Keep Police Use of Big Data to ‘Acceptable Boundaries,’ says Study

Policymakers have still not moved to protect Americans’ constitutional rights to freedom of speech and association from the misuse of “Big Data,” according to an expert on information and privacy law. 

Despite evidence that state and federal law enforcement agencies have contracted with data analytics firms to mine information from social media users, policymakers have still not moved to protect Americans’ constitutional rights to freedom of speech and association from the misuse of “Big Data,” according to an expert on information and privacy law. 

The revelations underline the need for new approaches to transparency in order to ensure that police use of Big Data remains within “acceptable boundaries,” Teresa Scassa, Canada Research Chair in Information Law and Policy at the University of Ottawa, wrote in a paper posted in ScriptedThe disclosures from the American Civil Liberties Union (ACLU) and the Brennan Center for Justice in 2016 did not say what kind of information police are collecting, or how they use it. 

According to Scassa, the questions that need answering before tackling police use of data mining services include:

  • Is metadata culled from private social media companies like Twitter and Facebook still public once it is sold to an analytics company like Geofeedia?
  • When the algorithms and software used by private companies to process the data constitute trade secrets, is the end product they sell to clients truly “publicly available” or “publicly accessible?”
  • Even when individual pieces of information are public, does the full picture afforded by large data sets trespass on privacy?

Private Industry Self-Policing

Scassa went on to note that while we’re still chasing down the shifting boundaries of public and private information, we lack a system of governance in place to hold industry and law enforcement accountable for what kind of data they purchase, and how they use it.

When the ACLU raised an alarm over law enforcement contracts with the data analytics company Geofeedia, which offered geographic data on private citizens culled from social media accounts like Twitter and Facebook, the backlash was immediate. Social media companies scrambled to revise their policies, wanting to distance themselves as much as possible from police surveillance activities.

Facebook, Instagram, and Twitter all terminated Geofeedia’s access to public user data, and a week later, Geofeedia announced it had laid off half of its workforce.

Other third party data mining companies that were hauled into the spotlight, including Snaptrands and Dataminr, also pivoted in terms of how they marketed their services.

While “Snaptrends’ website has not referenced any relationships with law enforcement or national security,” since March of 2017, writes Scassa, the company still identifies “public safety organizations” as a sector that can benefit from its data.

Facebook’s Platform Policy for developers now stipulates that developers should not “use data obtained from us to provide tools that are used for surveillance.” But compliance is voluntary, lacking any legislative teeth or transparency mechanisms.. While Facebook can audit 3rd party usage of its data, the public cannot.


“The public nature of social media data undermines traditional oversight and transparency paradigms, particularly those based on privacy norms,” writes Scassa. “This is in large part because social media data is considered to be public.”

The use of this data is relatively low-cost compared to other types of surveillance activities, and for the time being, sidesteps the burdensome warrant process. Until analytics companies came on the scene, law enforcement could perform manual searches of social media without a warrant, but other kinds of searches might require a paper trail, allowing some accountability in the courts.

Analytics applied to large volumes of data “can be quite sophisticated and can include mapping, predictive policing, profiling, the use of facial recognition software, and so on,” writes Scassa. And what sets it apart from other types of information garnered by law enforcement is its potential use for predictive policing, as opposed to being focused on a specific event– raising “issues of targeting and profiling.”

“Public disclosures of police service contracts do not reveal” how public data is processed or used; and emails obtained by the UCLA to and from 63 police departments across the country in the Geofeedia case only show how the company marketed its services. In emails, Geofeedia cited protests following the deaths of Freddie Grey and Michael Brown “as examples of its usefulness to police services,” a fact that Scassa says “aggravated a climate of mistrust, racial division, and a sense that the authorities were using surveillance and profiling to target minority communities.”

In addition to privacy concerns, “big data analytics used in surveillance may involve constitutional values such as the freedoms of speech and association, as well as anti-discrimination values…. for example, a search algorithm that includes the hashtag “BlackLivesMatter” identifies individuals on the basis of both political speech and association with a group or movement.”

The full article, Law Enforcement in the Age of Big Data and Surveillance Intermediaries: Transparency Challenges, is available for free download here. This summary was prepared by Deputy Editor Victoria Mckenzie. She welcomes readers’ comments.


As Deadline Looms, Congress Eyes Patriot Act Fixes

By Dec. 31, Congress must decide whether to overhaul a controversial surveillance program that collects Americans’ emails, phone calls and texts without a warrant. “This law is supposed to be a tool to fight terrorist threats overseas,” says Sen. Ron Wyden, D-Ore. “Instead it’s being used as an end-run around the Constitution.”

Congress must decide by year’s end whether to overhaul a controversial surveillance program that collects the content of Americans’ emails, phone calls, text messages and other electronic communication without a warrant, says USA Today. “This law is supposed to be a tool to fight terrorist threats overseas; instead it’s being used as an end-run around the Constitution,” said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee. Wyden has promised to put a hold on any bill that allows the government to continue spying on Americans without a search warrant. The program, known as Section 702 of the Foreign Intelligence Surveillance Act, was approved by Congress in 2008 to increase the government’s ability to track and foil foreign terrorists in the wake of the 9/11 terrorist attacks.

It was designed to spy on foreign citizens living outside the U.S. and specifically bars the targeting of American citizens or anyone residing in the U.S. But critics say the program also sweeps up the electronic data of innocent Americans who may be communicating with foreign nationals, even when those foreigners aren’t suspected of terrorist activity. The government calls this “incidental surveillance,” and intelligence officials have so far refused to tell Congress how many unknowing Americans have had their personal data collected. The law is set to expire at the end of December, leaving it to Congress to either renew the program as it is or make changes to strengthen privacy and constitutional protections. The House Judiciary Committee is working to come up with a bipartisan reform bill that would allow legitimate surveillance of foreigners overseas to continue while better protecting Americans’ civil liberties.


