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Computers, Privacy & the Constitution
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Police and Parallel Construction-- By AhliaBethea - 19 May 2021 “Society wins not only when the guilty are convicted, but when criminal trials are fair.” -Brady v. Maryland, 373 U.S. 83 (1963). When news of police officers using excessive force against unarmed black and brown men surfaces there are often simultaneous stories of protests erupting around the country. Law enforcement officials employ a variety of different means to "control" such situations and maintain a sense of "law and order." However, it is unacceptable for these means to erode the rule of law. Facial recognition software, cell-site simulators, and other technologies are some examples of methods employed by law enforcement to disrupt protests, and address criminal behavior more broadly. It is a sad reality that while exercising their rights under the First Amendment, citizens may have their Fourth Amendment rights violated. These threats are even more serious for those with previous convictions or who are undocumented (https://www.wired.com/story/how-to-protest-safely-surveillance-digital-privacy/). While reports of surveillance technology being deployed against protestors is alarming, the use of such software is far more pervasive. Law enforcement officials, from city cops to the Department of Justice are utilizing technology to maintain order while simultaneously infringing on the First and Fourth Amendment rights of American citizens. This essay seeks to explore that tension.The Surveillance StateParallel ConstructionParallel construction is a method of evidence collection where a law enforcement agency will illegally obtain "tips" pertaining to information or direct information to apprehend a subject, and will later construct a legal story of how they were able to achieve such a result. (https://www.washingtonpost.com/news/the-switch/wp/2013/08/05/the-nsa-is-giving-your-phone-records-to-the-dea-and-the-dea-is-covering-it-up/). One example of technology used in this processed is stingray technology. Stingray creates cell-site simulators which pretend to be cell towers that can connect to an individual’s phone signal if in close enough proximity. (https://www.cbsnews.com/news/d-c-court-rules-warrant-is-required-for-stingray-cell-phone-tracking/). In turn, this allows agencies such as the FBI, ICE, and local police officers to track and identify a person’s location. Id. In a case involving parallel construction, Todrae McKenzie? of Florida was offered a plea deal when his defense attorney raised concerns about how evidence in his case was obtained. The police opted to provide the young man with a plea deal instead of sentencing him to prison so they could keep the use of their parallel construction tactics hidden. ( https://www.wired.com/story/stingray-secret-surveillance-programs/). Police departments have spoken on the use of this technology and alleged that these techniques are critical parts of their counter-narcotics tasks forces’ operations. (https://www.wired.com/story/stingray-secret-surveillance-programs/). The use of intel from the National Security Agency ("NSA") is distributed to local law enforcement agencies, as well as the Federal Bureau of Investigation ("FBI") and Drug Enforcement Administration ("DEA"). Regardless of what types of crimes the technology is being used to investigate, their use could be problematic. If intel obtained through NSA or with the use of cell site simulators does not go through the process of obtaining a warrant, it could be illegal. While all cell-site simulator activity is not seen to be in violation of the Fourth Amendment, some defendants have prevailed with such arguments. In Jones v. United States the court held that the deployment of a cell-site stimulator without first obtaining a warrant based on probable cause was a violation of Mr. Jones' Fourth Amendment rights. No. 15-CF-322 (Sept. 21, 2017). Such cases stand in contrast to "inevitable discovery" situations. The inevitable discovery-doctrine states that if an unlawful process was not used, a lawful one would have produced the same evidentiary result. See Pinkney v. United States, 851 A.2d 479, 475 (D.C. 2004).;_Gore v. United States_, 145 A.3d 540, 548 (D.C. 2016).How Do We Fix This?Unconstitutional practices should not become part of the normal operating practices of our national law enforcement agencies. Rogue agents can abuse this gap in "oversight." The lack of accountability can cause officers to conduct investigations rooted in racial biases or other prejudices. Additionally, the violations could interfere with a defendant's right to access any evidence against them possessed by the government, and one's entitlement to a remedy for government abuses. (https://www.hrw.org/report/2018/01/09/dark-side/secret-origins-evidence-us-criminal-cases#). Furthermore, information obtained through illegal searches should not be admissible in court. The benefits of technology, such as efficiency in law enforcement operations, should not require U.S. citizens to sacrifice their constitutional rights. One potential resolution is to increase oversight by the Department of Justice over agencies such as the FBI and DEA. Processes, particularly those pertaining to evidence and investigation should comport with the constitutional right to a fair trial. Parallel construction "really gives a lot of power to the executive branch. It cuts judges out of the role of deciding whether something was legally obtained." (https://www.wired.com/story/stingray-secret-surveillance-programs/). Another potential remedy is for NSA and local departments to publicly disclose the numerical data pertaining to the data acquired. Some average citizens are not sensitive to the fact that they are constantly being surveilled, however, shocking data illustrating the billions of records the agency acquires each day might inspire them. A 2013 Washington Post article stated that NSA was gathering nearly 5 billion records pertaining to cellphone locations a day. (https://www.washingtonpost.com/world/national-security/nsa-tracking-cellphone-locations-worldwide-snowden-documents-show/2013/12/04/5492873a-5cf2-11e3-bc56-c6ca94801fac_story.html). Even someone who doesn't care about surveillance and claims they "don't have anything to hide" might be surprised at the quantity of data being acquired. Codifying the need for such reports is something that Congress can integrate into a larger data security and privacy scheme. Alternatively, agencies could issue guidance on the matter which would require notice and comment, involving a public hearing. The next step after requiring disclosure of what is being collected is more transparency about how such data is being used. There are Freedom of Information Act and national security concerns at issue here, however, there must be a middle ground that can be reached as it relates to transparency and accountability on this issue. Precisely what that middle ground could be is outside the scope of this discussion. While parallel construction is a tool that may make increase police officer efficiency, it can prevent U.S. citizens from obtaining a fair trial, and enjoying their Fourth Amendment protections. Illegal tactics by law enforcement must be curtailed so the United States does not continue to prosecute individuals based on secret information.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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