Think it’s just in Airports? Think again

terahertz-imaging-detectionHow would feel knowing that police are now capable of using the same technology used in airports to scan human bodies for weapons, ON THE STREET? The New York City Police Department has always had a big challenge on its hands dealing with guns and is now turning its attention to a system that can achieve this kind of walking gun scanning, right from a police car. You heard that right: police cars can scan people on the street for guns on their body. Their purported intent of course is to scan crowds for danger, a laudable goal that many would support in the abstract. But this particular implementation raises significant questions about the balance between security and privacy and how far we are willing to go to let one yield to the other. Not to mention the health concerns that prompt people to opt out of this type of thing in airports (this author included).

NYPD is saying that this kind of system “would only be used in ‘suspicious’ situations”, putting aside pesky questions about who decides what is “suspicious” and the natural tendency for anyone with a hammer to see the world as a bunch of nails. Let’s face it, we are living in a post-privacy world and that’s not news. What is news is that we appear to be sitting back and just letting it all happen without stopping to think of how far it will go, unregulated. Public DNA scanners seem inevitable, systems that track patterns of movement and purchases are already in place, and in the hands of a tyrannical government, there’s nothing they can’t know or see. Are you Ok with this?

Interesting questions arise in the criminal defense context. Is this a warrantless search? Are “suspicious circumstances” equivalent to the “probable cause” that our Constitutional Framers articulated to throttle the government’s intrusions, having no idea of how far those capabilities would advance in the future? What does it mean to be a “Textualist” or “Originalist” interpreter of the Constitution when there is no possibility that the Framers could envision this type of governmental intrusion? These are questions that will be answered as arrests take place and searches are litigated. Until then, make sure to wear underwear when you’re out.

- RP


Facial Recognition Software is Creeping in

We’ve reported on this before, but its use is intensifying. What the government can’t do via a national police force, it can do by funding local police agencies across the country. The Department of Homeland Security is providing funding to local police agencies for all kinds of technology aids in tracking “suspicious persons”. Seattle now joins the growing list of police agencies across the country using facial recognition software to scan local surveillance cameras looking for … who knows what. Ostensibly they are using the scans to look for suspects in criminal activity, but this type of dragnet is pretty broad. The scans are made against national databases maintained by the government and based on photos taken from driver’s license and passport photos across the nation. How these are being used to track crime isn’t exactly clear.

When police complain that they are under-funded and under-staffed, it’s hard to reconcile that with arrests I’ve seen where 9 police officers come out of a closet in a hotel room to make one prostitution bust.  I’ve seen this kind of emphasis on “Vice” activity regularly, but I never get an answer as to why it’s a priority. But isn’t it obvious? The laughter and the smirks on officer’s faces when they confront an arrested prostitution patron tell the whole story, it’s just another form of amusement and titillation that beats the heck out of walking the beat or working a crime scene. And now the government is using your tax dollars ($1.6 million in Seattle’s case) to give officers more things to look at instead of criminals on the street.

The privacy concerns are real and they are frightening in their own right. But the outright waste of money and resources that are being gobbled up just because they are there is outrageous. I’ve yet to hear a cogent argument explaining the value of running hours and hours of random surveillance scans through public databases on the off chance that something, somehow criminal *might* be happening.

- RP

Technology’s Erosion of Privacy – How to Stop it?

It’s axiomatic that what constituted an “unreasonable search” in 1789 is difficult to translate to 2013. And the US Supreme Court’s “reasonable expectation of privacy” rubric doesn’t help much because ”reasonable expectations” naturally evolve with the technology landscape. But the implications of this anachronistic approach are staggering and little is being done to address the problem. What is at stake is one of the most cherished protections enshrined in the Bill of Rights, a document that literally was required in order to adopt our Constitution. From the beginning, Americans have expected to be free from “unreasonable searches” by the government as a fundamental part of their package of individual rights. And we are losing that protection as technology advances faster than our legal system can react.

The legal system simply isn’t capable of keeping up with the pace of technological erosion of privacy. The only way these issues can be resolved jurisprudentially is via the following process:

1) A new technology is invented and police quickly adopt it for use in a criminal investigation;

2) A suspect is convicted at trial and preserves their objection to use of the technology;

3) The long series of appellate courts refuse to grant the defendant relief;

4) The matter makes it way to the United States Supreme Court by petition for  a writ of Certiorari (“Cert”).

5) Four members of the Court agree that it’s an issue worth hearing and they grant Cert.

