Introduction  “I’ve controlled you since before you knew I existed”-Cigarette Smoking Man, The X-files, Season 10 (2016) (“My Struggle II”)

In the last 20 years, law enforcement has revolutionized its use of digital technology.¹ Broadly speaking, the term “digital technology” refers to computerized systems and devices that generate, store or process data.² As criminal defense lawyers, we not only have to stay current with the diverse array of tech products being developed; we also have to analyze whether their use potentially implicates our clients’ rights. Whenever information about our lives is entered into a computer, we have a corresponding decrease in privacy because the information is potentially accessible to someone else. In that sense, our digital lives can be watched. Rather than an expectation of privacy, we now have an expectation of surveillance. Beyond implications for individual privacy rights, by combining technologies and data sources, law enforcement can conduct mass surveillance of groups of people. Today courts frame the debate about whether mass collection of data violates privacy rights by focusing on the discrete technology being used. For example, whether affixing a GPS tracker

¹ Throughout this article we have highlighted references to specific technologies in bold/black; material that is attached at the end of the article appears in bold/red. ² See generally “Current Issues in Privacy and Technology Law Online Program” Fordham Law School July 24, 2020 (discussion of Katz v. United States, 389 US 347 (1967), United States v. Jones, 615 F.3d 544 (2012), Kyllo v. United States 533 US 27 (2001), United States v. Ahrndt, 475 Fed Appx 656 (9^th Cir. 2021), New York v. Harris 2012 NY Slip Op 22175 (NY Crim Ct 2012); Carpenter v. United States 585 US  2018; “Smart Cities” (inc “Sidewalk Toronto”, commercial behavioral tracking and contact tracing apps); see also “A Twenty-first Century Framework for Digital Privacy”, Neil Richards, https://constitutioncenter.org/digital-privacy/secret-searches-and-digital-civil- liberties to a vehicle without getting a warrant violates the Fourth amendment (Jones, at footnote 2, supra). Because the law will never keep up with the pace of science, analyzing the legalities of particular digital tools is only minimally, if at all, helpful. We have to recognize that information can now be harvested across a multitude of technological platforms and then rapidly combined and aggregated. The Jones GPS tracker problem was a one-dimensional problem; our new challenge is three-dimensional. Not only are our vehicles themselves now GPS-equipped and thus accessible by law enforcement, we are under constant surveillance from license plate readers, city-wide camera grids, security cameras with facial recognition capabilities, cellphone simulators, spyware, drones and WiFi networks. With law enforcement applications in mind, the government and private sector businesses are developing the means to store, access and use all of this information. Unless we shine a light on this world of cyber-policing, we will not be able to effectively defend our clients.

Mass Data Collection

“I’m old-school, Mulder. Pre-Google”

-Dan Scully, The X-files, Season 10 (2016) (Founder’s Mutation) Four key events led to the accelerated development of data aggregation technology and its employment in the name of security by government agencies: the World Trade Center attack in 2001, the release of the first iPhone in 2007, the Edward Snowden NSA leaks in 2013 and the national “War on Drugs” which served as the rationale for allowing surveillance technology and data systems to be filtered from military uses down to federal, state and local law enforcement³.

³ In 2006 the FBI began using a form of electronic surveillance in criminal investigations by remotely activating a mobile phone’s microphone and using it to eavesdrop on nearby conversations. “FBI taps cell phone mic as eavesdropping tool”, Declan McCullagh, https://www.cnet.com/news/privacy/fbi-taps-cell-phone-mic-as- eavesdropping-tool/ Agents obtained warrants to use the technology against members of a New York organized crime family. United States District Court Judge Lewis Kaplan ruled the “roving bug” was legal. Consider that iPhones have internal batteries that make removing them difficult for most users making it difficult to prevent the phone from being remotely commandeered. Examples of recent trends in data aggregation include:

• the rise of software companies that gather information from multiple digital platforms, and organize it⁴;
• companies that install and use artificial intelligence (A.I.) to operate audio/video systems of mass surveillance;
• entities that use algorithms to predict our behavior
• the privatizing of security to contractors who then provide information to law enforcement⁵

Most of us are aware of direct data collection methods: police using mobile fingerprint technology to identify suspects; banks verifying your personal information via voice identification software when you apply for online banking; phone apps tracking interactions with Covid positive individuals or monitoring the location of illegal immigrants⁶. Even more complicated issues are raised when companies and police use apps or software that collects data while remaining hidden from users⁷. For example, in April 2022, Google removed dozens of apps from its Google Play ⁴ “[F]acebook had for years been compiling massive troves of personal data on Americans (even Americans without a Facebook account, as any page with a Facebook-like logo on it can send your browsing activity back to Facebook) and sometime in the mid-2010’s Cambridge Analytica hired a data scientist to put together an app that could suck down that data without Facebook’s knowledge” The Hidden History of Big Brother in America – how the death of privacy and the rise of surveillance threaten us and our Democracy, Thom Hartman, 2022, p. 4 (citing https://www.thedailybeast.com/zuckerberg-maybe-i’m-in-Cambridge-analyticas-files) ⁵ For example, Data Aggregation Software developer Palantir was founded by billionaire Peter Thiel who co-founded PayPal with Elon Musk who now owns Twitter. Thiel sat on the board of Facebook’s parent company for 17 years and helped develop software for Immigration and Customs Enforcement. “The CIA itself was an early investor in the startup through In-Q-Tel, the agency’s venture capital branch. But Palantir refuses to discuss or even name its government clientele, despite landing “at least $1.2 billion” in federal [intelligence] contracts”. See “How Peter Thiel’s Palantir helped the NSA spy on the whole world”, Sam Biddle, February 22, 2017; see also “Palantir, Big Data’s scariest, most secretive unicorn, is going public but is its crystal ball just smoke and mirrors?”, Sharon Weinberger, The Intelligencer, Sept. 28, 2020. On paper, whistleblower Edward Snowden did not work for the NSA, he worked for intelligence agency private contractor Booz Allen Hamilton. Government agencies, like the NSA, contract with private companies to do what they themselves cannot legally do as a way to avoid political controls. ⁶ See “Biden administration giving cell phones to illegal immigrants”, www.foxnews.com, April 6, 2022 (Describing “The Alternatives to Detention Program” which utilizes cell phones and biometric voiceprint for “check-in calls”; “Smartlink” which uses facial recognition technology via a smartphone or tablet to verify identity; and “global positioning systems” which monitors location and movement history through an ankle bracelet). ⁷ The concern about vulnerabilities in cell phones has led to an ethics opinion from the New York State Bar Association that a lawyer has a duty to protect client information stored on the lawyer’s cell phone. See Opinion 1240 (Apr. 8, 2022) (Digest: “If “contacts” on a lawyer’s smartphone include any client whose identity or other information is confidential under Rule 1/6, then the lawyer may not consent to share contacts with a smartphone app unless the lawyer concludes that no human being will view that confidential information and that the information will not be sold or transferred to additional third parties without the client’s consent”; “Social media apps may seek access to this information to solicit more users to the platform or to establish links between users and enhance the user experience. Apps which sell products or services may seek such access to promote additional sales. Apps that espouse political or store after two researchers discovered the apps included a software element that surreptitiously harvested data. The Wall Street Journal reported that the company that wrote the code is linked through corporate records to a Virginia-based defense contractor that does cyberintelligence, network-defense and intelligence-intercept work for U.S. national-security agencies⁸. Public and private sector entities can profile a person by searching public and private databases which contain dates of birth, purchase histories, medical information, digital publications subscribed to, charitable donations, political causes, license plates, and biometric information⁹. Law enforcement agencies themselves do not have to collect all the information they want to use; they can buy it from private companies who are not bound by the same ethical and legal rules. Some businesses are believed to have collected 4,000 to 5,000 data points on over 240 million Americans¹⁰. These companies look at what we do online, they keep track of how long or social beliefs may seek such access to disseminate their views. These are but three examples of how an attorney’s contacts might be exploited by an app but there are more, and likely many more, to come”)

⁸ “Google Bans Apps With Hidden Data-Harvesting Software”, The Wall Street Journal, Byron Tau and Robert McMillan, Apr. 6, 2022; See also “Private Israeli spyware used to hack cellphones of journalists, activists worldwide”, The Washington Post, Daa Priest, Craig Timberg and Souad Mekhennet, July 18, 2021 (“NSO Group’s Pegasus spyware, licensed to governments around the globe, can infect phones without a click”).

