Balancing Public Safety and Privacy Rights in the Digital Age

Benjamin Feist, Legislative DirectorACLU of Minnesota

Because Freedom Can’t Protect Itself

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About the ACLU-MN

Nonpartisan, nonprofit organization dedicated to protecting the civil liberties of all Minnesotans under the United States and Minnesota constitutions.

Promote our mission through litigation, public education and lobbying efforts

Affiliate of the national ACLU organization, which has over 500,000 members

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About the ACLU-MN

Not opposed to the use of new technologies in policing, but safety should not come at the expense of civil liberties

Ally and resource on privacy issues

Example: Recent cell phone tracking bill in MN

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New Technologies

Automatic License Plate Readers (ALPR)

Drone Surveillance

Police Body Cameras

Cellular Exploitation Devices

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New Technologies

Powerful new tools allow law enforcement agents to monitor and record individuals’ movements in unprecedented way

Technology is becoming cheaper

Digital data is easier to store, access, and manipulate

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Privacy Issues Overview

Most new technologies used at state and local level

Courts and legislatures have not been able to keep up with rapidly advancing technology

Data retention and classification issues

Public awareness and concern

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Privacy Issues Overview

Feb. 2014: Minneapolis Star Tribune poll found that 63% of those surveyed were “somewhat” or “very concerned” about the amount of personal information that the State of Minnesota and law enforcement collect on individuals

• http://www.startribune.com/politics/246050161.html.

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Mosaic Theory of the 4th Amendment

Cumulative approach to the evaluation of data collection

Long-term surveillance on individuals provides a much richer picture than the discrete data points

More protective of privacy because obtaining and analyzing the full “mosaic” may constitute a Fourth Amendment search even if none of the individual “tiles” trigger constitutional scrutiny

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Automatic License Plate Readers (ALPR)

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Automatic License Plate Readers (ALPR)

Cameras mounted on patrol cars or stationary objects (telephone poles, underside of brides, etc…)

Take a photo of every license plate that passes by, digitizes them and checks plates against databases

Provides an alert to a patrol officer whenever a match or “hit” appears.

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Automatic License Plate Readers (ALPR)

Can help police to recover stolen cars and arrest people with outstanding warrants

Also, routinely stores location information on a vast number of innocent people

Core principle that the government does not invade privacy and collect info on innocent activities just in case citizens do something wrong in the future

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ALPR Controversy in Minnesota

August 2012 media reports on ALPR data retention and classification

Then-Minneapolis Mayor R.T. Rybak’s car was recorded 41 times in the preceding year

Plate data was “public” under MN’s public records law

Now under “temporary classification” until August 2015

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ALPR Legislation

Continuing divide between privacy advocates and law enforcement over retention period for “non-hit” data

ACLU-MN position: limited retention, judicial oversight

Other potential issues: Sharing and selling of data Classification of data (privacy vs. transparency) Use as evidence

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Drone Surveillance

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Drone Surveillance

Unmanned aerial systems (UAS), a/k/a unmanned aerial vehicles (UAVs), a/k/a “drones”

Used for scientific research and agriculture to military and law enforcement operations

Regulated by the FAA, but mounting pressure to expand use

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Drone Surveillance

Who uses (or plans to use) drones? Federal government Some law enforcement Aerial photography Hobbyists Commercial delivery (proposed) University research Other governmental entities

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Drone Use by Law Enforcement

Unlike helicopters or other police vehicles because not subject to practical limitations of manned vehicles:

Helicopters are costly and require trained pilots, launch pad, and flight and ground crews

Rather, drones are cheap, small and quiet

Able to track precise movements

View evidence inside private areas

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Drone Use by Law Enforcement

At least 14 states have already passed laws regulating domestic drone use

ACLU-MN position: Warrant requirement for surveillance in private areas, with

emergency exceptions Data on bystanders should be deleted promptly Government body approval before acquisition Annual reporting on use

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Police Body Cameras

Replacing dashboard cameras in many departments

Technology is getting cheaper

Can increase officer accountability and reduce “he said, she said” arguments

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Police Body Cameras

Need policies on when the cameras are turned on and off

Privacy concerns: Individual victims recorded Potential to invade privacy in homes Recordings may become public

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Resources

ACLU National Reports:

You Are Being Tracked: How License Plate Readers Are Being Used to Record Americans’ Movements (July 2013), https://www.aclu.org/files/assets/071613-aclu-alprreport-opt-v05.pdf

Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft (December 2011), http://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf

Because Freedom Can’t Protect Itselfwww.aclu-mn.org