LANSING, Mich. (June 6, 2019) – On Tuesday, a Michigan House committee held a hearing on two bills that would limit surveillance, protect privacy and hinder the federal surveillance state.
Sen. Peter Lucido (R) introduced Senate Bill 342 (SB342) on May 22. The legislation would prohibit law enforcement officials from obtaining, accessing or using any facial recognition technology, along with any information gathered from such technology. Any information obtained in violation of the law would be inadmissible in court “as if the evidence, arrest warrant, or search warrant was obtained in violation of Amendment IV of the Constitution of the United States and section 11 of Article I of the state constitution of 1963.”
In effect, the passage of SB342 would impose a total ban on the use of facial recognition technology by Michigan law enforcement.
Lucido (R) also sponsors Senate Bill 341 (SB341). Titled The Electronic Information and Data Privacy Act, the legislation would help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
Under the proposed law, police would have to get a warrant before using a stingray, or any other method, to obtain the location information, stored data, or transmitted data of an electronic device in most situations. Law enforcement agents would also have to get a warrant before obtaining information and data uploaded to a remote computing service (i.e. the cloud) or from service providers.
SB341 includes some exceptions to the warrant requirement, including certain emergency situations, if the device is reported stolen by the owner, informed consent by the owner or the user of the device, and in accordance with judicially recognized exceptions to the warrant requirement.
Under the proposed law, any data illegally gathered would be inadmissible in court.
“All electronic information or data and records of a provider of an electronic communications service or remote computing service pertaining to a subscriber or customer that are obtained in violation of the provisions of this act are subject to the rules governing exclusion as if the records were obtained in violation of Amendment IV to the Constitution of the United States and section 11 of article I of the state constitution of 1963.”
The Senate Committee On Judiciary And Public Safety held a hearing on both bills on June 4.
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
Federal, state and local law enforcement agencies are partnering to create a massive, nationwide facial recognition system. The FBI rolled out a nationwide facial-recognition program in the fall of 2014, with the goal of building a giant biometric database with pictures provided by the states and corporate friends.
The Center on Privacy and Technology at Georgetown Law released “The Perpetual Lineup,” a massive report on law enforcement use of facial recognition technology in the U.S. You can read the complete report at perpetuallineup.org. The organization conducted a year-long investigation and collected more than 15,000 pages of documents through more than 100 public records requests. The report paints a disturbing picture of intense cooperation between the federal government, and state and local law enforcement to develop a massive facial recognition database.
“Face recognition is a powerful technology that requires strict oversight. But those controls, by and large, don’t exist today,” report co-author Clare Garvie said. “With only a few exceptions, there are no laws governing police use of the technology, no standards ensuring its accuracy, and no systems checking for bias. It’s a wild west.”
With facial recognition technology, police and other government officials have the capability to track individuals in real time. These systems allow law enforcement agents to use video cameras and continually scan everybody who walks by. According to the report, several major police departments have expressed an interest in this type of real-time tracking. Documents revealed agencies in at least five major cities, including Los Angeles, either claimed to run real-time face recognition off of street cameras, bought technology with the capability, or expressed written interest in buying it.
In all likelihood, the federal government heavily involves itself in helping state and local agencies obtain this technology. The feds provide grant money to local law enforcement agencies for a vast array of surveillance gear. The federal government essentially encourages and funds a giant nationwide surveillance net and then taps into the information via fusion centers and the Information Sharing Environment (ISE).
The federal government also funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
Defense attorney Joshua Insley asked Cabreja about the agreement.
“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.
“Yes,” Cabreja said.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.
The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.
Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal databases.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Simply put, data that doesn’t exist cannot be entered into federal databases.
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