⁹ See generally “The Age of Surveillance Capitalism”, Shoshana Zuboff, 2019

¹⁰ Id. In 2014 the Federal Trade Commission issued a report listing some of the basic information companies collect about us: Name-previously used names-address-address history-longitude/latitude-phone numbers-email address- social security number-driver’s license number-birthdate-children’s birthdates-birthdates of family members in household-age-height-weight-gender-race-ethnicity-country of origin-religion (sometimes based on household surname)-language-marital status-presence of elderly parent-presence of children in household-education level- occupation-family ties-demographic characteristics of family members-number of different surnames in household- veteran in household-grandparent in household-spanish speaker-foreign language household (eg. Russian, Hindi, Tagalog, Cantonese)-households with a member who is Hispanic origin or Latino-employed-white collar occupation- blue collar occupation-work at home-length at residence-household size-congressional district-single parent with children-ethnic and religious affiliations-court and public record data-bankruptcies-criminal offenses and convictions- judgments-liens-marriage licenses-state licenses and registrations (hunting, fishing, professional)- voting registration and party-electronics purchased-friend connections-internet connection-internet provider-level of usage-heavy Facebook user-heavy twitter user-twitter user with 250+ friends-member of over 5 social networks-online influence- operating system-software purchases-type of media posted-uploaded pictures-use of long distance calling services- presence of computer owner-use of mobile devices-social media and internet accounts including Digg, Facebook, Flickr, Flixster, Friendster, hi5, Hotmail, LinkedIn, LiveJournal, MySpace, Twitter, Amazon, Bebo, CafeMom, DailyMotion, Match, myYearbook, NBA.com, Pandora, Photobucket, WordPress and yahooHome and Neighborhood Data-Census Tract data-Address Coded as public/government housing-dwelling type-heating/cooling-home equity- home loan amount and interest rate-home size-lender type-listing price-market value-move date-neighborhood criminal, demographic and business data-number of baths-number of rooms-number of units-presence of fireplace, garage, pool- rental price-type of owner-type of roof-year-apparel preferences-attendance at sporting events-charitable giving-gambling-casinos-state lotteries-thrifty elders-life events (retirement, newlywed, expectant parent)-magazine and catalog subscriptions, media channels used-participation in outdoor activities (golf, motorcycle, skiing, camping)- participation in contests-pets-political leanings-preferred celebrities-preferred movie and music genres-reading and listening preferences-donor (religious, political, health causes)-financial newsletter subscriber-upscale retail card holder-affluent baby boomer-working class mom-working woman-African American professional-membership clubs-

how many times we look at certain things, analyze our “likes” and phone data, predict character traits from call records and app usage, offer better prices and services to more desirable individuals and even recognize the user’s emotions from the rhythm of keyboarding patterns; all while remaining functionally invisible. See “Corporate Surveillance in Everyday Life”, Wolfie Christl, June 2017; https://crackedlabs.org/en/corporate-surveillance. What should cause alarm is that all of this information can be packaged and marketed to the specific needs of law enforcement. ¹¹

To highlight the role of digital technology and data aggregation, we offer the following two examples from actual cases in our district.

Case Studies

Case Study 1:             NIAGARA COUNTY (NY) HOMICIDE

People v. Coleman & McEnnis, Indictment No. 2018-442

This case exemplifies the use of various digital technologies commonly used by police to gather evidence or other information. William Coleman and Jonathan McEnnis never thought they would be caught. On November 21, 2018, they robbed a convenience store in the City of Niagara Falls. Sixty-year oldwines-exercise-sporty living-winter activities-hunting-shooting-biker/Hell’s Angel-Santa Fe/Native American lifestyle-new age-organic-member of over 5 shopping sites-daytime tv-bible-leans left-political conservative-activism and social issues-ability to afford products-credit cards-presence of gold or platinum card-credit worthiness-recent mortgage borrower-financially challenged-owns stocks/bonds-investment interests-discretionary income level-credit relationship with financial or loan company-credit relationship with low end standalone department store-number of investment properties-estimated income level-life insurance-net worth or underbanked indicators-tax return transcripts-vehicle brand-vehicle value index of household-propensity to purchase new vehicle and type-Harley-off- road bike-boat owner-purchase information-books or magazines about travel-travel related purchase-highest price paid-date of last travel purchase-air services-frequent flyer-vacation property-vacation type (cruise, timeshares, R.V., casinos)-preferred vacation destination-preferred airlines-amount spent on goods-buying activity-method of payment- number of orders-buying channel preference (internet, mail, phone)-military memorabilia-weaponry-shooting games- guns and ammo-Christian religious products-Jewish holidays/gifts-Kwanzaa gifts-entertainment purchased-type of food purchased-average days between orders-last online order date-online orders $500-$999-offline orders over $1,000-low-scale catalogs-high-scale catalogs-retail purchases-most frequent category-mailability score-women’s plus sizes-men’s big and tall-books-mind, body, self-help-novelty Elvis products-ailment and online prescriptions- smoker in household-tobacco usage-over the counter drug purchases-geriatric supplies-use of corrective lenses or contacts- allergy sufferer-individual health insurance plan-medicare/Medicaid-health and weight loss supplements- reported interest in health topics including arthritis, cholesterol, diabetes, dieting, alternative medicine, beauty/physical enhancement disabilities, organic focus, orthopedics and senior needs.

¹¹ See generally EFF’s Atlas of Surveillance, federal and state law enforcement (see also https://www.fordham.edu/download/downloads/id/14813/current_issues_in_privacy_and technology_law_2020)

Ahmed Alsaid, affectionately known as “Poppi”, was the well-liked store owner. Coleman and McEnnis were experienced criminals. Both had previously been convicted of armed robbery and both were on parole. To prevent their identification, they entered the store wearing hoodies, masks and gloves. Armed with handguns, they saw Poppi behind the register. As he tried to reach for a BB gun that he kept for protection, they shot and killed him. They took 10’s and 20’s from the cash drawer. In-store security cameras recorded video of the robbery but no audio. Leaving the store, they drove a silver Honda SUV to a nearby 7-Eleven. Wearing the same clothing, they held up that store as well. Again, in-store video recorded the robbery. They then fled the scene. The police had little to go on. There was no eyewitness identification; nor did the robbers leave any DNA or other evidence behind. A decade ago these crimes may have remained unsolved. First Assistant Niagara County District Attorney Doreen M. Hoffman has tried countless homicide cases and is not one to walk away from a challenge. But convicting Poppi’s killer presented a test even for an experienced prosecutor. Years ago, the file may have sat in the proverbial corner, waiting for cold case examiners. But with the speed of change today, all it took was a little time. Diligent, boots-on-the-ground efforts combined with 21^st century technology made the difference. City of Niagara Falls Detective Lieutenant Troy Earp reviewed the store security footage. Then obtaining security video from a camera installed on the exterior of a home near the second crime scene, he was able to identify the make and model of a silver Honda SUV driving away from the 7-Eleven. Once Det. Earp identified the vehicle on the video, he used a Vigilant Technologies license plate reader (LPR) to see whether any similar vehicles were in the area of the first

robbery. There was a plate reader hit for one plate matching that make and model. That car turned out to be registered to McEnnis. After he was able to show this vehicle had been in the vicinity of both robberies, Det. Lt. Earp then did a DMV search on the license plate of the silver Honda. It came back to McEnnis who lived in Buffalo’s Bailey-Kensington area. Det. Lt. Earp reviewed McEnnis’ social media profile and his internet browsing history. Internet Service Providers (ISP), social media companies (Facebook, Snapchat, Twitter), and search engines such as Google all save browsing history. In addition, McEnnis had a Google Gmail account so Det. Lt. Earp prepared a search warrant to serve on Google for records of McEnnis’ online activity. Most cell phones are logged into Google these days and most users have their phones set to enable Google to track their phones' location. Law enforcement can then access Google location data. If the criminal had his phone on him when he committed the crime and if his phone was set to let Google generate location information, Google will have a record that can be traced directly back to him. Det. Earp also obtained a search warrant for the cell phone carriers for both McEnnis’ and Coleman’s call detail records to establish a link between them. Coleman, who resided in Niagara Falls, had Sprint as his phone carrier. Sprint provides location data for calls but not for texts messages. Cell tower pings for Coleman’s phone were imprecise and failed to pinpoint his exact location on the day of robbery. On the other hand, McEnnis, had an Android phone. His carrier was T-Mobile which provided critical GPS location information for both texts and calls. Through these cell phone and Google records, Det. Lt. Earp was able to link McEnnis to Coleman and then link McEnnis to the car fleeing the crime scene. Prosecutors then plotted the vehicle’s location

using a map of the area where the two robberies occurred and overlaid it with location points for McEnnis’ phone.

