More than 70 North Carolina law enforcement agencies are using automatic license plate readers, cell phone location trackers and surveillance cameras to keep an eye, and a mass of data, on ordinary citizens. And soon, they could add unmanned drones to that list.
Through a series of public records requests, the ACLU of North Carolina uncovered a wealth of information about surveillance technologies used by police and sheriff's departments.
During a legislative briefing, ACLU-NC policy director Sarah Preston and staff attorney Nathan Wessler joined former state senator and criminal defense attorney Thom Goolsby to discuss privacy and surveillance issues.
While surveillance technology is not new, its use by law enforcement is becoming more widespread in the digital age, and regulations have fallen behind. The federal statute that governs warrantless access to cell phone and email records, for example, has not been updated since 1986. Now, regulating surveillance technology is falling to the states, and the ACLU-NC is pushing for legislation that protects the Fourth Amendment by requiring law enforcement to obtain a warrant before collecting certain kinds of digital information on citizens.
"Bills that have been introduced in the past have had bipartisan support," Preston said. "This is a great issue to bring forward right now to build common ground [between parties]. We are really hopeful that we will see legislators move forward, and we're thankful that they are taking an interest in this."
Law enforcement agencies can electronically track an individual location two ways.
First, they can request historical data from cell phone service providers, which log the sector of the specific cell phone tower that transmitted every phone call made and received, every text message sent and received and every time a phone is used to access data such as email or social media sites.
With more people using smart phones, cell phone towers are being built closer together, allowing law enforcement to precisely locate someone using GPS data.
This practice is widespread. The ACLU found that in 2014, AT&T received 30,000 data requests from law enforcement, and that the numbers of requests are increasing monthly. But those requests could easily be regulated by requiring police to obtain a warrant before receiving the data.
Police can also use their own technology to track location with the purchase of Cell Site Simulators, or Stingrays, from private manufacturers. Stingrays mimic cell phone towers by sending signals that trick every cell phone in the vicinity into reporting its unique serial number and other data. Cell phone users would have no way to tell if police were tracking their phone.
Stingray use is shrouded in secrecy. The Associated Press reports that last year the Obama administration instructed police departments not to disclose their use of Stingrays, so it is unclear how much data law enforcement agencies obtain with these devices. But Stingrays can pinpoint an individual cell phone's location down to a room in a building; law enforcement can track cell phone transmissions and record their locations over time. Regulating these devices would require more than just obtaining a warrant, as they gather data from not just one individual cell phone, but from all the cell phones in the vicinity.
"It's vital to address both historical and real time records," Wessler said. "Historical records give police a power that in our entire history they have never had before, essentially a time machine that lets police go back in time and see where you have been in the course of days and weeks and months."
Automatic License Plate Readers —cameras mounted on stoplights, buildings, police cruisers—can capture thousands of license plates per minute, scan them and store the time-stamped images indefinitely. While the readers have many non-controversial uses, such as matching tags to stolen vehicles or capturing traffic violations, their widespread use and the data they store could allow government agencies to map a person's location and movements over time, an invasion of privacy.
The ACLU-NC found that 11 jurisdictions use the plate readers without any state regulation, and some agencies store the information for years, regardless of whether there is any suspicion of a crime. Simply requiring the images to be deleted after 10 days could solve this issue.
Unmanned aircraft, or drones, present a significant new avenue for government surveillance, according to the ACLU. Law enforcement agencies across the country, including in North Carolina, have expressed interest in testing drones, and at least two jurisdictions in the state have purchased drones with surveillance equipment using drug forfeiture funds.
The 2014 budget included House Bill 1066, which ostensibly regulated the government's use of drones. But the legislation contained a long list of exceptions that allowed their use without a warrant.
The ACLU is lobbying to amend state law to limit the use of drones "to instances where there are specific and articulable grounds to believe that a drone will collect evidence relating to a specific crime" or where government officials have obtained a warrant. A March 2014 survey by Public Policy Polling showed that 72 percent of North Carolina voters support requiring a warrant before police could collect information on a person using a drone.
"If you don't cage your dog it runs everywhere in the neighborhood," said Goolsby. "Once you set the limits up, [law enforcement] can function inside that and they will. We need to do it now as these technologies continue to come forward or it will become more intrusive, and that's just going to be the way to do business.
"And that is not the way to do business if you live in a constitutional Republic that you care about."
This article appeared in print with the headline "Watch out"