Balancing Public Safety and Privacy Rights in the Digital Age

1. Balancing Public Safety and Privacy Rights in the Digital Age Benjamin Feist, Legislative Director ACLU of Minnesota Because Freedom Can’t Protect Itself

2. About the ACLU-MN • Nonpartisan, nonprofit organization dedicated to protecting the civil liberties of all Minnesotans under the United States and Minnesota constitutions. • Promote our mission through litigation, public education and lobbying efforts • Affiliate of the national ACLU organization, which has over 500,000 members

3. About the ACLU-MN • Not opposed to the use of new technologies in policing, but safety should not come at the expense of civil liberties • Ally and resource on privacy issues • Example: Recent cell phone tracking bill in MN

4. New Technologies • Automatic License Plate Readers (ALPR) • Drone Surveillance • Police Body Cameras • Cellular Exploitation Devices

5. New Technologies • Powerful new tools allow law enforcement agents to monitor and record individuals’ movements in unprecedented way • Technology is becoming cheaper • Digital data is easier to store, access, and manipulate

6. Privacy Issues Overview • Most new technologies used at state and local level • Courts and legislatures have not been able to keep up with rapidly advancing technology • Data retention and classification issues • Public awareness and concern

7. Privacy Issues Overview • Feb. 2014: Minneapolis Star Tribune poll found that 63% of those surveyed were “somewhat” or “very concerned” about the amount of personal information that the State of Minnesota and law enforcement collect on individuals • http://www.startribune.com/politics/246050161.html.

8. Mosaic Theory of the 4th Amendment • Cumulative approach to the evaluation of data collection • Long-term surveillance on individuals provides a much richer picture than the discrete data points • More protective of privacy because obtaining and analyzing the full “mosaic” may constitute a Fourth Amendment search even if none of the individual “tiles” trigger constitutional scrutiny

9. Automatic License Plate Readers (ALPR)

10. Automatic License Plate Readers (ALPR) • Cameras mounted on patrol cars or stationary objects (telephone poles, underside of brides, etc…) • Take a photo of every license plate that passes by, digitizes them and checks plates against databases • Provides an alert to a patrol officer whenever a match or “hit” appears.

11. Automatic License Plate Readers (ALPR) • Can help police to recover stolen cars and arrest people with outstanding warrants • Also, routinely stores location information on a vast number of innocent people • Core principle that the government does not invade privacy and collect info on innocent activities just in case citizens do something wrong in the future

12. ALPR Controversy in Minnesota • August 2012 media reports on ALPR data retention and classification • Then-Minneapolis Mayor R.T. Rybak’s car was recorded 41 times in the preceding year • Plate data was “public” under MN’s public records law • Now under “temporary classification” until August 2015

13. ALPR Legislation • Continuing divide between privacy advocates and law enforcement over retention period for “non-hit” data • ACLU-MN position: limited retention, judicial oversight • Other potential issues: • Sharing and selling of data • Classification of data (privacy vs. transparency) • Use as evidence

14. Drone Surveillance

15. Drone Surveillance • Unmanned aerial systems (UAS), a/k/a unmanned aerial vehicles (UAVs), a/k/a “drones” • Used for scientific research and agriculture to military and law enforcement operations • Regulated by the FAA, but mounting pressure to expand use

16. Drone Surveillance • Who uses (or plans to use) drones? • Federal government • Some law enforcement • Aerial photography • Hobbyists • Commercial delivery (proposed) • University research • Other governmental entities

17. Drone Use by Law Enforcement • Unlike helicopters or other police vehicles because not subject to practical limitations of manned vehicles: • Helicopters are costly and require trained pilots, launch pad, and flight and ground crews • Rather, drones are cheap, small and quiet • Able to track precise movements • View evidence inside private areas

18. Drone Use by Law Enforcement • At least 14 states have already passed laws regulating domestic drone use • ACLU-MN position: • Warrant requirement for surveillance in private areas, with emergency exceptions • Data on bystanders should be deleted promptly • Government body approval before acquisition • Annual reporting on use

19. Police Body Cameras • Replacing dashboard cameras in many departments • Technology is getting cheaper • Can increase officer accountability and reduce “he said, she said” arguments

20. Police Body Cameras • Need policies on when the cameras are turned on and off • Privacy concerns: • Individual victims recorded • Potential to invade privacy in homes • Recordings may become public

21. Resources • ACLU National Reports: • You Are Being Tracked: How License Plate Readers Are Being Used to Record Americans’ Movements (July 2013), https://www.aclu.org/files/assets/071613-aclu-alprreport-opt-v05.pdf • Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft (December 2011), http://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf

22. Because Freedom Can’t Protect Itself www.aclu-mn.org