Are NM and NE the Trendsetters on Asset Forfeiture?

Attorney General Jeff Sessions has sanctioned the use of civil asset forfeiture by law enforcement, despite bipartisan political opposition to the controversial practice. New Mexico and Nebraska have taken the lead by banning it. Will others follow?

Law enforcement agencies that oppose attempts to reform civil asset forfeiture have a new ally in Attorney General Jeff Sessions, who last week announced moves to buttress their ability to seize people’s assets, despite bipartisan opposition to the practice. Slate says the Sessions initiative runs counter to a trend that seems to be taking hold. It began in 2015 in New Mexico, which became the first state to ban civil forfeiture. Law enforcement was previously entitled to 100 percent of forfeiture profits under state law.

That changed when a coalition of civil rights and advocacy organizations, including the ACLU of New Mexico, teamed up with Brad Cates, who oversaw federal asset forfeiture under President Reagan, to convince legislators that the practice was an abuse of power. Their argument was bolstered by a leaked recording of a prosecutor encouraging police to seize expensive cars and homes. Nebraska passed a similar law abolishing civil forfeiture last year, after the state’s ACLU chapter released a damning report on the practice in 2015. The ACLU leveraged public outrage over the report in conversations with legislators, says Spike Eickholt, an ACLU lobbyist. Law enforcers put forth a tone-deaf opposition that focused on the law’s effect on agencies’ bottom lines.


TN Judge Quickly Rescinds Jail Birth Control Program

Sixty men and women volunteered when Judge Sam Benningfield offered 30 days off the sentence of White County jail inmates willing to undergo a vasectomy or birth control implant. The offer was rescinded when the world caught wind.

A Tennessee judge has pulled the plug on his controversial plan that encouraged female and male inmates with drug addiction problems to cut the length of their jail sentences through voluntarily undergoing birth control procedures, reports the Times Free Press of Chattanooga. Amid a growing legal uproar, White County Judge Sam Benningfield filed an order Wednesday reversing his May 15 order. He had hoped the program would help combat the number of babies born with drug addictions. “I wasn’t on a crusade,” Benningfield said. “I don’t have a ‘mission.’ I thought I could help a few folks, get them thinking and primarily help children.”

The plan had come under fire from some state lawmakers and the ACLU, whose Tennessee director said, “The Constitution protects people’s right to choose whether and when to procreate.” Benningfield’s plan offered 30 days off jail sentences for men who agreed to free vasectomies and women who agreed to receive free Nexplanon implants, which are intended to prevent pregnancies for up to four years. Thirty-two women and 38 men had signed up. Benningfield said the birth control idea for inmates came from the Tennessee Department of Health, which withdrew its support after it attracted national attention.



Supreme Court Ruling Dismantles Panhandling Laws

The 2015 decision concerned church-related signage, but its free speech underpinnings have made it the case-law basis for successful court challenges of local panhandling laws across the country. “It’s an unanticipated consequence,” said an Ohio city attorney.

A 2015 U.S. Supreme Court ruling on churches and free speech set a new legal precedent that’s now being used to take down panhandling laws in U.S. cities, Governing reports. In that Arizona case, the court ruled that government regulations curtailing free speech have to be as narrow as possible and must fulfill a “compelling government interest.” At issue was a town ordinance that restricted signs for religious services. But the decision, which applies to any local rules that limit certain types of speech, has caught some cities by surprise. “It’s an unanticipated consequence,” says Joshua Cox of the city attorney’s office in Columbus, Ohio, where police recently announced they would stop enforcing a ban on aggressive panhandling.

The ACLU had long argued that it was unconstitutional for municipalities to prohibit people from begging for money in public spaces. The Arizona decision strengthened their argument. Within two months of the decision, a federal appeals court deemed a panhandling ban in Springfield, Ill., unconstitutional. Federal courts have also struck down panhandling laws in Tampa; Grand Junction, Colo.; Portland, Maine, and Worcester and Lowell, Mass. In Ohio alone, lawsuits brought by the ACLU have led Akron, Cleveland and Toledo to repeal all or parts of their panhandling bans. Most cities have some kind of ban on panhandling. Last year, the National Law Center on Homelessness and Poverty found that 61 percent of 186 cities had laws banning begging in “particular public places,” such as commercial or tourist districts.


NY Studies ‘Testalyzer’ to Police Phone Use by Drivers

The device, still in development, would allow a police officer to quickly check whether a cellphone had been in use before a crash. A civil liberties advocate called the technology “incredibly problematic.”

Police in New York state may soon have a high-tech way of catching texting drivers: a device known as a textalyzer that allows an officer to quickly check if a cellphone had been in use before a crash, reports the Associated Press. Gov. Andrew Cuomo has directed the Governor’s Traffic Safety Committee to examine the technology and the questions about privacy and civil liberties its use would raise. The device is called the textalyzer because of its similarity to the Breathalyzer, used to identify drunken drivers. Officers can plug the device into a phone, and it will indicate whether a motorist was texting, emailing, surfing the web or otherwise using the device before a serious crash.

The technology is still months away from being ready, according to Cellebrite, the Israel-based tech company developing the device. Supporters say the officer would not be able to access personal information on the phone. But civil liberties advocates have questioned whether the device would violate personal privacy, noting that police can already obtain search warrants for phones. Rainey Reitman of the nonprofit Electronic Frontier Foundation called the device “incredibly problematic.” She said, “I am extremely nervous about handing a cellphone to a law enforcement officer and allowing them in any way to forensically analyze it,” she said.