia, you know, we're trying to balance this sort of bright line test versus following the case law. well, we basically gave guidance to our law enforcement by saying the general assembly of virginia said, okay, you want to do realtime location data? you want to do stingrays? you've got to have a search warrant. historic cell tower information, that's different in the sense that -- and to my knowledge, it's not near as accurate as neema makes it out to be. cell tower, historic cell tower information is, basically, you've got a 120-degree angle on your tower, and the range goes maybe as far as two miles. so you've basically got -- you
could see within four square miles where someone's phone might be. now technology grows and grows expo yen cially -- exponentially, and it might get to the point soon where it is more accurate, but right now it's not that accurate, in my opinion. >> that case, decided a few months ago, you mentioned third-party dong trip. one of -- doctrine. one of the dissenting judges said customers don't realize they're handing over -- this is not data they're knowingly giving away and it's not part of the contract that they have with the company. so where do you see third-party doctrine going? is this going to lead to the supreme court reviewing it at some point? >> guest: you know, it's interesting, you know, the fourth circuit was the fifth circuit to rule on historic cell tower information. all five have applied the third-party doctrine. you know, the dissent may have
talked about that, but the dissent was outvoted 12-3. and so 12 of the judges on the fourth circuit said, no, the third-party doctrine applies unless, unless the supreme court says differently or -- and they basically said, congress, you know, here's an opportunity to delve into this, and if you choose to delve into it, you're more appropriate for it than we as courts are. but the fourth circuit has basically said it is not up to us to get rid of the third-party doctrine. now, should -- and they also offered it to the supreme court. said, supreme court, you want to get rid of the third-party doctrine, you want to get rid of 40 years of jurisprudence. we are going into some brave new worlds between whether we eliminate the third-party doctrine, whether we eliminate the sequential model and go to a mosaic theory. mosaic is, i mean, that's almost unworkable. i can't give guidance to a cop as to, okay, you're okay here, you're okay here, you're okay here, but on the seventh day, oh, no, no, no, now you've crossed the line.
we do know that under united states v. jones that 28 days is too long. we don't know before that. i think, again, that's where it's appropriate for the legislature to make that particular call. >> host: neema, would you like to respond? doesn't need the review of the third party? >> guest: you know, i think the idea of the third-party doctrine in today's day and age would bother most people. the idea that all of us use cell phones, we use e-mail providers, a lot of our private information passing through third parties, and there have been courts that are acknowledged that there are limitations to third party doctrine. you know, in the sixth circuit they said, well, just because you use a provider to send your e-mail doesn't mean that shouldn't be a warrant requirement and doesn't mean you don't have an expectation of privacy. and i think that, you know, many of the cases that are relied on to sort of support this idea that, oh, well, just because you gave your information to a third party whether it's a phone company or another company, you
have no constitutional rights, and you have no reasonable expectation of privacy. those cases are dated, and i don't think they really reflect the way we use technology today and the expectation of privacy that people have. the other point that i think it's important to make is about the accuracy of this information, you know? courts who have looked at historical cell site location information, many of the cases are old, and many of them have relied on the reasoning, well, this isn't very accurate. and that's not necessarily true in today's day and age. it depends on how many cell towers are in an area. so let's say you live in an urban area where there's a lot of cell phone towers, the precision could be quite accurate. there's also things called micro cells. people want faster and better service. so they have these tinier cells to boost internet or phone service in a particular area. and because of those, you might be able to pinpoint cell phone location to the floor of a building because a may crow
cell -- micro cell may only serve one building or one floor. we're seeing historical cell phone information is becoming increasingly more accurate. it may pinpoint where you're in a home, in a church in an aa meeting. and because of those reasons and because of the sensitivity that even one data point might have, you know, i think that there is a need to put in place a warrant requirement. and, you know, whether it's congress and the legislatures who do that or whether this is an issue that the supreme court or subsequent courts ultimately decide, i do think it's important to put in place a lot of policies that protect people's information when it comes to that type of data. >> host: where would you like to see it decided? >> guest: i think that et, i think that the issue is ripe for congress and for legislatures. unfortunately, what we often see is the courts lag behind technology. you know, if it takes two years, three years, five years or for the court to make a decision on something, often the technology has eclipsed the issue that they've examined. and you saw -- heard that in the supreme court's opinion in jones
