Police Secrecy Surrounding High-Tech Data Sources -- Focus of ACLU Testimony

Police are tracking people through their cell phones and capturing data on the travels of tens of thousands of car license tags, yet the public can't learn anything about these high-tech surveillances, according to ACLU testimony. These developments were detailed in the ACLU statement to the D.C. Council Committee on the Judiciary oversight hearing on the Washington Metropolitan Police Department held February 29.

Senior Staff Attorney Fritz Mulhauser told the Council how 21st century technology allows phone carriers' computers to keep constant track of cell phones' locations--ready to answer whenever MPD asks where was Mr. Jones's phone last night?

"This is irresistible evidence for police investigators," said Mulhauser; "but is a warrant from a judge needed to get that phone's location, past or present? Or even a reasonable suspicion Mr. Jones was involved in criminal conduct? We can't report, because MPD says the public has no right to know the legal basis for its requests to cell phone carriers, or basic facts on how many times it does this, what it costs, and how the results may be stored and accessed by others."

Sophisticated fixed and mobile cameras are snapping pictures of every tag that goes by and putting GPS coordinates and the picture into long-term memory, accoridng also to the ACLU testimony that discussed also how the MPD has refused to release records explaining how long they keep those pictures and who can get access to the database.

"This testimony follows up on months of effort by the ACLU including requests under the D.C. Freedom of Information Act for records showing key policies," said Mulhauser. "When our government piles up mountains of data on residents' and visitors' car travels, or can access cell carriers' own piles of data on phone locations going back years, the ACLU believes people need to know the basics of how technology may be shrinking the privacy they expect."

"The stonewalling of our requests by the MPD is regrettable," he continued. "The Mayor has overturned several MPD denials where we appealed, yet the police continue to assert weak reasons for their secrecy. People shouldn't have to go to court to learn what their government is doing. A Superior Court judge just a few days ago sharply criticized the MPD and their lawyer for submitting 'transparently false' arguments in support of keeping secret their policies in many areas, including one requested by the ACLU. The people may need to ask legislators to protect privacy for them if officials won't even talk about what they're doing."

Police Chief Cathy Lanier submitted answers to Committee questions in a pre-hearing letter of February 24, 2012. To Question 18 on frequency and policy about cell location data gathering, she acknowledged that it's a common practice. MPD has sought cell location data, she said, 684 times from mid-2010 to the present -- a rate of about once a day. The Chief cited no policy but said generally "an application is made with the court to obtain a search warrant or other court order." And she added "the department does not seek a court order in the absence of proable cause to believe that a criminal offense has occurred." Of course, that's only half the requirement: the other half is is whether there is probable cause to believe the cell phone user committed the offense. She also said the department gets cell data without court involvement in "exigent circumstances." The department brief account in this letter began some transparency but more is needed.

The United States Court of Appeals for the Fifth Circuit is considering a case about the proper legal standard when police seek cell phone location data. The ACLU suibmitted, with others, an amicus (friend of the court) brief arguing a warrant should be required, and only upon probable cause. Other briefs can be found through links here.

The ACLU testimony contained outlines of proposed legislation to regulate both cell phone location tracking and license plate reading.

In addition, the ACLU testified about longstanding problems serving civil rights lawsuits on D.C. police officers.

The press covered the privacy and technology testimony, including WAMU and the Washington Times. Video of the ACLU statement is availble on the D.C. Council site (select the three-hour video from those dated February 29, 2012). The testimony of the ACLU begins at 54:30 and continues to 1:01:47. The chairman asked no questions.

In a supplement to the testimony sent March 10, 2012, the ACLU recommended Council action on five additional areas of concern--

• investigating and taking corrective action where needed concerning treatment by police of the mentally ill in crisis (such as the as-yet-unexplained shooting death of Mr. Jean Louis last year);
• expanding the work of the Office of Police Complaints so it can review complaint handling by the MPD and also the Housing Authority police;
• requiring the D.C. Mayor to submit the mandatory annual report (never as yet turned in) on risky areas of D.C. government and what is being done to head off lawsuits and expensive judgments (such as the recent $950,000 payment for the shooting death of a young man, Deonte Rawlings);
• urging the MPD to learn from the important March 9 court decision mentioned above, in which a judge criticized the agency for excessive secrecy and ordered many policies, handbooks, guides, and memos released because contrary to "hysterical" sworn statements by MPD oficials, they posed no threat to public safety if known;
• reestablishing a forum for dialogue between the police chief and the community on questions of bias, especially in view of concerns in the last year of the transgender community.

UPDATE

New data on the widespread police practice of cell phone location tracking is detailed in an April 1, 2012, story by the New York Times. Based on results of public records requests by ACLU offices nationwide, the Times wrote that phone tracking "has become a powerful and widely used surveillance tool for local police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight." ACLU also has released on-line thousands of pages of records other police departments provided to ACLU requests elsewhere. Senior Staff Attorney Fritz Mulhauser in Washington noted, "this large body of information the Times used in its important story, now available in the on-line database that allows citizens to understand what's going on in over 200 police departments, is in in marked contrast to the stonewalling by Washington, D.C. Metropolitan Police Department to ACLU requests here. The pressure will only grow for more transparency and legislative oversight is needed." In an April 2 story, the Washington Post covered the new release of national data and the limited MPD information available.