We cannot walk down our streets, drive our cars, or talk on our cell phones without these activities being caught by ubiquitous law enforcement surveillance. Use a cell phone and your location can be easily discovered. Similarly, the license plates of cars everywhere are being continuously scanned and registered in a database. Facial recognition cameras are scanning pedestrians and drivers at every turn. Next time you are walking in town, look up on the light poles and other high public structures. Smile, you’re on candid camera.
This surveillance undoubtedly helps the cops catch the bad guys. I have seen how these techniques have enabled the police to discover the perpetrator of crime and locate him or her quickly. The techniques also often provide the prosecution with solid evidence. The defendant who says, “I wasn’t there” as defendants do, will often find out that the prosecution has irrefutable evidence that the defendant was there. Maybe the defendant’s cell phone signal was running off a cell tower near the location of the crime, maybe the defendant’s license plate was scanned on the street where the crime occurred, maybe the prosecution even has a picture of the defendant from a nearby surveillance camera, and soon, a law enforcement drone or small plane may capture evidence against the defendant. Defendants are often unaware that they have been surreptitiously surveilled – as indeed we all are!
This comes with a price. Every innocent citizen is caught in this web of surveillance implicating our Fourth Amendment Right to be free from unreasonable search and seizure. Many people are willing to be constantly surveilled in trade off for greater crime prevention. But, the wisdom of our Founding Fathers should not be ignored.
In 2015, the California Legislature passed two laws that addressed some of the new law enforcement surveillance technology. One of these laws requires law enforcement agencies to hold public meetings to seek permission before buying cell phone surveillance devices and to post the rules for their use of these devices online. The devices, most prominently the “StingRay”, can capture cell phone tower signals, which then allow the police to review cellphone messages, conversations, and call logs. This data helps law enforcement catch and convict criminals but it also sweeps up the personal data from innocent parties whose cell phones happen to be using the tower at that time. A recent investigation by the Los Angeles Times found that law enforcement agencies across the state are dragging their feet in compliance with the law or even ignoring it.
Another law passed in 2015, requires law enforcement agencies to get a search warrant before collecting electronic information, with exceptions for emergency situations. This applies to personal electronic data, such as emails, IP addresses, or cell phone searches. But it does not apply to StingRay data or other mass collection devices such as license plate scanners or facial recognition data.
Presently before the California Legislature is a bill that would require law enforcement agencies to publicly disclose the surveillance equipment currently in use and prohibit those agencies from acquiring new surveillance tools without first receiving approval from local officials. The bill requires law enforcement agencies to develop privacy and usage guidelines as well as provide an overview of surveillance activities every two years. This bill aims to balance police surveillance with reasonable safeguards for the privacy and civil liberties of California residents.
Several days ago (August 31, 2017), the California Supreme Court issued a decision that law enforcement’s mass collection of surveillance data, such as the automated scanning of license plates, cannot be considered part of a police investigation. This ruling means that law enforcement can no longer keep these records secret under the public records exemption for police investigation data.
While untargeted, indiscriminate mass surveillance by law enforcement is not going to go away— and will surely become more intrusive—efforts by privacy and civil rights advocates in our Legislature and courts are an important balance to maintaining our rights under the Fourth Amendment in this brave new world.
Orange County criminal defense attorney William Weinberg has been defending those accused of breaking the law for almost 25 years. You may contact him for a complimentary consultation at his Irvine office at (949) 474-8008 or by email at firstname.lastname@example.org.