6) The Court hears arguments and issues a ruling.

This process can take decades. Meanwhile, of course, police continue to use the technology to the point where the very definition of “reasonable expectation of privacy” changes to reflect that people no longer expect privacy where they once did. The result: an ongoing, uni-directional erosion of privacy with no end in sight.

The following article published by Eleanor Birrell at Harvard suggests some solutions with teeth. Don’t hold your breath.

- RP


Still in trial

The defense will be resting this week (Wed or Thu) and I expect a verdict will be returned shortly after the jury gets the case, probably by end of day Friday. We are out of session today and resuming tomorrow. Until the verdict is in, you know where my thoughts will be. Thanks.

- RP

Out to Trial …

Just a quick note to let folks know that I’ve started a 4 week murder trial that will occupy every moment of my spare time between now and the verdict. Until then, thanks for reading and I’ll see you on other side.

- RP

Government DNA results slanted?

dna-model-black-500DNA is easily the most valuable scientific tool available to help determine the truth in the courtroom. The accuracy of DNA profiling to determine personal identification and individualization is unmatched and can help both the prosecution and the defense when used properly. The problem is that it is NOT always used properly and when this happens the results carry so much weight in the minds of jurors, it can lead to disastrous results. Both sides in any litigation need to be aware of the potential for “slanting” of results. Government DNA analysts are by definition intelligent people who understand who pays their paychecks, and it’s no secret what outcome is desired when they are asked by police to perform an analysis.

Real scientists encourage the use of “blind” testing, where the desired results are not revealed, in an attempt to minimize the tendency of the tester to favor one outcome over another. This is standard scientific method and there is no good reason to avoid the practice if one really wants the truth. But police are not in the business of trying to discover the truth. They are in the business of trying to secure convictions from suspects and it has become routine procedure in criminal cases for the government’s DNA analysts to be told in advance what the case is about and what police are trying to prove. This kind of advance telegraphing of the desired result is not likely to be forgotten by the tester and any judgment calls that could be made during testing are inevitably going to result in slanting the evidence against the suspect.

Defense lawyers need to review government DNA reports carefully and look for evidence of this actual bias. In extreme cases it may even lead to suppression of the evidence or worse, prosecution or disbarment of lawyers who deliberately manipulate the results in their effort to prevail in court. Any defense lawyer who assumes that government “scientists” are as objective as independent research scientists is fooling themselves. Don’t assume, expect bias and challenge it with your own expert’s review of the process.

For a good read on this topic, check out this Champion article.

- RP


Anything you Tweet may be used against you


Social media is making life a lot easier for cops and prosecutors to prove intent. An 18 year old California man was originally charged with vehicular manslaughter after “accidentally” killing a 58 year old cyclist in Dublin, California. When an ordinary vehicular accident results in a death, prosecutors can bring charges of manslaughter, a lesser form of homicide that is generally based on negligent or reckless behavior, without an intent to kill, or “malice”. A specific intent to kill, or ”malice aforethought” is a generally required element of murder. When, however, there is evidence of the kind of reckless behavior that anyone should realize is likely to result in death, malice can be implied and murder charged.

Imagine, for example, a man points a gun into a movie theater and fires indiscriminately, killing someone. He later claims “Hey, I didn’t intend to kill her, I didn’t even know she was there”. That kind of behavior is obviously so full of general ill will that the element of malice needed for a murder charge can be presumed just by virtue of the behavior.

In this case, prosecutors had the idea to check the young man’s twitter account and found several tweets before the incident bragging about how fast he had been speeding through the area and making statements like “Live Fast, Die Young”. This was enough evidence of intent to cause prosecutors to upgrade his charges to murder.

Remember, anything you post anywhere on the Internet is permanent, forever, and likely to be retrievable by someone somewhere for whatever purpose suit them. If you’re not comfortable having it broadcast to the world, for crying out loud, don’t post it or tweet it.

- RP




Defense has the right to the horse’s mouth


DNA reportAll too often in criminal cases, a demand is made for discovery of lab reports prepared by government crime lab employees, only to wind up getting instead a report prepared by a “supervisor” who signed off on the work. This government efficiency move saves the crime lab some cycles, but it places an unnecessary barrier between the defense and the actual scientists who performed the work in question. When I serve a subpoena for a DNA report, I’m not interested in the supervisor’s “sign off” of the lab scientist’s work, I want to see the particular employee’s work and assess their methodology and conclusions myself (or through my expert).

