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Armed Drones and the Influence of Big Business on Police Surveillance Technology

The influence of technology companies on surveillance policy decisions, like the recent arming of drones in North Dakota, has serious consequences for our civil liberties.

Armed Drones and the Influ­ence of Big Busi­ness on Police Surveil­lance Tech­no­logy,” by Rachel Levin­son-Wald­man, origin­ally published on Just Secur­ity, on August 28, 2015.

On Wednes­day, the Daily Beast repor­ted that the North Dakota state legis­lature recently passed a bill allow­ing law enforce­ment drones to carry less-than-lethal weapons. In theory, this means that unmanned aircrafts toting bean bags, tasers, pepper spray, rubber bullets, and tear gas could soon be coming to a state near you (at least if you live in Montana, South Dakota, or Minnesota).

Given the phys­ical chal­lenges asso­ci­ated with shoot­ing a projectile from a small flying object, a drone firing bean bags from above may in fact be about as likely as a ‘shark with a frick­in’ laser beam’ attached to its head. Never­the­less, this latest devel­op­ment is concern­ing in part because it show­cases a trend: The increas­ing influ­ence of tech­no­logy compan­ies and other busi­ness interests on the devel­op­ment of surveil­lance policy is creat­ing signi­fic­ant consequences for civil rights and civil liber­ties.

The North Dakota bill, for instance, origin­ally banned all weapons on drones, lethal or not, and required police officers to get a search warrant before using a drone to look for crim­inal evid­ence. But the weapons ban changed once a police asso­ci­ation lobby­ist star­ted visit­ing the state cham­ber, back­stopped by local busi­ness interests.

In one hear­ing, a repres­ent­at­ive of a local economic devel­op­ment group criti­cized both the ban on weapons and the search warrant require­ment on busi­ness grounds. He test­i­fied that it would be “a negat­ive in terms of compan­ies look­ing and invest­ing in oppor­tun­it­ies in the state of North Dakota” if the bill were to restrict drone manu­fac­tur­ers from modi­fy­ing their products to carry weapons, or law enforce­ment from using them without a warrant (though the warrant require­ment did ulti­mately survive).

If some resid­ents are less than pleased that the open skies of North Dakota could be popu­lated by drones bear­ing pepper spray and tear gas — well, that’s the cost of attract­ing busi­nesses to the Peace Garden State.

A long list of other tech­no­lo­gies

A similar dynamic played out in Cali­for­nia several years ago, when a state senator had to back down from impos­ing modest restric­tions on the use of privately-owned auto­mated license plate read­ers in the face of pres­sure from both industry and law enforce­ment lobby­ists.

Auto­matic plate read­ers moun­ted on light poles or police cars can scan every license plate that passes by, at a rate of hundreds per minute or more, and compare them to “hot lists” to help police nab stolen cars, drivers with suspen­ded licenses, and more. While every court to consider the issue has held that the actual letters and numbers on a license plate are fair game for the police, the prac­tice of keep­ing and hold­ing on to all of that scanned inform­a­tion — effect­ively creat­ing a compre­hens­ive search­able data­base of the nation­wide loca­tions of millions of people who have done noth­ing wrong — raises acute privacy concerns.

One state senator attemp­ted to address those concerns by limit­ing the amount of time that private compan­ies could keep the data scanned by their plate read­ers, and ensur­ing that use of the data was restric­ted to law enforce­ment officers. He also proposed that the data be avail­able to police officers only with a search warrant.

Again, private industry stepped in to quash the meas­ure. A Cali­for­nia company that owns and oper­ates a vehicle loca­tion service — and thus has a finan­cial incent­ive to ensure an unin­ter­rup­ted flow of inform­a­tion — supplied friendly police officers with “success stor­ies” of the license plate data­base; those officers in turn shared the stor­ies with the state legis­lature, killing the bill. While these stor­ies were presum­ably true, the fact that they were cherry-picked and supplied by non-law enforce­ment organ­iz­a­tions to be presen­ted by police to the legis­lature high­lights how much power busi­ness interests wield in surveil­lance debates.