At trial, District Attorney Brian D. Seaman and ADA Doreen Hoffman showed the jury a computerized map, similar to a navigation screen in a car, highlighting the route traveled by McEnnis’ silver Honda on the date of the robberies. Tracking the vehicle using Wi-Fi, they added events and times to the exhibit.¹² To explain this to the jury, the prosecutors called a retired NYPD

• In federal cases the FBI refers to this as a “Pattern of Life” Exhibit”. A “Pattern of Life” exhibit shows the movements of suspects in the days/ hours before and after the commission of a crime. [Exemplar pages from an FBI “Pattern of Life” exhibit are attached]

officer who trains analysts on the software used to plot the locations (“GeoTime”). It was technology, rather than witnesses, that placed McEnnis and Coleman at the crime scenes and secured their convictions.

Other information about the technology used in People v. McEnnis & Coleman

GPS

Personal electronic devices (cell phones, tablets, etc.) or cars with Wi-Fi dependent features connect to Wi-Fi networks and can provide more exact location details than would be available from phones simply “pinging” within the miles-wide geographic coverage area of a cell tower. Global Positioning Systems (GPS), which played a major role in the convictions of McEnnis and Coleman are an area that continues to evolve. GPS Wi-Fi capabilities can be used for more than simply locating a vehicle. For example, General Motor’s “OnStar” system has a car power down feature. The “Stolen Vehicle Slowdown” allows police to contact an OnStar Advisor who can send a signal to disable the stolen vehicle's engine as it is being driven. It gradually slows the vehicle down once the police have it in sight to avoid police chases and assist police in capturing the vehicle. GM’s “Remote Ignition Block” program allows an OnStar Advisor to send a remote signal to a vehicle which has been reported stolen to prevent the vehicle from restarting once the ignition is turned off. It can then locate the car through GPS capabilities. These Wi-Fi connected systems also have drawbacks. Ford’s “Fordpass” system subjects anyone who uses it to having their data captured. If you want to use the remote start feature from your cellphone, for example, you have to sign up for a Fordpass account. Once logged in you are

subject to having your data downloaded and used by Ford. See “Breaking the Datalink with Fordpass”, June 25, 2021,https://www.fordtremor.com. Even deleting or uninstalling Fordpass from your cellphone will NOT disable data sharing once it is established. The data collected can include driving data (speed, locations), mechanical data (performance of car components) and even your voice (per Ford’s privacy policy: “voice commands and other utterances captured when the vehicle’s voice recognition system is in “active listen” state”). In addition to marketing exploits, Ford’s owner’s manuals now specifically warn you they may provide your collected data to the police: “We may provide information in response to requests from law enforcement, other government authorities and third parties acting with lawful authority or through a legal process. Such information could be used by them in legal proceedings”.

LPR’s

  License plate readers can search by make and model or plate number. They can locate historical images of the vehicle by adding a plate number to see where else the car has been driven¹³. Vigilant Technologies, MVTrac and ELSAG are the major private marketers of LPR software technology to law enforcement.

• In addition to Vigilant’s private database, the DEA’s El Paso Intelligence Center (EPIC) is a 24-hour LPR monitoring station which connects the DEA license plate reader system to local law enforcement around the EPIC is a “U.S. Government multi-agency intelligence center, DEA led, staffed by 21 participating agencies in a task force-like environment” which also performs deconfliction between the agencies and maintains “hot lists”.

License plate readers are essentially high-speed computer-controlled camera systems which can be mobile (in police cars) or mounted on streetpoles¹⁴, highway overpasses, etc. These readers automatically collect license plate numbers and photos of vehicles (& sometimes drivers and

¹⁴ In United States v. Tuggle, 4 F.4th 505 (7th Cir. 2021) the Seventh Circuit found no Fourth Amendment search occurred when, without seeking a warrant, police watched the outside of a drug suspect’s home continuously for eighteen months using cheap video cameras they installed on nearby utility poles. The Court distinguished the 554 days of pole camera surveillance of Tuggle from the 28 days of GPS tracking in United States v. Jones and the 127 days of retrospective location data collection in Carpenter v. United States — cases in which the government had tracked actual movements through both public and private spaces. The Court concluded that the camera surveillance “pale[d] in comparison” and was not a search but noted “Cutting-edge technologies will eventually and inevitably permeate society,” changing “society’s expectations of privacy” and potentially causing the Constitution to fail as a “backstop” against increasing surveillance. It called on the Supreme Court or Congress to revisit the expectation of privacy test laid out in Katz. Cf. Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F.4^th 330 (4^th Cir. 2021). In December 2019, the Baltimore Police Department contracted with Persistent Surveillance Solutions (PSS) to track movements linked to serious crimes through the Baltimore Aerial Investigation Research (AIR) program. The program obtained 12 hours of coverage around 90% of Baltimore every day using surveillance planes equipped with cameras. The Fourth Circuit en banc held that Carpenter created a “reasonable expectation of privacy in the whole of [a persons’] movements” and Carpenter distinguished between short-term public movements and longer-term tracking that could uncover personal details through habits and patterns such that it “invaded the reasonable expectation of privacy that individuals have in the whole of their movements and therefore require[d] a warrant”. Since AIR data enabled police to make deductions from the aggregate of individuals’ movements which could identify individuals and was thus a search, the act of accessing the AIR data without a warrant violated the Fourth Amendment.

passengers) and record locations, dates and times. This data is then uploaded to a central server. In addition to capturing license plate data, photographs generated by the system can reveal images of the vehicle, the drivers and passengers as well as immediate surroundings and details such as bumper stickers or other identifiers (see www.eff.org/pages/automated-license-plate-readers- alpr ). In addition to historical data, it allows officers to generate a “hot list” in real time for GPS

coordinates for where they might locate a vehicle.

Home security cameras

  Police in the McEnnis/Coleman case relied on video from a home security camera which a homeowner installed on the outside of his house. Private video systems such as Amazon-owned RING expand the virtual net that may capture information relevant to criminal investigations. These video doorbells and residential security cameras come with agreements that users will allow images to be automatically shared with local law enforcement. Police request and access these images through a portal set up by the company. There are over 2,000 cooperative agreements with law enforcement agencies nationally, triple the number since before the Covid pandemic. This creates an accessible “neighborhood” of publicly accessible cameras. Police can collect, keep and share the video with whomever they like without any initial showing of probable cause. RING now has developed “NRT” (near real time) facial recognition capabilities to add to its cameras. Homeowners themselves can also share footage on RING through the “Neighbors” app on their computer or phone. The Neighbors app includes a law enforcement page where police can post alerts and request video from people who live near a crime scene. Police can see whether any of the cameras in the area recorded a video around the time of the crime. RING also provides cameras to the police and in return police departments give RING access to their call logs or incident reports which it then uses to post alerts on its Neighbors app. Google’s Nest has also

begun handing over data to law enforcement. Similarly, Operation SafeCam is a new law enforcement tool being used in Niagara County. It allows citizens to register other types of home security cameras. While these cameras are often used on the outside perimeter of a house, they are also commonly used inside, for example, to monitor a nursery, remotely watch a pet, or protect homeowners from theft.¹⁵

Real-Time Crime Centers (“RTCC’s”) or Crime Analysis Centers (“CAC’s”)

At McEnnis’ and Coleman’s trial, the prosecution used experts from the NICAC (Niagara Intelligence and Crime Analysis Center)¹⁶ and the ECAC (Erie Crime Analysis Center) (See “Real-Time Crime Centers” infra at p. 29; See also Appendix B for information about intelligence sharing centers providing support to local law enforcement agencies). These data aggregating centers are staffed with intelligence analysts who scour digital information to assist with investigations. They are centrally located, multi-jurisdictional collaborative ventures used for conducting in-depth regional analysis of crime and sharing the results of those analyses with the local police, the New York Division of Criminal Justice Services and other law enforcement groups.¹⁵ In People v. SirWilliam Hardy, Erie Co. Ind #00672 (2017). Defendant, a paraplegic, set up Google Nest cameras throughout his house and controlled the system through his home computer. He was monitoring and recording home health aides, who he suspected of stealing from him while he was being showered or toileted. The defendant, who suffered from mental illness, experienced a psychotic break. He shot his father at point blank range. Not only was the homicide captured on the Nest video, the defense was able to go back 30 days to obtain video stored by the system in the cloud. This video showed the defendant’s decompensation over a period of time that was vital to establishing an insanity defense.

