DECRYPTING A DEFENSE NEWSLETTER (Vol. 2, Issue 11)
Vol. 2, Issue 11
November 1, 2021
Welcome to Decrypting a Defense, the monthly newsletter of the Legal Aid Society’s Digital Forensics Unit. This month, Benjamin Burger discusses surveillance in the education system and the New York City Police Department’s use of security threatening drones. We review the use of pole cameras under the Fourth Amendment after the decision in Carpenter v. United States and Diane Akerman answers a question about serving subpoenas on Facebook. Finally, we conclude with our new events calendar which lists upcoming digital forensics and surveillance related programs.
The Digital Forensics Unit of the Legal Aid Society was created in 2013 in recognition of the growing use of digital evidence in the criminal legal system. Consisting of attorneys and forensic analysts and examiners, the Unit provides support and analysis to the Criminal, Juvenile Rights, and Civil Practices of the Legal Aid Society.
The Legal Aid Society’s Digital Forensics Unit is expanding! We have two positions currently open for applications: Analyst/Examiner and Staff Attorney. Apply now to work on novel issues involving technology, surveillance, and criminal defense.
In the News
Surveillance At The Schoolhouse Door
Surveillance technology has gained a foothold in American schools, resulting in a system that invades the privacy of students with little corresponding security benefits. Non-profit educational news site The 74 recently explained how the technology company Gaggle monitors students’ online behaviors to flag “troubling” content. Similar school surveillance recently caused a group of lawmakers to write letters to companies like Gaggle, Securly, GoGuardian and Bark Technologies, requesting explanations for how the companies are preventing their tools from discriminating against students of color and violating federal law.
The 74 reviewed the use of Gaggle’s technology in the Minneapolis public schools. The program tracks students’ online behaviors by combing through the data in their school-provided Google and Microsoft accounts. The surveillance tools monitor communications between students and scan files for keywords, images or videos that are indicative of violent or sexual behavior. Gaggle’s moderators flag content and send it to school officials. Schools across the country have adopted similar surveillance systems, often times for high prices and without any indication that the programs actually prevent self-harm, violence, or inappropriate sexual behavior.
Although Gaggle’s algorithm appears relatively crude, in that it only scans for a discrete set of keywords, the consequences can be significant. Communications can be forwarded to law enforcement officials for criminal investigation, which may disproportionately affect students of color. LGBTQ students also appear to be excessively impacted, as the system flags keywords related to sexual orientation.
While safety and security are important goals in the education system, it is crucial that potential solutions deployed in this area are both effective and proportional to the perceived threats.
NYPD Drones: A National Security Threat?
A new report in the The Intercept revealed that the New York City Police Department utilizes unmanned drones manufactured by a company deemed a “national security threat” by the United States. NYPD’s drones are sourced from Da Jiang Innovations, more popularly known as DJI, which is based in China. DJI drones are very popular among recreational drone enthusiasts and law enforcement agencies because of the low cost. As explained in the Intercept’s report, because DJI is a Chinese company, it is inextricably linked with the Chinese government and Chinese Communist Party. As a result, the Department of Homeland Security issued an intelligence bulletin advising that it had moderate confidence that DJI was providing “critical infrastructure and law enforcement data to the Chinese government.” The Defense Department also banned the purchase of DJI products because they “pose potential threats to national security.”
Regardless of whether DJI provides this data to the Chinese government, the fact remains that NYPD uses DJI drones to surveil New York City. These drones are used to police large-scale gatherings, like parades and festivals. Furthermore, although NYPD claims that their drones are not equipped with facial recognition technology, they are able to create video and photo images that can be used by facial recognition systems. As Digital Forensics Unit Supervising Attorney, Jerome Greco, explained to the Intercept, “[t]he average New Yorker is more concerned about the NYPD versus what may leak back to China, and there’s a significant concern about the NYPD using these drones for spying on individuals, particularly at mass protests.”
In the Courts
Pole Cameras In A Post-Carpenter World
The Supreme Court’s decision in Carpenter v. United States, 138 S.Ct. 2206 (2018), was a watershed Fourth Amendment decision. In Carpenter, the Court held that the Fourth Amendment requires law enforcement to obtain a search warrant to seize seven or more days of historical cell site location information (CSLI). At a minimum, Carpenter recognized that individuals have an expectation of privacy in their physical locations and movements over time.
Although Carpenter dealt with relatively new technology in CSLI, its immediate effect in the nation’s courts has been to reopen a debate about an old technology: cameras. Specifically, whether law enforcement can deploy “pole cameras” to surveil an individual’s movements in and out of their home. Pole cameras are simple technology. The police affix a camera to a utility pole or some other stationary object and aim it at an individuals home. By sifting through the recorded footage, law enforcement is able to track the individuals entering or leaving a home and their movements on the property. Sometimes pole cameras are deployed to record over obstructions, like privacy hedges and fences, that would block public view of the home. Another benefit for law enforcement is that the pole camera can record all day for an extended period of time. It is more efficient and cost-effective than similar human surveillance.