where they, they urged congress to, you know, have a role, to be forward-leaning and put in place legislation. and it's important to know it's not just phones that have your location information these days, it's all kinds of devices. you know, whether they're, you know, fitness devices or other apps that often track location, you know, to provide people services, we're seeing many different companies who now are going to have access to location information, very sensitive location information. and for that reason, i do think it's important that congress be on the front end of seeing where technology is leading and putting in place the requirements to make sure that people feel secure and private. i mean, the last thing you want is people saying i'm not going to use new device, or i'm not going to use this new app because i'm worried that my information isn't secure. >> you mentioned baltimore earlier. there's within some evidence to -- there's been some evidence to suggest that places like baltimore and chicago after the
ferguson grand jury decision that fbi was flying planes over those, and some of it even suggests that sting rays were being used to track those protesters. saw this in any -- is that in any way, in your view, an appropriate use of this technology? >> guest: no, i can't con tone that. i won't condone that. >> what purposes do you think they would be using that for? >> guest: i think that stingrays -- this is my opinion, my own personal opinion. stingrays have a use. it is basically in those exigent circumstances where you have to act now or never or pursuant to a warrant as may be appropriate, and i think that -- and, again, this is personally. and i know we'll probably disagree on this one. there's an active mode and a passive mode. the active mode with stingrays is that they send out a signal. they ping the phone. and i'll just say phones for the sake of simplicity. they ping phone, the phone pings back, says here i am.
there'ses also a passive mote where, basically, the stingray just collects -- every minute or so your phone will send a signal out to closest tower, here i am, that way verizon, nextel, t-mobile, whoever it is knows that when a call comes in for your phone, to send it to my pocket. because my phone has just pippinged it a minute or ago. so sting rays can act in a passive particular mode. i think that because the third-party doctrine is still alive at this particular point in time, if they're using stingrays in a passive mode, i think that is a lawful use of that. but i think that when you're in active mode and you're pipping and indiscriminately pinging, you're not looking for a particular pone, you're looking for a group of phones, you want to do, basically, spying, i can't condone that. >> based on your conversations with colleagues in other states or at the federal level, is one
of the reasons warrants aren't being used is because there's a concern that the judge would simply not -- >> guest: in virginia, certainly, warrants are pretty new. so i think that there is -- while there's some concern about that, there's a lot of concerns about how to use the warrants especially in a stingray environment. search warrants are, basically, i mean, they're designed for static environments where we go to a particular location in a particular town looking if far particular item. drugs, for instance. but when you're using a search warrant for a stingray, you're looking for who knows what, who knows where sort of thing. so the particular aspect becomes problematic. >> host: final word. >> guest: i think it's important to remember whether it's active mode or passive mode, you know, stingrays are essentially mass surveillance devices. you're talking about gathering information of all, you know, phones in a particular range. the u.s. marshals service attaches these devices to planes
to maximize the area that's affected. you know, given the implications of that and given the effect on the rights of, you know, hundreds if not thousands of people at a given time, i do think it's very important that we have very clear standards in place and very clear policies. and right now the reality is we don't. and we don't because the federal government hasn't required states and localities to follow certain guidance, and we don't because there's been a concerted effort to hide these devices. but now that more information about, you know, is aware, we're aware of more information and it's public, you know, congress and the department of justice have a responsibility to put in place better standards. >> host: neema singh guliani is legislative counsel at the aclu and mike doucette is a commonwealth attorney in the state of virginia. thank you both for being with us. dustin volz is with reuters. >> thank you. ..
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