"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.