Notably, the senator remarked that he had tried to reach a comprom­ise with law enforce­ment to get support for the legis­la­tion, and he wasn’t trying to ban the use of plate scan­ners. But the police still wanted unfettered access to the inform­a­tion collec­ted by the private compan­ies. As the senator put in after the bill failed, “Essen­tially, law enforce­ment’s argu­ment was, ‘We think private-sector entit­ies ought to be able to stock­pile inform­a­tion on law-abid­ing citizens, and that inform­a­tion should be avail­able to law enforce­ment upon request without a warrant or any prob­able cause.’”

A recent article on cell­phone surveil­lance exposed another aspect of this trend. An article in last week’s Wall Street Journal revealed a new type of inex­pens­ive cell­phone tracker being used by law enforce­ment agen­cies. The tech­no­logy is far cheaper than the Stin­grays that have commanded much of the atten­tion when it comes to surrepti­tious police track­ing — several thou­sand dollars compared to $100,000 plus for a Stin­gray. But perhaps even more import­antly, the way this new equip­ment oper­ates is alter­ing the extent of judi­cial over­sight.

Stin­grays are used to find the general loca­tion of a cell phone, and they typic­ally work by pretend­ing to be a cell tower and actively forcing all of the cell phones in the vicin­ity to connect through them and give up their loca­tion. These new devices, by contrast — with equally dramatic names like Jugu­lar and Wolf­hound — “pass­ively” collect the radio waves that cell phones send out whenever they commu­nic­ate with a legit­im­ate cell tower. Rather than divert­ing the phones’ signal, they simply wait for the phone to commu­nic­ate, and collect the flot­sam of that connec­tion.

Not only have law enforce­ment agen­cies (and some legal experts) concluded that their “pass­ive” nature means that police need not get a warrant or court order to use them, but the compan­ies selling them seem to be capit­al­iz­ing on that view. One manu­fac­turer described his law enforce­ment clients as opin­ing that because the device does not actively inter­cept elec­tronic signals, they “don’t have to tell anyone” they’re using it — and sugges­ted that the devices’ exist­ence in that legal neth­er­world is a selling point for the company.

There is no reason to think that the manu­fac­tur­ers of these newer, smal­ler, cheaper tech­no­lo­gies are devel­op­ing them with the express aim of evad­ing judi­cial or legis­lat­ive over­sight. They are likely respond­ing to market pres­sures, and cheaper, simpler devices will always get atten­tion. But as these tech­no­lo­gies become more popu­lar, they will inev­it­ably be marketed as a means to accom­plish surveil­lance goals without the hassle of getting a court order — mean­ing the developers and manu­fac­tur­ers may, whether wittingly or not, signi­fic­antly amplify the govern­ment’s abil­ity to act with little or no court involve­ment to find a person of interest, be it a crim­inal suspect, a novel­ist and critic, or a polit­ical activ­ist.

Finally, the new tech­no­logy of the moment — body cameras — is not immune from these pres­sures either. Taser Inter­na­tional, best known for its produc­tion of stun guns, is now one of the lead­ing manu­fac­tur­ers of police-worn cameras. Taser has been court­ing big city police chiefs who have the power to sign agree­ments that will equip their officers with the cameras; the company is pour­ing money into consult­ing contracts, travel to luxury hotels, and impli­cit prom­ises of post-retire­ment consult­ing gigs. Given the host of unanswered ques­tions about the pros and cons of body cameras, includ­ing whether they actu­ally provide a meas­ur­able bene­fit for the communit­ies being policed, this prac­tice raises ques­tions about whether some depart­ments are intro­du­cing body cameras in part because of enthu­si­astic lobby­ing by a company with a finan­cial stake in the outcome.

Cities and states consid­er­ing the intro­duc­tion of new surveil­lance tech­no­lo­gies — drones, body cameras, cell phone track­ers, license plate read­ers, and more — will need to grapple seri­ously with a range of ques­tions, includ­ing when (and if) the tech­no­lo­gies should be used, what stand­ards law enforce­ment should have to satisfy before deploy­ing them, and what happens with the masses of reveal­ing data they produce. The answers to these ques­tions will have a consid­er­able impact on citizens’ civil rights and civil liber­ties. They should be driven by the demo­cratic process and, in some cases, the courts — not the bottom line of surveil­lance tech­no­logy manu­fac­tur­ers.

(Photo: Flickr/trotapara­mos)