Post-Carpenter, federal and state courts have begun to reassess whether the Fourth Amendment requires law enforcement to acquire a warrant to deploy a pole camera. Generally, federal courts have sided with law enforcement and held that individuals do not have a legitimate expectation of privacy in the outside, publicly viewable areas of their home; however, many of these cases pre-date Carpenter. See United States v. Bucci, 582 F.3d 108, 116-17 (1st Cir. 2009); United States v. Vankesteren, 553 F.3d 286, 288-97 (4th Cir. 2009); United States v. Jackson, 213 F.3d 1269, 1280 (10th Cir.); but see United States v. Moore-Bush, 982 F.3d 50, 50 (1st Cir. 2020) (mem.) (scheduling en banc hearing to review panel decision affirming Bucci on stare decisis grounds); United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987). As the Seventh Circuit Court of Appeals recently explained, “the government's use of a technology in public use, while occupying a place it was lawfully entitled to be, to observe plainly visible happenings, did not run afoul of the Fourth Amendment.” United States v. Tuggle, 4 F.4th 505, 511 (7th Cir. 2021). Despite the holding of Tuggle, the Circuit Court emphasized that evolving surveillance technologies were a threat to the Constitution: “[a]s technological capabilities advance, our confidence that the Fourth Amendment (as currently understood by the courts) will adequately protect individual privacy from government intrusion diminishes.” Id. at 527.
Conversely, many of the state courts that have addressed this issue have held that use of a pole camera does require a search warrant under either state or federal constitutions. See Commonwealth v. Mora, 485 Mass. 260 (2020) (concluding that “continuous, long-term pole camera surveillance targeted at the residences of [the defendants] well may have been a search within the meaning of the Fourth Amendment, a question we do not reach, but certainly was a search under art. 14” of the Massachusetts Declaration of Rights); People v. Tafoya, 2021 CO 62 (2021) (holding that continuous use of a pole camera for three months without a warrant violated the Fourth Amendment).
Eventually, the Supreme Court will have to decide how far Carpenter has reoriented their approach to the Fourth Amendment. A ruling on whether a warrant is necessary to use a pole camera will be one of the first tests as to whether the Court is committed to expanding the protections of the Fourth Amendment or whether Carpenter is a anomaly in the Court’s jurisprudence.
Ask an Attorney
Do you have a question about digital forensics or electronic surveillance? Please send it to AskDFU@legal-aid.org and we may feature it in an upcoming issue of our newsletter. No identifying information will be used without your permission.
Q. The complaining witness in one of my cases posted about the case on Facebook. They don’t use their real name on Facebook. I want to subpoena the account information from Facebook to show who uses the profile. Where do I serve the subpoena?
A. The short answer to this question is California. Facebook will not accept service of subpoenas in NY, despite maintaining large corporate headquarters in the state, citing Daimler AG v. Bauman, 571 U.S. 117 (2014). This adds an extra step, and a lot of time, to obtaining the requested material. Obviously, a New York State court has no jurisdiction in California, only a California court does. So how then, do we, attorneys in New York State, subpoena Facebook?
Every state has codified a version of the Uniform Act for Securing Attendance of Witnesses from Within and Without the State in Criminal Proceedings. This law, in the simplest terms, provides a mechanism for one state to enforce a subpoena from another state.
What is the process? First, draft a subpoena as you normally would. Attach that subpoena to a draft order under C.P.L. § 640.10, along with an affirmation stating why the witness (or documents) are material. This next part is what takes time. After the local court signs the order, you then need to have an attorney in California domesticate the New York subpoena in that state, and serve it on Facebook. Facebook also has the right to a hearing in California to object to the order, or they may simply waive it and produce the requested documents.
The above is an incredibly simplified version of the process and requirements, but the main takeaway is that it takes a time. Start this process as soon as you think you may need this material in your case.
Small Bytes
How Jamie Spears Spied on Britney Spears Through iCloud (Vice)
Clearview AI Has New Tools to Identify You in Photos (Wired)
Government Secretly Orders Google To Identify Anyone Who Searched A Sexual Assault Victim’s Name, Address And Telephone Number (Forbes)
Google is about to turn on two-factor authentication by default for millions of users (The Verge)
Inspector General Says CBP’s Device Search Program Still A Mess, Still (Ironically) Mostly Undocumented (Techdirt)
Vice Hit With $300M Suit From Controversial Surveillance Company (Daily Beast)
The NYPD Is Using Drones the U.S. Government Claims Threaten National Security (The Intercept)
Android Phones Still Track You, Even When You Opt Out (Gizmodo)
Fraudsters Cloned Company Director’s Voice In $35 Million Bank Heist, Police Find (Forbes)
Governor Wants to Prosecute Journalist Who Clicked ‘View Source’ on Government Site (Vice)
Facebook wants machines to see the world through our eyes (MIT Technology Review)
Motorist fined after CCTV confuses his number plate with woman’s T-shirt (The Guardian)
Here's the FBI's Internal Guide for Getting Data from AT&T, T-Mobile, Verizon (Vice)
Upcoming Events
November 10, 2021
Introduction To Searching ESI In Criminal Cases (NYSBA) (Virtual)
Worker Surveillance in the Age of COVID (S.T.O.P. x RadTech) (Virtual)
Litigating ShotSpotter Evidence: The Science and the Law (NACDL) (Virtual)
When Google Searches for You: Challenging Geofence Warrants (NACDL) (Virtual)
November 15-19, 2021
November 16, 2021
Digital Privacy & You: Know Your Rights (NYPL) (Virtual)
December 1, 2021
Open Source Digital Forensics Conference (OSDFCon) (Virtual)
March 7-10, 2022
Mozilla Festival (MozFest 2022) (Virtual)