¹⁶ See “Empowering Communities to Fight Crime: D.A., Police Chiefs Sign Falls Crime Analysis Center MOU Wednesday, Expanding its Crime-fighting Reach Throughout County”, Niagaracounty.com, August 22, 2017 (“Niagara County District Attorney Caroline A. Wojtaszek …joined by . . .Acting U.S. Attorney J.P. Kennedy, will sign Memoranda of Understanding with all the police departments in Niagara County, ensuring they share their crime data with the county’s Niagara Intelligence and Crime Analysis Center. . .Wojtaszek will also be welcoming her office’s new Criminal Intelligence Officer, who will be posted at NICAC. The new D.A.’s office member began work this week, and will be available to assist any law enforcement agency in the county.”)

The Erie County Crime Analysis Center was launched in 2008 as part of a network of 10 real-time crime analysis centers supported by the New York State Division of Criminal Justice. RTCCs are often equipped with walls of monitors with live feeds from camera networks. Analysts are often able to access a wide variety of surveillance technologies, including automated license plate readers, gunshot detection, predictive policing, and facial recognition. RTCCs (unlike fusion centers discussed infra at p. 28) tend to be focused on local level activities and a broader range of criminal investigations.

Other Examples of Digitial Law Enforcement Technology

  The McEnnis/Coleman case is a straightforward example of how police rely on a virtual or digital technology to identify suspects and build cases. Below are a number of other technologies that are used by law enforcement. Even if the resulting information is not admissible, police may nevertheless use it to develop investigative leads.

• Cell Site Simulators- in use since
  • “Stingray” is the brand name of one commercial model of a cell site simulator (others include “Kingfish” “Crossbow”). Some are handheld, others are the size of a briefcase. They can be plugged into a car’s cigarette lighter. Phones periodically let cell towers know they are present even if no call is being made. Simulators act as cell towers and force the phone to connect with it to capture the phone’s ISMI (international mobile subscriber identity). Once law enforcement has the ISMI they can issue subpoenas to the phone carrier for customer information and metadata. If police already know the ISMI they can program it into the simulator and detect if it is nearby or send “spoof” texts to other devices that are communicating with it or infect the devices with They can also act passively to grab whatever data and communication is

occurring in real time including the content of texts, emails and voice calls. Some military versions can “instruct” encryption to decrypt itself.

• A “Dirtbox” (DRT) is an ISMI catcher made by a subsidiary of Boeing and used in The United States Marshals have been using Dirtboxes since 2007 and can collect information in bulk.
• Agents have referred to simulator technology in court documents as a type of “pen register device” –like a passive ear on the network-- without revealing the devices force the phones to connect with them and that they can track inside a private Sometimes agents indicate they located a person through a “confidential source” when it was actually through the use of simulator technology. In 2015 DOJ required all agents to get a warrant on probable cause to use this technology, required them to describe the technology for the judge, and use it only to collect location and metadata, not content. This policy is not law, however, and does not include state and local officers except when they are working with federal agents. It applies only to criminal investigations not national security – are Black Lives Matter protests, for example, a criminal or a national security matter? See “How cops can secretly track your phone: A guide to stingray surveillance technology which was deployed at recent protests” Kim Zetter, 7/31/20, https://theintercept.com (discusses how DEA & USM provided support to law enforcement during Black Lives Matter protests. DEA sought special authority from DOJ to covertly spy on protesters. Both DEA and USM have airplanes outfitted with stingrays which can be used to track mobile phones or collect data and communications from mobile phones in bulk)

•       Facial Recognition Software–

• Software companies scrub Instagram and Facebook and other social media for photos organized into databases.
• The FBI has facial recognition systems that access and scan over 411 million photos in state and federal databases.

• The DHS predicts by 2023 facial recognition software will be used on 97% of travelers.
• Companies are developing facial recognition software for use with police body cameras. See “Wolfcom Embraces Body Cam Face Recognition Despite Concerns”, Govtech Biz, Andrew Westrope, March 20, 2020 (“Last June, Axon, the nation’s largest body-cam provider, took the advice of its ethics advisory board and agreed not to put facial recognition software in its cameras, nor produce face- matching technology for the foreseeable In October, the state of California passed a law forbidding its police departments from using body cameras with facial recognition software.This has not dissuaded Wolfcom, a police and security-tech vendor, from developing one.”)
• The use of facial recognition software in schools has also been controversial. In 2020, New York State passed legislation (A6787D/S5140B) sponsored by Assemblymember Monica Wallace (D-Lancaster). It created a moratorium on the use of biometric identifying information in New York State schools, including facial recognition technology, pending further study by the New York State Department of Education. In adopting this legislation, the legislature cited the need to proceed with caution regarding this technology given its broad social ramifications and the potential for abuse. The legislation requires the Commissioner of Education to consult with stakeholders, hold public hearings, and issue a report to the legislature and the governor assessing whether and under what circumstances use of facial recognition and biometric identifying technology is appropriate in school in New York State.

•       Biometric Identification-

• Mobile fingerprint devices like INK (“identity not known”) scan a suspect’s fingerprint anywhere and get an identification in 60
• Other biometric and behavioral characteristics are being used by the law enforcement and intelligence These include: voice recognition, palmprints, wrist veins, iris recognition, gait analysis and heartbeats.
• The FBI has developed a database called Next Generation Identification (NGI). It is the world’s largest and most efficient electronic repository of biometric and criminal history
• Voice technology is being developed to do things like control police vehicles while officers are driving so the officer can do dictate notes or file reports (Ford has filed a patent for a self-driving police car). When you open a bank account and sign up for online banking you’ll be told they use voice recognition software to verify you are an authorized person. Amazon and others have developed “voice biometrics” which allow them to identify participants on a phone call by the sound of their voice (Amazon itself provides secure cloud storage for law enforcement agencies).

•       Robots:

• robotic cameras are used for visual and audio surveillance of potential crime scenes. Some are “throwable”. Some are powered by an electronic motor and can move and climb while being operated wirelessly.
• In China “AnBot” patrols banks, airports and schools; in Dubai touchscreen robot officers patrol tourist attractions.
• Hospitals are experimenting with autonomous robots used to transport drugs, bedding, food, drugs and lab samples and save on labor costs. However, robot manufacturer Ethan has recently disclosed its robots may be vulnerable to hacks which allow hijacked remote control of the robot, spying on patients using the robot’s built-in cameras or allow users access to restricted areas. ¹⁷

17 “Autonomous robots used in hundreds of hospitals at risk of remote hijack”, Meczyki.net, April 12, 2022

•       Drone/aerial surveillance:

• “throwable” drones are now used by officers to gain an aerial vantage point during footchases.
• “pocket drones” are small, inexpensive drones that attach to the back of a cell phone case and stream video back to a phone
• drones are also used to do 3-D mapping of crime scenes
• GPS equipped “darts” stick to fleeing vehicles and let authorities track the vehicle’s movements without a high speed pursuit.

•       3D crime scene digitization:

• In 2016, the Niagara County Sheriff’s Department started using a Faro 3d scanner and hand-held device to measure crime scenes in minutes. It shoots millions of reference points, can rotate the view 360 degrees and provide a computerized model of the scene. In a recent homicide trial, the bloody crime scene was photographed using these special laser tools. A 3-D computer image of the actual rooms was then created to “walk” the jurors through the crime scene at trial and make them feel like they were actually See People

128. Danielle Allen, Livingston Co Indictment number 2017-128. Additionally, the scanner can be used for autopsies to show bullet entry wounds or bruises/tissue damage that cannot be seen by the naked eye. See “3-D Scans of Crime Scenes Proving Vital for Niagara County, N.Y., Police” Rachel Fuerschbach, Lockport Union-Sun & Journal, N.Y. Sept. 29, 2016.