The D.C. Court of Appeals agrees and ruled that the Sixth Amendment’s Confrontation Clause requires production in court of the crime lab employee who did the actual work. The Court found that it was substance of the testimony, not its presentation, that mattered, and that the supervisor in this case provided “critical testimonial hearsay” that prevented the defendant from realizing his right to confront the actual witness against him. Because the supervisor was not personally involved in the process that generated the DNA profiles in the case, she had no personal knowledge of how or from what sources the profiles were obtained.

This makes sense. There is no point to cross examining a “supervisor” who has no knowledge of the critical processes that determine the outcome in a laboratory procedure. Only the person actually performing that procedure is going to have the knowledge necessary to satisfy the rigors of what the Supreme Court has characterized as “the crucible of cross examination”.

For more, read here.

- RP

Crowd Scanning

FRWant to get lost in the crowd? Good luck. The federal government is developing a surveillance system that uses computer software and video cameras to scan crowds and automatically detect people by their faces. The purported use, as always, is benign and is centered on the ability to identify terrorists on the watch list. Presumably, if the Boston Marathon bombers had been under suspicion and this technology had been used at the site of the marathon, the government might have been able to monitor their actions. That’s the premise. The reality, unfortunately, is different. Just as Aaron Alexis, a person with known mental illness and prior arrests for violence, was allowed to purchase automatic weapons and obtain a pass onto the Naval Yard grounds in D.C. prior to his mass murder rampage, and just as one of the Boston Bombers had been called to our attention by Russian security agents, even when we have this kind of advance information we don’t use it. How can we? Can you imagine how many people in this country could be “identified” as potential future nutcases that could go off the deep end? Every one of these guys is described after the fact by friends as “the last person you would expect to do this kind of thing”. We are caught between the ideals of personal and individual freedom, and protection from all threats. You can’t have both and the question will always be where to draw the balance.

The answer does not lie in being able to monitor all Americans, “just in case”. Even if it were possible to identify potential threats in this manner, is the benefit worth the cost? More Americans die falling from ladders every year than are killed by terrorists. Our country was founded (meaning, we killed our oppressors and threw them off forcefully) with the united purpose of establishing a nation based on the core principles of individual freedom, and that essential character has never changed. Why, then, would we give this up in order to gain modest-to-non-existent levels of additional security from sporadic threats?

This technology was originally developed in order to support the military in their detection of potential suicide bombers and other terrorists overseas at “outdoor polling places in Afghanistan and Iraq,” . But in 2010, the effort was transferred to the Department of Homeland Security to be developed for use instead by the police in the United States. The Constitution does not authorize a national police force or a domestic military. Yet this is exactly what the Department of Homeland Security is creating (if not deliberately, certainly by default) as it arms local police agencies with technologies that are ultimately going to be used primarily against law-abiding citizens in the hopes that a big enough net will drag in the bad guys with everyone else.

Read more about it here.

- RP

Smiling Not Allowed

This is how the government breaks your face.

Ever wonder why you are told NOT to smile for your Passport or Driver’s License picture (or your booking photo, for that matter, but that probably narrows down the number of you who can identify with the question)? There’s a reason. It’s called Facial Recognition Software and it’s a technology that analyses photos of faces and breaks them down into unique numeric codes that claim to individually identify a person. The software essentially scans a face, breaks it down into various regions (cheekbones, eyes, etc.) and assigns numeric values to each of these regions. The resulting numerical value is claimed to be unique for every face scanned and technologists claim they are able to identify people based simply on a photograph of the person.

This is not some futuristic scenario, this is happening today. It’s why you might get a notice from Facebook that you have appeared in someone’s posted photo. Facebook actually uses Facial Recognition Software to scan every face in every photo on its site and uses it to help identify people for just this reason. You should keep in mind that the State Department also uses this software and tracks every face on every passport and driver’s license, but probably for very different reasons. All of those faces are available to law enforcement across the nation for whatever purposes they come up with.

Police in New York, for example, have started taking images caught on surveillance cameras around town and on social media and are sending them through Facial Recognition Software in order to locate suspects. At least, that’s what they’re telling us at this point. What else they are doing with your picture is anyone’s guess.

The software does not work well with smiles or profiles. So next time you have your photo taken at the Department of Motor Vehicle Licensing, or send in a picture for a passport, and are told not to smile, you’ll know why.

Read about the NYPD’s usage here.

- RP