The ACLU has been working in states across the country on a variety of laws pertaining to law enforcement agencies and their power to gather and access information about us—including location tracking, drones, automatic license plate readers, and access to our electronic communications content. From my vantage point in the ACLU national office working with our state affiliates to advance legislation, I have a unique view of legislative battles taking place across the nation. And what I have seen is that regardless of the issue or the state, there has been one common theme in law enforcement opposition to the bills: they don’t want you to know what they’re doing.
With a few exceptions, the ideal bills on these topics follow a similar format:
- They contain legal protections, and require court oversight, when law enforcement wishes to use the technology in question in a criminal investigation.
- They contain notice requirements so that you are informed if police search your digital property, just as you would be informed if they search your physical property.
- They contain reporting requirements so that the public and the legislature can know how much a tactic is being used and how the new rules work in practice and can determine whether further tweaks to the law are needed.
We have seen in state after state that, thanks to law enforcement pressure, the first two issues that get traded away during legislative negotiations—or never included in draft bills in the first place—are the notice requirements and the reporting requirements. Let me underscore that point: law enforcement agencies seem to resist notice and reporting requirements more stringently than they fight court oversight and legal standards.
In Colorado, for example, we were informed that notice and reporting requirements were a non-starter for law enforcement and would be excluded from the location tracking legislation that recently passed the state Senate. In Maine, law enforcement lobbyists convinced lawmakers working on location tracking legislation to allow police to request a court order waiving the notice requirement in the law all together. Of the six location tracking bills that became law so far in the last two years, only two contain reporting requirements. Only four of the twelve new drones laws require reporting, and none (!) of the new laws governing law enforcement access to electronic communications content contains any reporting requirements whatsoever.
Let’s be clear about the stakes. Reporting and notice are, by and large, not hard. But, without them, it is very difficult to know how often law enforcement agencies are using a particular tactic—and how often they’re obtaining the personal information of innocent people against whom charges are never brought. Absent notice and reporting, it’s also hard to know whether law enforcement is complying with the legal requirements and court oversight enshrined in these new laws. And perhaps that’s the point.
The reality is that many law enforcement agencies already require internal reporting on their practices. It is hard to believe that it’s much more of a burden to compile those reports for legislators, courts, and/or the public.
With regard to notice, law enforcement agencies argue that it would be difficult or prohibitively expensive to identify everyone whose information is obtained. That’s just not true. For example, where law enforcement uses cell phone location tracking, even in “tower dumps” (where they obtain the location information of every phone that connects to a particular cell tower), they could easily text or call the numbers they identify. Where they obtain electronic communications content (or social media check-ins), there is likely an e-mail address, social networking account handle, or IP address associated with the content that could be used to identify and notify the individual(s) whose information is obtained.
And, the argument that notice might jeopardize criminal investigations is also empty. There are time-honored methods of delaying notice enshrined in current search and seizure law. Law enforcement can request a court order delaying notice of a search for various reasons (to avoid immediate danger to innocent people, a suspect’s flight from prosecution, a suspect’s destruction of evidence, witness intimidation, jeopardy to an investigation, or undue delays to a trial). There is no good reason to believe that the delayed notice that works in the offline world can’t work in the digital world as well.
So, let’s make the debate about the issue that’s really at stake: will there be transparency and oversight of police surveillance practices and informed public and legislative debate about those practices? Come on, law enforcement, if you’re doing nothing wrong, what do you have to hide?