•       Artificial Intelligence:

• The internet of things (IoT) refers to connected objects able to collect and exchange data using embedded sensors. As more and more data is being generated, AI is used to organize data for applications (systems connecting systems). Examples of IoT: Fitbit, Apple watch, other wearables, Amazon Echo, Google Users can talk to voice assistants like Alexa or Siri for help performing a variety of functions.

Geofence warrants:

• “Geofencing” has been used by advertisers for years to identify potential customers by drawing a virtual fence around a particular building, store or geographic area and then identifying all cell phones within the perimeter. But geofencing for law enforcement purposes is relatively new. Geofence warrants began to be sought by law enforcement agencies within the last five The concept is that even if you did not know who was at a particular crime scene, you might identify those individuals by identifying their cell phones.
• In 2019, the United States District Court for the Eastern District of Virginia considered the constitutionality of a geofence warrant. In our article “Don’t Fence Me In” (Atticus Magazine, NYSACDL, Spring 2020 ed., pp. 21-48 attached) we identified United States v. Chatrie, 19-cr-00130, as the most important geofence case in the country. On March 3, 2022, the Court issued a 33-page decision holding that the geofence warrant violated the Fourth Amendment because it lacked particularized probable cause to search every person within a given area but did NOT suppress the evidence obtained pursuant to the warrant:

“This case implicates the next phase in the courts' ongoing efforts to apply the tenets underlying the Fourth Amendment to previously unimaginable investigatory methods. In recent years, technology giant Google (and others) have begun collecting detailed swaths of location data from their users. Law enforcement has seized upon the opportunity presented by this informational stockpile, crafting "geofence" warrants that seek location data for every user within a particular area over a particular span of time. In the coming years, further case law will refine precisely whether and to what extent geofence warrants are permissible under the Fourth Amendment. In the instant case, although the Motion to Suppress must ultimately be denied, the Court concludes that this particular geofence warrant plainly violates the rights enshrined in that Amendment”.

United States v. Chatrie, 2022 U.S. Dist. LEXIS 38227, *2-3,    F.Supp.3d   , 2022 WL 628905; See also “Here’s how police can get your data-even if you aren’t suspected of a crime”, Sara Morrison, July 31, 2021 www.vox.com.

Case Study 2 –     Federal Drug Case

United States v. Parks, 1:19-cr-00087-LJV-JJM Here the Government alleged that the defendants, James and Lavon Parks, were operating a drug conspiracy in the Western District of New York that was being supplied by co-conspirators in Puerto Rico, Texas and other locations outside of the state. The case exemplifies the move toward data aggregation at all levels of law enforcement. It illustrates the network of government databases being amassed by police and the private databases from which information is commercially accessible to law enforcement; and further, how these systems of information sharing can blur jurisdictional lines between federal and state agencies.

Defendants, a father and son who lived in Niagara Falls, New York, were driving a rental car with Virginia plates on November 30, 2017, on the eastbound I-40 between Memphis and Nashville, Tennessee. Around 8:00 a.m. a Tennessee State Trooper observed the vehicle. He then followed alongside or immediately behind it for over nine miles looking for a traffic infraction which would allow him to pull the car over. Observing none, the officer issued a “BOLO” (be on the lookout) for the vehicle which he believed to be “suspicious” even though it was violating no law. Eventually the car was pulled over by another officer further up the road when its tires momentarily crossed the highway dashed lane line. During the vehicle stop, 3-1/2 kilos of cocaine were found in the vehicle’s trunk.

The Trooper and the arresting officer were both part of an “interdiction team”. They received specialized training on how to identify possible drug traffickers and their methods for moving drugs on the nation’s highways and through transportation centers. Referred to as Predictive/proactive policing, it means predicting who might be committing a crime using

“indicators” of criminality. According to the officers who testified in the Parks case, looking for “indicators” is not “profiling”. Unlike “profiling” with its checklist of behaviors and personal attributes of drug dealers, “indicators” can be otherwise innocent behavior that, nevertheless, to a trained professional are suspicious. According to the Tennessee Officers, “Indicators” are behaviors or methods but not personal features like race.

In terms of digital technology, predictive policing involves “crime forecasting” where, using algorithms to analyze data from various sources, analysts attempt to predict when and where crimes are likely to occur and who is likely to commit them. Tools used for this type of policing include crime-mapping, data-driven approaches to crime mitigation and real time crime centers. “Chicago is already evaluating predictive AI with the use of public data, such as social media data and other sources to identify people likely to be criminals before they commit crimes. The research is controversial because it assumes criminality can be predicted…using social media as collateral information allows financial crime investigators to detect, within seconds, things that are out of pattern. For example, if a person has geo-tagged frequent visits to expensive resorts or restaurants that are inconsistent with their salary, that may be indicative of possession of proceeds of crime” or to detect rogue behavior by markets or traders and brokers. “How artificial intelligence is changing investigations, policing and law    enforcement”,    Christine    Duhaime,    Feb.    13,    2019 https://www.antimoneylaunderinglaw.com Who might commit a crime and where that might occur according to data collected by the police is a drastic shift from the traditional method of waiting for probable cause to believe a crime has been committed and proof that the defendant committed it. Data alone has its limits for forecasting crime. For example, in April 2022, Buffalo’s Police Commissioner announced new strategies to reduce shootings in the city. One plan was to identify “hot spots”: “We’ve put the entire city into 500-by-500-foot grids. We have an overlay grid over the city and then look at them by individual districts. We are looking at shootings and shots fired and other gun crimes within those grids. We’re looking at 90-day trends and we’re looking to see where those hot spots are developing”

(See “Buffalo’s New Police Commissioner Takes Aim at Gun Violence with New Approaches”, The Buffalo News, Maki Becker, Apr. 18, 2022).

Unfortunately, several shootings that occurred later in the month were not “predicted” by the data: “Buffalo relies on crime data to direct police resources toward neighborhoods where they are most needed, Gramaglia said. Two of the three shootings are not in what we would consider our hot zones, our areas that are prone to this type of activity, he said, referring to the Waterfront and Dodge Street shootings”. (See “2 Killed, 4 Wounded in Rash of Gun Violence Sunday in Buffalo”, Stephen T. Watson, The Buffalo News, Apr. 25, 2022).

“Parallel Construction”

At the suppression hearing in the Parks case, the defendants argued that absent a traffic violation, there were only two possible reasons why their vehicle was suspicious: 1) because the police had advance information that they would be transporting drugs or 2) because they had been profiled based on their race (both Lavon and James Parks are Black). Sometimes officers will receive a tip about a vehicle from a government or private database or a confidential law enforcement source that they do not want to reveal. Using a technique referred to as “Parallel Construction” (or sometimes “wall stops” or “whisper stops”) the officer calls ahead to other officers who then could create, through a traffic stop, the reasonable suspicion to investigate the vehicle. See “Dark Side: Secret Origins of Evidence in US Criminal Cases”, Human Rights Watch, January 9, 2018; “US Directs Agents to Cover Up Program Used to Investigate Americans”, Reuters (John Shiffman & Kristina Cooke), August 5, 2013. Since the Supreme Court has held that an officer’s subjective intention in pulling a car over for a traffic infraction is irrelevant to Fourth Amendment analysis (Whren v. United States, 517 U.S. 806 (1996),) a defense attorney may never learn of the true reason for the stop:

“[T]he issuance to local law enforcement of “Be On the Lookout Orders” or BOLO’s, are one means by which agencies might prompt [traffic stops] in order to avoid disclosing the fact that information was obtained from certain sources. Examples of BOLOS appear in emails disclosed to WikiLeaks that belonged to Stratfor, a private Texas-based intelligence firm. After describing vehicles that the sender of the BOLO believes may be involved in narcotics trafficking or other unlawful activities, several of these documents explicitly instruct law enforcement to “[d]evelop your own probable case for conducting a traffic stop” signaling that officers should not disclose the original source of the information. Id.

