Computers, Privacy & the Constitution

Serendipity in Law Enforcement

-- By KarmanLucero - 11 Mar 2016

This essay addresses the growing capabilities of law enforcement to circumvent traditional barriers in investigations, how the law so far has not kept up with these developments, and what should be done about it. Traditionally, the law has not limited the capacity of government actors to investigate but rather has incentivized certain investigative techniques over others. The following are two examples of this dynamic.

The Wall

The National Security Act created CIA without any law enforcement powers. Investigations after the Watergate scandal revealed improper uses of intelligence collection capabilities and both Congress and the judiciary actively engaged in establishing a wall between intelligence and law enforcement. Even after the passage of FISA in 1978, the Supreme Court introduced the “primary purpose test” that asks whether a FISA request is made pursuant to intelligence gathering or law enforcement ends with the understanding that FISA’s purpose should serve the former and not the latter. After the 9/11 attacks, the government issued a report discussing the hindrances caused by this wall. It is interesting to note that the ultimate cause was not the rules established by the wall per se but rather the culture of hesitation produced by the rules. The FISC attempted to continue to limit the extent to which law enforcement utilizes FISA surveillance capabilities. However, their requirements were reversed on appeal with the appellate court stating that any previously defined wall was an assumption with no basis in the Constitution, or FISA, especially after its expansion under the Patriot Act. The wall thus disappeared. The court was particularly persuaded by the governments claim that the use of law enforcement “may well be the best technique to prevent [agents of a foreign power] from successfully continuing their operation].

Making Serendipity- Fruit of the Poisonous Tree

As a matter of fact, the police have always had the capacity to break into people’s homes and take things. The law has never forced law enforcement to be less physically or technologically equipped than the general public. Instead, the doctrine established by Silverthorne prohibits the use of illegally obtained evidence in a trial. Also, the law has never prevented individual law enforcement officers from being able to stop a crime that they witness in real time. For example, if a police officer witnesses a transaction involving legal drugs, there is no requirement that they have first investigated and gathered other evidence before acting to arrest the actors involved. While the Silverthorne doctrine seeks to discourage trespassing on civil liberties by prohibiting the use of illegally obtained evidence at all, it states that the knowledge thereby attained does not become “sacred and inaccessible”. In other words, law enforcement can still obtain the knowledge from an independent source, from independent investigations (even if they lead to the exact same evidence, see Murray v. US), and, as in the above example, by stumbling upon it serendipitously. Forbidding certain actions, such as seeking a subpoena based on what one knows from illegally obtained evidence, has prevented abuse of the latter.

Current Law

After the expansion of FISA, this protection has arguably become less meaningful. There is now no FISA provision or certification requirement that “precludes the Government from using normal investigative techniques to seek evidence, while at the same time using FISA-based surveillance to seek… information that is otherwise unobtainable”. This potentially allows the government to freely access large government and other databases without any legal barriers. A federal court has already ruled that acquiring data from a pen register without a search warrant is not a 4th amendment violation because the information was voluntarily conveyed. The court elaborated by stating that while technology continues to advance, the legal analysis “remains fairly constant”. In other words, the government can use massive databases to get around any illegally obtained evidence and effectively create their own serendipitous encounters (eg stumbling upon illegal websites or happening upon an otherwise unknown suspects information) with current and potential future law breakers. After Holder v. Humanitarian Law Project, courts are not required to give the government’s definition of dangerous speech great deference. While it is still law that no US person may be considered the agent of a foreign power solely based on First Amendment protected speech, a probable cause determination “may rely in part on activities protected by the First Amendment, provided [it] also relies on activities not protected by the First Amendment. Of course, the difference between the two is far from clear and subject to national security deference. Whether law enforcement will continue to have access to these broad powers is still an open battle. There are some causes for optimism, such as the decision in Klayman v. Obama that found telephone metadata collection to most likely be unconstitutional. If this decision expands into more formalized law, it would be more difficult for law enforcement to use massive database as a basis for creating serendipitous encounters. Unfortunately, ‘protective’ laws often raise as many questions as they answer. For instance, Klayman would require the government to segregate out any unconstitutionally collected metadata. Is this even possible? Also, current in camera review has the court assess the legality of FISA collected data by observing the following factors: indications of possible misrepresentation of fact, vague identification, a significant amount of nonforeign intelligence information, and others. While these factors are a start, they are subject to the discretion of individual judges and by nature remain secret. While the information and processes remain mostly secret, the potential for abuse reaches dangerous levels.

The route to improvement here is primarily editorial, and can be seen in the first and last paragraphs most clearly. At the top of the draft, remorseless editorial realism would have noticed that the declared theme is too impossibly ambitious for 1,000 words. So some narrowing of scope should be demanded, both to control the material necessary and avoid the "out of hundreds of relevant possible illustrations I will choose apparently at random two, whose idiosyncrasies could well overwhelm and systemic value they have" effect, and to allow a tighter and more specific argument.

The consequences of overbreadth are to be seen in the long, drifting, final paragraph, whose nominal subject is "current law," but which actually tries (and fails necessarily) to tie up the too-large package containing these two dissimilar instances rattling around in it. Here too, editorial effort should have started by attempting to red-pencil the sentences into some order, only to conclude that a larger reorganization and refocusing effort was necessary.

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r2 - 12 May 2016 - 11:58:03 - EbenMoglen
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