Following the wake of the NSA
leaks, the legality of the surveillance techniques of local and federal
agencies throughout the United States have been questioned. Tracking of
Americans has emerged as one of the most controversial areas of domestic
surveillance. This essay will seek to analyze the arguments of the legality and
illegality of these programs through the examination of the Federal license
plate tracking program and the regional use of Stingray Surveillance.
Stingray Surveillance
The
Stingray Surveillance device allows the holder to track the location of a
mobile phone by simulating a cell-tower. This simulation causes cell phones in
the region to connect to the Stingray device and to transmit their information,
such as phone numbers, unique electronic serial numbers, and phone and
messaging logs, to the database of the Stingray.[1]
This technology is used
throughout the United States by federal and local/state agencies. In
particular, the perceived unchecked use of the device by local police has prompted
the greatest backlash. The American Civil Liberties Union (ACLU) has taken the
lead in opposition against the technology after requesting information from
various Florida departments on the use of Stingray devices and the policies
surrounding that use.[2] The secrecy of the
technology has prompted many questions about the legality of the Stingray
device. One of the main focuses of critics is that police departments
frequently do not obtain a warrants or submit court filings before using the
technology.[3]
This is problematic because it contrasts the policies required for obtaining
information from an actual cell-tower. A cell-tower will provide an approximate
location (rather than the exact location produced with Stingray) and a warrant
is required to obtain this lesser information on the phones from the companies
controlling the cell-tower information.[4] In the instances that a
warrant was obtained prior to the use of Stingray, critics argue that the
wording of the warrant is too vague and does not provide judges with a full description
of the information-collection procedures. Further complications emerge during
the use of Stingray as the cell-phones of innocent persons in the area will
also be recorded by the device.
License Plate Readers
A second case of concern in the
United States is the use of License Plate Readers by the Drug Enforcement
Administration. According to a report by the Wall Street Journal, “The primary goal of the license-plate tracking
program, run by the Drug Enforcement Administration, is to seize cars, cash and
other assets to combat drug trafficking.”[5] However,
concerns have emerged as the program begins to grow. The massive database
created by the DEA through their use of License Plate Readers is now being used
by local and federal authorities handling cases outside of Southwest
border-states and unrelated to DEA investigations, though access to the
database is still controlled by the El Paso Intelligence Center (EPIC).[6] The lack
of transparency into the program, has prompted criticism, as it is unclear
whether the program is regulated by a court or by a set policy.[7]
These examples
are two of many new surveillance-based information gathering procedures used by
federal, state, and local authorities. While these new procedures may be efficient
in apprehending criminals, the secrecy surrounding many of these practices has
called their legality into question. Controversy emerges over the
application of the Fourth Amendment to newer forms of technology, such as
computers or cellular phones. The United States’ common law tradition relies on
precedent and interpretation of society, however, this has left a distortion
between defined constitutional rights and real-world practices. The law has not
evolved quickly enough to the introduction of new technology. In order to
rectify this problem, there must establishment of clear regulations and/or
legislation governing these new procedures.
[1] [1] Nakashima, Ellen.
"Secrecy around police surveillance equipment proves a case’s
undoing." The Washington Post. The Washington Post, 22 Feb. 2015. Web. 22
Feb. 2015.
<http://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html>.
[2] "Florida police
used warrantless 'Stingray' surveillance over 1,800 times." RT America.
RT, 24 Feb. 2015. Web. 24 Feb. 2015.
<http://rt.com/usa/234875-aclu-florida-police-surveillance/>.
[3] Ibid.
[4] Nakashima, Ellen.
"Secrecy around police surveillance equipment proves a case’s
undoing." The Washington Post. The Washington Post, 22 Feb. 2015. Web. 22
Feb. 2015.
[5] Barrett, Devlin.
"U.S. Spies on Millions of Drivers." The Wall Street Journal. The
Wall Street Journal, 26 Jan. 2015. Web. 22 Feb. 2015.
<http://www.wsj.com/articles/u-s-spies-on-millions-of-cars-1422314779>.
[6] Ibid.
[7] Lewis, Renee. "DEA
program capable of tracking movements of millions, ACLU says." Aljazeera
America. Aljazeera, 27 Jan. 2015. Web. 22 Feb. 2015.
<http://america.aljazeera.com/articles/2015/1/27/license-plates-spying.html>.
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