Our Editorial: Invasive tech needs low-tech approach
In the digital age, threats are encoded, technology is expedient and the legal tradition of limiting the intrusiveness of government simply can’t keep up.
Law enforcement gadgets such as Stingrays, which pretend to be cell towers to trick phones into sharing locations, and “textalyzers,” a developing tool that will tell police whether a phone was in use before a car crash, outstrip legal protections by decades. That disparity jeopardizes privacy and violates constitutional rights.
The solution, however, is low-tech: requiring warrants that inform judges of who’s being tracked and why.
In the last year, The Detroit News has reported a variety of uses of Stingrays — originally earmarked for counter-terrorism — from investigations into fraud to immigration to gun crimes. While efficient at finding suspects, the device also pulls data from bystanders’ phones and interrupts all cell reception.
Warrants establishing probable cause to use technology are optional, so police opt for court orders establishing the lesser standard of relevance, said Nathan Wessler, a staff attorney with the American Civil Liberties Union Speech, Privacy, and Technology Project. He added that there are no rules governing the deletion of irrelevant data, and signing judges often don’t know how deep the invasion will go.
As for “textalyzers,” developers promise it will only access information about phone usage, the AP reports. But common sense would say if the machine has access to that data, it probably has access to personal material, too. Police can already search phones if they establish relevance. “Textalyzers” make the process more efficient, and likely less constitutional.
Once, Stingrays were reserved for military intelligence fighting terrorism. Recall that counter-terrorism, specifically the post-9/11 Patriot Act, completely tipped the scales balancing national security and Fourth Amendment privacy and permitted previously unconstitutional searches.
The act, which passed 357-66 in the House and 98-1 in the Senate, had controversial provisions, including “sneak and peeks,” which permitted searches of homes, businesses and personal property before issuing warrants. The bulwark against these privacy transgressions was supposed to be judicial oversight.
Wessler attributes today’s laundry list of applications of Stingrays to the lack of an overarching legal framework. Police operate under a 30-year-old doctrine that states if individuals willingly share their location with companies through the use of cell phones, that information is no longer private and warrants aren’t necessary.
Wessler calls that an outdated legal fiction that doesn’t make sense at a time when millions leave detailed digital breadcrumbs: One device, such as the Apple Watch, stores data on everything from the wearers’ heart rates to track fitness to when they enter and leave the house to set the thermostat.
Judicial oversight will help regulate such invasive technology. Advocating for warrants that protect privacy will not hamper efforts to protect us from real security threats.
“You have to do both,” said Ian Walters, communications director of the American Conservative Union. “We ought to strike a balance between civil liberties and national security.”
That is why we have three separate branches of government with checks and balances. It’s why judicial oversight demands warrants that specify what technology is in use, why, for how long and how quickly irrelevant data culled during the investigation will be deleted. If judges have the training to make informed decisions about invasive tech, the conflict between investigative technology and civil liberties would shrink.
We are inextricably intertwined with powerful technology that gives all manners of agencies insight into our lives. Fighting technology with technology, however, would be a losing battle.
When it comes to privacy, the law — and the real people upholding it — is our best weapon.