Parallel construction relies on tips and other information from centralized databases that may be used by investigators without ever being disclosed. According to senior DEA officials, agents are trained to “recreate” an investigative trail using normal investigative techniques to use the information obtained from other sources. Reuters, Shiffman and Cooke, supra. “You’d be told only ‘Be at a certain truck stop at a certain time and look for a certain vehicle’. And so we’d alert the state police to find an excuse to stop that vehicle and then have a drug dog search it”, the agent said.” Id. If agents use these methods and then attribute the information they learn to “confidential sources” or simply don’t mention them in warrant applications what checks are available? Parallel construction is difficult to challenge in court because many times the agency receiving the tips agrees not to mention the source of the information. But what if the information that leads to the defendant being targeted is illegally obtained, or based on an uncorroborated tip, or otherwise of questionable validity? What if the officers received a tip that black drug trafficking organizations are being used to move drugs to the east coast in rental vehicles and the traffic stops are the result of racial profiling?¹⁸

¹⁸ According to various Privacy Impact Assessments by DHS, “DHS personnel may use race or ethnicity only when a compelling governmental interest is present and only in a way narrowly tailored to meet that compelling interest. Of course, race- or ethnicity-based information that is specific to particular suspects or incidents or ongoing criminal activities, schemes or enterprises may be considered as stated in the DOJ Guidance” DHS/CBP/PIA-049

BLOC, HIDTA’s and other ways law enforcement organizes the mass collection of data

  After the Tennessee State Trooper issued the BOLO, another officer further up the highway pulled over the Parks vehicle. He spoke with the occupants and ran their identification through a database, not relying on the usual local dispatch. The database he used was the “BLOC HIDTA WATCH CENTER” (Blue Lightning Operations Center- High Intensity Drug Trafficking Area).   https://wikileaks.org/gifiles/attach/10/10547_Gulf%20Coast%20HIDTA%20Concealment%20M ethod%206-30-11.pdf

Established in 1986 in South Florida by U.S. Customs to stop the flow of drugs from the Bahamas, BLOC was touted as “one of the most sophisticated non-military communications and command centers” in the country. BLOC has expanded ever since and now provides around-the-clock database checks for federal, state, and local officers conducting roadside stops anywhere in the country. BLOC is now operated by United States Immigration and Customs Enforcement (ICE) and part of a nationwide, federally-run, information-sharing network (ISN):

“Information provided by the center to criminal patrol officers is used to develop probable cause incident to arrest. The center also produces daily activity reports, officer safety and concealment bulletins that are distributed to 2,746 law enforcement officers nationwide. The center also provides controlled delivery coordination as well. . . Presently the Watch Center coverage now spans from the Louisiana/Texas state line to the Atlantic coastline. In CY 2015, the Watch Center received 7,281 requests for intelligence assistance from cross-designated officers performing narcotics and/or bulk currency interdictions. These requests resulted in 91,682 queries of general, state and local indices performed by intelligence coordination specialists assigned to the center.  The Watch Center maintained its mission-critical role in the HIDTA Domestic Highway Enforcement (DHE) program. The center has been designated as the intelligence point of contact for DHE Region[s]…Watch Center staff is responsible for collecting, collating and forwarding DHE operational data gathered during coordinated surge dates for intelligence analysis.” See obamawhitehouse.archives.gov HIDTA’s are supported by other federal “Investigative Support Networks” (ISN) by:

“[F]acilitating the effective and efficient sharing of information between and among [participating and non-participating law enforcement entities] nationwide. Its operational mission is to provide the full spectrum of intelligence products to law enforcement agencies, thereby enabling effective and efficient use of drug investigative resources” Id. “The Network Coordination Group” (NCG) is the central coordination site through which ISN intelligence, including BLOC, communicates. “Intelligence Support Teams” staffed by federally funded contract analysts provide agencies with “tactical and investigative intelligence support for active investigations, post-seizure analysis, links between drug trafficking organizations (DTO’s), intelligence products and services, drug intelligence targeting, links to previous arrests through database research, event and case/subject deconfliction, drug distribution and transportation “trends””. Pursuant to 21 U.S.C. §1706, Western New York was designated a High Intensity Drug Trafficking Area (HIDTA) in 1990. The purpose of the HIDTA Program, as defined by its authorizing statute, is to reduce drug trafficking and drug production in the United States by

facilitating cooperation among Federal, state, local, and tribal law enforcement agencies to share information and implement coordinated enforcement activities. HIDTA’s provide a mechanism to deconflict targets and events within their respective regions using Regional Information Sharing Systems (RISS) and RISS System Intelligence Databases (RISSIntel). SAFETNet is an event/target deconfliction system developed, owned, and operated by a consortium of nine HIDTAs across the country. The SAFETNet deconfliction application has been consolidated within the DEA’s El Paso (Texas) Intelligence Center (EPIC). DEA agents in Buffalo are designated as the HIDTA contact for Erie County. ATF also participates in certain HIDTA operations by providing financing, intelligence sharing or assigning an agent to work with local police departments. "I meet with the HIDTA representative once, twice a week on various topics. Everything from intelligence to Dan Rinaldo, who works for them, helped us set up our Narcan program," said [former] Buffalo Police Commissioner Daniel Derenda.” Spectrum News “Sen. Schumer Fights Funding Cut for Drug Trafficking Program” Kaitlyn Lionti, May. 18, 2015 The unit of DEA that facilitates information-sharing nationally is the Special Operations Division (SOD). Located in Virginia, more than 25 other law enforcement agencies are represented within the unit including the FBI, CIA, NSA, IRS and DHS. Originally created in 1994 to combat Latin American drug cartels, it has now grown into an office of several hundred intelligence analysts who also work on domestic investigations for its member agencies. SOD maintains the DICE database which contains over a billion cell phone and internet data records gathered through subpoenas, arrests and search warrants nationwide (see Appendix A). About 10,000 federal, state and local law enforcement officers have access to the DICE database. Id. In addition to these federal database assets, federal law enforcement agencies also rely on

private databases. The Tennessee officers in the Parks case attended a training program called “Desert Snow”. Desert Snow is the largest “private” criminal interdiction training program in the country. It was started by a retired California Highway Patrol Officer named Joe David. Desert Snow has received nearly $3 million in the last 12 years from Homeland Security. GovTribe.com. The logo for Desert Snow is a hooded knight on horseback holding a shield with a cross. Desert Snow encourages state and local patrol officers to post seizure data along with photos of themselves alongside stacks of seized currency and drugs… “winners receive Desert Snow’s top honorific ‘Royal Knight’” (not to be confused with “Loyal Knights of the KKK”). Desert Snow officials “refer to it as a Brotherhood” (“Police Intelligence Targets Cash”, Robert O’Harrow Jr., Michael Sallah, Steven Rich, www.washingtonpost.com, September 7, 2014) ; “In Roads – A Working Solution to America’s War on Drugs”, Charles Haines, 2011. Desert Snow was awarded 47 federal contracts from 2008-2021. In September 2021 DEA executed a purchase order for “target development of an auto-ingestion feature for Domestic Highway Initiative seizure data which will feed into the El Paso Intelligence Center’s National Seizure System”. In other words, the private interdiction training program will feed its (unregulated) data on drug seizures directly into the government’s own database. Desert Snow operates “Black Asphalt” a private database for law enforcement officers with tips, leads, and suspect information supplied by interdiction officers nationwide based on traffic stops and roadside investigations. It emphasizes the importance of “profiling” techniques. “Cops using controversial database to identify search and seizure targets”, S. Dent, September 9, 2014 www.engadget.com “The “Black Asphalt” network “has been tapped by as many as 25,000 police officers, DEA officials, customs agents and others to share information. Some of that data includes reports about US drivers never charged with a crime, including personal data like social

