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New Public Safety Broadband Network: Tool For A Domestic Secret Police?

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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September 17, 2012

Police in Tampa used smartphones and tablets to spy on protesters at the Republican National Convention, according to a report today from the National Journal.

Smartphones have proven to be an excellent tool for empowering individuals faced with sometimes unprofessional or abusive law enforcement officers, thanks to their built-in cameras and the constitutional right to record the police. But they also allow the police, according to the article, to blend in and transmit live video of protesters:

“The specialized applications gave law enforcement an advantage, allowing police officers to use everyday devices in a strategic and tactical way,” said Sgt. Dale Moushon, with the Intelligence Unit of the St. Petersburg Police Department….

While undercover police in most protests are often easily identified by their earpieces or microphones in their sleeves, Moushon told National Journal that using cell phones allowed police to remain completely undetected. “Everyone has a phone, so officers blend in easier,” he said….

He also pointed to an instance in which an officer was preparing to take a picture of a suspicious person so staff could use facial-recognition software to identify the person. Instead, the person happened to pull out a document that included his identifying information that was then captured in real-time by the officer’s live video feed. “That saved us a lot of time,” Moushon said.

The surveillance in Tampa was part of a test of an “interoperable network that used technology from several private companies,” operating with the special permission of the FCC. And it is part of an effort to eventually build a nationwide “National Public Safety Broadband Network” that would be a permanent infrastructure for such efforts.

While that would be used for public safety in general—including such beneficial uses as allowing firefighters to quickly download a building’s schematics—the primary uses in this test, at least, seemed to involve surveillance. If this network is going to be built, it ups the ante on police surveillance—making it more vital than ever that we enforce strict rules governing how surveillance is carried out.

We shouldn’t just accept that undercover police will infiltrate peaceful protesters exercising their First Amendment rights, photograph them, and use face recognition or other techniques to identity them. We must not come to accept the existence of a secret police in our society.

My colleague Mike German, who infiltrated numerous criminal groups as an undercover FBI operative, notes that there should be reasonable suspicion—an articulable basis in fact—that a crime has or will be committed before the police begin an investigation, especially one as intrusive as an undercover operation. And, he says, there are very real practical dangers with putting undercover officers in a protest group in particular. “There have been a number of cases where things get ugly because the officers get identified easily, and when they do the chances of violence actually increase significantly,” he told me. “The police shouldn’t be doing things that increase the risk of violence.”

Mike notes that the Justice Department’s Global Justice Information Sharing Initiative has actually put out some pretty good recommendations in this area. The report, Law Enforcement Guidelines for First Amendment-Protected Events, states that “any videotaping or photography”

Should be conducted only in a manner that minimizes interference with the exercise of First Amendment rights by persons lawfully participating in the event…

Should be conducted only in a manner that protects a person’s anonymity and free association….

Should authorize the recording of persons only when the officer using the equipment has reasonable suspicion that the person is involved in criminal activity.

It is possible that all the officers infiltrating protests at the RNC were abiding by these guidelines—but there is reason to be skeptical given the practices that we’re seeing at large events around the country. In this report from the Democratic convention in Charlotte, Kevin Gosztola of describes how he and another journalist, Steve Horn from WORT-FM in Wisconsin, spotted several protesters who appeared to be undercover officers. The journalists

took notice of four burly middle-aged white males during a public march. The four were taking photos of the undocumented immigrant contingent in the march. They were carrying “No Papers, No Fear” blue flags and had put stickers from Code Pink on their person to make it seem like they were protesters in the demonstration. One man in an orange shirt had a black piece in one of his ears.

When the journalists followed one of the men as he left the demonstration,

the man in the orange shirt claimed he was a protester and did not like having his picture taken. He threatened to punch Gosztola “in the teeth.” He belligerently commanded the two journalists to cross the street. The agent in the orange shirt then grabbed Horn and pulled him to the corner….

The man then called in uniformed police officers who stopped and searched the journalists, and demanded identification which they reported to the authorities.

Today’s National Journal story is a reminder that most high-tech tools are double-edged, their impact on freedom up in the air and subject to contestation. Journalists and protesters are attempting to use technology such as smartphones (and their always-ready cameras) to protect their rights, while the police are not only trying to curb such uses of photography (as we have noted in all our work on photographers’ rights) but, according to today’s story, are also seeking to use the very same technology to carry out surveillance on those protesters.

This battle over technology is at root a power struggle. Will technology increase the power of the individual, or of the authorities? It is not a battle that should be contested on the streets, but worked out democratically and applied through the rule of law.

Update (Sept. 17)

This post was corrected to reflect that the incident reported by Gosztola and Horn took place in Charlotte, not Tampa.

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