security numbers.” Id. “The Black Asphalt [Desert Snow database] was designed to support EPIC, HIDTA and other government programs,” [the founder of Desert Snow] wrote in his 2012 letter to the membership.” (“Police Intelligence Targets Cash”, Robert O’Harrow Jr., Michael Sallah, Steven Rich, September 7, 2014 www.Washingtonpost.com. (Documents and interviews obtained by the Washington Post show that reports were funneled to the DEA, ICE, CBP, and other federal agencies through Black Asphalt). In 2009, the DEA paid $6,700 to Black Asphalt for an improved user interface with the [EPIC] system. In its law enforcement-only newsletter, the National Bulk Cash Smuggling Center, a part of ICE, describes Black Asphalt as one of “its valuable law enforcement partnerships”.” Id. “In another part of Black Asphalt, users posted “be on the lookout” reports, (BOLOs) to single out certain drivers for police attention in other jurisdictions. The private BOLO reports generally rely on police intuition rather than hard evidence or probable cause.” Id. In January 2013 Desert Snow was hired by the district attorney’s office in Caddo County, Oklahoma as a roving private interdiction unit: “Working with local police, Desert Snow contract employees took in more than $1 million over six months from drivers on the state’s highways, including Interstate 40 west of Oklahoma City. Under its contract, the firm was allowed to keep 25 percent of the cash. When Caddo County District Court Judge David A. Stephens learned that Desert Snow employees were not sworn law enforcement officers in Oklahoma, he denounced the arrangement as “shocking” and he threatened to put [Desert Snow’s founder] in jail if it continued” Id. “On June 11, 2012, Assistant U.S. Attorney Deborah Gilg in Nebraska warned in a letter to state law enforcement there that such reports ‘may, in fact, violate state criminal law(s) and citizens’ civil rights and liberties’ because they contained law-enforcement sensitive information

and personal data on citizens.” Id.

Fusion Centers

Like the federal government, New York created a statewide intelligence center (NYSIC) for collecting, evaluating, analyzing, and disseminating information and intelligence data regarding criminal and terrorist activity. NYSIC is headed by an employee of the New York State Police ¹⁹. It was the law enforcement community's response to the absence of a shared information and intelligence strategy throughout New York State following the 9/11 attacks. The NYSIC, working in cooperation with the New York State Office of Homeland Security and the Division of Criminal Justice Services, is a network of intelligence specialists that supplies intelligence services to law enforcement statewide. It provides 24-hour access to State, Federal, and private databases. In addition, the NYSIC compiles and disseminates information and advance warnings to law enforcement agencies regarding possible terrorist and criminal incidents. The NYSIC has created uniform intelligence collection standards and criteria for reporting information to state fusion centers (See Appendix B for specific organizational information) Fusion centers are owned and operated by state and local law enforcement agencies, and are designated by the governor. DEA agents are key facilitators for local and state police in “fusion” or investigative support centers. A primary fusion center typically provides information sharing and analysis for an entire state. These centers are the highest priority for the allocation of available federal resources,

17 Upstate New York Regional Intelligence Center (UNYRIC) 630 Columbia Street Extension Latham, NY 12110 Center Number: (866) 486-9743 (component of the New York State Police)

including the deployment of personnel and connectivity with federal data systems. A “recognized” fusion center typically provides information-sharing and analysis for a major urban area. Any fusion center not designated as a primary or recognized fusion center is referred to as a regional fusion center. On the local level we have also seen the creation of Real-Time Crime Centers (RTCC’s). RTCC’s are hubs where police ingest and analyze surveillance, intelligence, and data from a number of sources in real-time. A number of companies offer hosting of real-time crime centers in the cloud. For example, FUSUS (RTC3) extracts and unifies live video, data and sensor feeds from virtually any source, enhancing the situational awareness and investigative capabilities of law enforcement and public safety agencies. According to company ads:

“Whether it’s a UAV, a traffic camera, a private cell phone video, a building security camera or a bomb disposal robot, FUSUS can extract the live video feed and send it to your emergency operations center and officers in the field. We create a public safety ecosystem that combines video with other utilities like ALPR’s, gunfire detectors, real time officer geolocator feeds a registry map of all the public and private cameras in your region, a multi-media tips line for the public and a digital evidence vault for investigators” www.fusus.com

Global Tel Link

Other databases have been used to develop other evidence against the Parks defendants. For example, Defendant Lavon Parks was detained pending trial and placed at the Chautauqua County Jail. Global tel link (now known as ViaPath Technologies) and Securus jail phone systems are the two main companies used to provide telephone and other security services to jails across the country.

In response to a bail motion in which he claimed the cost of calling his attorney was prohibitively expensive and effectively denied him the ability to meaningfully participate in his own defense, the Government attached a list of his phone calls. The list was intended to show that Mr. Parks made several hundred dollars-worth of phone calls to dispute his claims that he could not afford to call his lawyer. However, there were 25 separate entries indicating dates, times and lengths of phone calls he made to his lawyer’s office. When Mr. Parks challenged the jail’s practice of monitoring, recording and providing his lawyers’ calls to the prosecutor, the Government responded as follows:

AUSA:                        And, Judge, I just want to address Ms. Meyers Buth’s concern, because I did personally participate in the ordering of these jail calls. I worked with an investigator in the office, [Redacted]. The way that it works is I ask him, he contacts the jail, and the jail provides the calls.

I want to make very clear that when I asked for the calls, I did provide Ms. Meyers Buth’s office phone number and her cell phone number, and I said I absolutely do not want calls with these phone numbers. Unfortunately, what happened is that Chautauqua County produced them. They create - - they download the calls, they put them on a disk, they put the files into packets. [Redacted] has the disk, he’s not looking at the content, he delivers it to me. I put the disk in, I noticed immediately. That’s the first thing I did, was I looked and I saw that there were calls with Ms. Meyers Buth. I took the disk out of my computer, and I gave them to our litigation support unit, and I said this needs to be filtered. Here are the numbers that I want to be filtered out. I want it deleted off of our cloud, and I don’t want it in my possession. So they did that, they filtered it.

What I have in my possession and what is available to the prosecution team is a filtered copy of the jail calls, although we have a log that suggests that other calls were given to us. They were, we have them, but we’re not - - we, the prosecution team, is not listening to them.

THE COURT:             I have absolutely no doubt that you are doing everything you can, but it is troubling - -

AUSA:                        And, you know - - THE COURT:     - - that the attorney - - AUSA:                         - - it is a problem at every jail, Judge. It’s something actually that I’ve been trying personally to work on for about a year. I’ve told my management that every time we get jail calls, no matter the effort we put in, we do not want defense counsel calls. What is produced to us and then is ultimately in our possession is a collection of calls that includes them. And the problem is it’s not like we can just select them and delete them. We have to - - once we have them, we have to maintain them. But also, we don’t want them. So - -

THE COURT:             I get it.

AUSA:                         - - it’s a system that needs to get fixed.

In response, Mr. Parks moved for an order requiring all of his recorded calls to be turned over to him.

“In the Defense motion filed March 9, 2022, we asked the Court to consider the fact that the phone carrier was recording calls in bulk, without relation to jail security, and including confidential attorney calls as being relevant to the overall context of whether Mr. Parks can effectively communicate with counsel. In the motion we asked the Government to provide:

“A copy of any written protocol used by the United States Attorney’s Office for ensuring that attorney-client conversations are being excluded from monitoring and/or recording; and copies of any of Lavon Parks’ recorded conversation that have been provided to the Government to date by Global Tel Link.” [dkt 529 p.5]

Having not received any of the recorded calls, the Defense followed up its March 9^th motion request with a letter to the Government on Monday, March 21, 2022, specifically asking for inter alia the name of a contact person at Global Tel Link. In that way, counsel could speak to the phone carrier about exempting calls with our law office number from monitoring/recording; fin out what the procedure is for doing that; whether the carrier monitors and/or records attorney calls at other jails or just Chautauqua; how long the recordings are kept; how to request they be deleted from their system; what proof of deletion is provided; what date range and the format of the recordings provided to the United States Attorney’s Office; and

whether the recordings were given to any other person or agency in addition to the United States Attorney’s Office.”

Case 1:19-cr-00087-LJV-JJM Document 539 Filed 3/24/22

In the contract between Global Tel Link and the Chautauqua County Jail there is no mention of taking steps to exclude attorney-client phone calls from being monitored or recorded [See attached contract]. Global Tel Link software also provides GPS location data if callers use cell phones so that attorneys who call their clients from a cell phone may have their location, as well as the content of their call, monitored. The Second Circuit Court of Appeals has held that a defendant does not have a reasonable expectation of privacy in jail calls as long as he is warned they may be monitored. United States

1. Mejia, 655 F.3d 126 (2d Cir. 2011) (defendant’s calls to his sister to tell his brother to tell his lawyer that he wanted to “cop out” to a plea was not protected by attorney-client privilege); see also United States v. Feaster, 2017 U.S.Dist.LEXIS 207651 (WDNY, J. Payson Nov. 6, 2017; report and recommendation adopted by United States v. Feaster, 2017 U.S. Dist. LEXIS 206686, 2017 WL 6409153 (Dec. 15, 2017, J.Larimer) (government does not have to get a subpoena or warrant to obtain defendant’s outgoing jail calls; “[he] received clear notice ... that his telephone calls could or would be monitored or recorded, and his decision to initiate telephone calls despite that notice establishe[d] his implied consent to the recording and monitoring of his telephone calls” quoting United States v. Simmons, United States v. Simmons, 2016 U.S. Dist. LEXIS 8086, 2016 WL 285176, *24-25 (W.D.N.Y.), report and recommendation adopted by, 2016 U.S. Dist. LEXIS 37493, 2016 WL 1127802 (W.D.N.Y. 2016)); People v. Diaz, 2019 NY Slip Op 01260 (New York Court of Appeals ruled defendant does not retain a reasonable expectation of privacy in jail calls

or in preventing their warrantless release to the district attorney’s office) (cited in Steinhilber v. Kirkpatrick, 2020 U.S. Dist. LEXIS 252733). Unlike those cases which dealt with calls by a detainee to someone other than his lawyer, People v. Criscuolo, 157 N.Y.S.3d 454, 455, 2021 N.Y.App.Div.LEXIS 6843, *1, addressed the inadvertent recording of an attorney-client jail call which was then turned over to the district attorney’s office. In that case the Appellate Division First Department held that the prosecutors took appropriate steps in an instance of their unintentional receipt of privileged attorney calls and defendant was not entitled to vacatur of his conviction. Courts have not yet dealt with the intentional, systematic collection and use of recorded jail calls between attorneys and their clients by a jail’s third party security contractor. Both Global Tel Link and Securus have been sued by attorneys who have alleged it indiscriminately monitors, records and provides attorney-client calls to prosecutors. [https//:www.themainemonitor.org/class-action-lawsuit-alleges-wiretapping-at- maine-jails/] ²⁰ Chautauqua County Jail uses GTL Offender Connect which allows video visits from home or the jail lobby, phone calls and voicemail, email and photo sharing. GTL charges $.25 per minute for all calls within New York. It charges a fee for adding money to an account online and allows individuals to leave a short voicemail message for an inmate for a flat fee of $1.25 (www.jailexchange.com) See also “American Securities Puts Prison-Phone Operator GTL on Block”, The Wall Street Journal, Ryan Dezember and Gillian Tan, Apr. 17, 2014 (federal regulators capped fees companies could charge which led to the private equity firm to list it for sale after having purchased it in 2011 for over $1 billion; its products can identify counterfeit

²⁰ Compare the spying on journalists dating back to 2016 by the NSO which licensed Pegasus spyware. The “company says [it] is intended only for use in surveilling terrorists and major criminals” (https://www.washingtonpost.com/investigations/interactive/2021/nso-spyware-pegasus-cellphones/

currency brought in by inmates during the booking process, among other things); Cf www.casefileconnect.com (company founded by lawyers that provides tablets to inmates on a secure channel that allows client to access discovery, video-chat etc. The company advertises in The Champion Magazine and advertises their product as having strong encryption and meeting security rules for incarcerated facilities across the country). Once coming under criticism for charging exorbitant rates and exercising a monopoly over prison telecommunications, both companies now offer free calls and free tablets. There’s an old saying: “When the product is free, you are the product”. Why the free tablets? Because Global Tel Link does not just provide telephone monitoring services to jails. It has expanded its offerings to other data analysis functions. Patents filed by either Global Tel Link or Securus in the last five years include:

• systems to monitor online purchases made by incarcerated people and their families;
• mobile correctional facility robots;
• prison gaming
• prison Augmented Reality (AR) and Virtual Reality (VR) services [AR uses a real-world setting while VR is completely virtual]
• voice recognition and surveillance

In addition, Global Tel Link operates an intelligence application on its systems called “Called Party IQ”: “Using GTL’s real time call validation system, Called Party IQ determines when two or more inmate calls are made simultaneously to the same destination number, either from a single facility or across multiple facilities serviced by GTL. Unlike some other applications which can monitor only fractions of the inmate population, Called Party IQ can monitor over 2,200 facilities and over 1.1 million inmates nationwide, providing customers with the most robust iteration of this technology in the industry. Called Party IQ can flag the call, play a warning message, disconnect the call, or block calls made simultaneously to one phone number, based

on the desire of investigators at any given facility. Alerts, including email, text, and onscreen visual indicators may be configured to notify facility personnel when Called Party IQ activity is detected. Through the user-friendly graphical user interface of the GTL inmate telephone platform, an investigator is able to search for merged calls, resulting in increased efficiency when reviewing calls and therefore more usable, actionable intelligence.” (https//:www.prweb.com April 9, 2022)

It is no longer the jail intelligence officer listening in on calls. GTL is a non-government contractor which, according to its website, offers “fusion services” and virtual “boots on the ground” to help jails keep up with information analysis. See GTL’s marketing videos at https://youtu.be/6vrbSPCC-F4 ; https://youtu.be/_22FMqP8lQs . The Parks case shows the vast array of virtual “nets” that stretch across our country’s highways, jails and even law offices to help the police accumulate information about people absent any probable cause to believe they are committing crimes. The existence of such boundless informational resources in the hands of police raises privacy concerns for all of us.

CONCLUSION

“How they police us and spy on us, tell us that makes us safer?

We’ve never been in more danger”-Fox Mulder, The X-files, Season 10 (2016) (Founder’s Mutation)     Criminal defense lawyers now have to “watch the watchers”. Unless we understand how these cyber tools are used in criminal investigations, we won’t know what to watch for and, consequently, what questions to ask in defense of our clients. Digital technology and information sharing systems have changed law enforcement strategies from catching people who have

committed crimes to now predicting who may commit them. Without a law being broken, information is employed to intercept “would-be” criminals. This represents a paradigm shift in how investigations are conducted. Systemic biases may lead to over-policing of minorities. The privacy concerns implicated are already beyond what the Supreme Court dealt with in Jones²¹ and Carpenter²². “One scholar has suggested that data aggregation and analysis could turn our police agencies into something like the “hive mind” that collects and processes data from millions of data sources, cameras and drones, allowing law enforcement agencies in the future to rely on global real-time updated databases as the primary method of policing. (Duhaime supra p.21) Privacy advocates often point out that in the 1970’s, thirty years before the 9/11 attacks and the radical expansion of digital capabilities by law enforcement, Senator Frank Church (D.Idaho) conducted an investigation into the power and practices of the FBI, CIA and National Security Agency. Even then, Senator Church warned:

“[Their] capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor

21 United States v. Jones, 615 F. 3d 544 (The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment).

²² United States v. Carpenter, 585 U.S,  (2018) (“In April 2011, police arrested four men in connection with a series of armed robberies. One of the men confessed to the crimes and gave the FBI his cell phone number and the numbers of the other participants. The FBI used this information to apply for three orders from magistrate judges to obtain "transactional records" for each of the phone numbers, which the judges granted under the Stored Communications Act, 18 U.S.C. 2703(d). That Act provides that the government may require the disclosure of certain telecommunications records when "specific and articulable facts show[] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." The transactional records obtained by the government include the date and time of calls, and the approximate location where calls began and ended based on their connections to cell towers—"cell site" location information (CSLI).” The Court held the government's warrantless acquisition of 127 days of Carpenter's cell-site records violated the Fourth Amendment.

everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide”.

In other words, mass surveillance capabilities are making these law enforcement agencies omnipresent in our lives. “The collection of information about each of us to a degree that threatens our privacy shifts the power away from the people and into the hands of a nameless, faceless government establishment”. (See “The Agency That Could Be Big Brother”, James Bamford, The New York Times, Dec. 25, 2005).

We are already in the midst of a digital dragnet that is capable of ensnaring innocent Americans. As criminal defense attorneys it is our sworn duty to uphold the Constitution and advocate for transparency about digital technology and data aggregation methods that threaten to minimize constitutional protections.

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