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tv   The Communicators  CSPAN  August 20, 2016 6:30pm-7:01pm EDT

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farmville, virginia. october nine, washington university will host the second presidential debate. leading up to the final debate between the clinton and donald university las vegas. c-span,erage on c-span.org. this is the communicators, where we look at the intersection of public policy and telecommunications. this week, a look at law enforcement and cell phone traffic. how do police use cell phone tracking? >> they use it a number of different ways. they try to find individuals in
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real time, as well as historical information as to where people have been in the past. they want to solve crimes that occurred were about to occur. they use it in those capacities. >> visit an effective tool -- is it an effective tool? >> i think so. case where itent broke the case. would never have found the suspect except for the cell phone tower information. >> are there restrictions on who will be police can use cell phone traffic? >> think it is important to talk about how some of these devices work. you may have heard the term stingray. one of the tracking devices that is used by law enforcement at
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the federal and local level. they impersonate a legitimate cell phone tower. they allow police to gather location information for serial numbers of not just a specific targets followed that all targets though -- phone, but all phones in the area. they can jam advice for making calls. this has extraordinary implications. the rights of the individual you seek to target and all other individuals in the device's range. protections to make sure that it is used appropriately. we have seen a lack policy around what information must encouraged. generally the information has not been made public, and there is a debate on how they should be used to all of this is very
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concerning. >> should police have to get a warrant? if we are talking stingray or cell tower information, there is a number of different areas and technologies. let me give you a disclaimer. i own a smartphone but that does not make me smarter than technology. if you are talking about stingrays, cell phone tower information, real-time information through third parties, there are all different legal consequences. if you are talking about a war requirement, i think absolutely. legislature our
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required that. we got together with the aclu and pass legislation to make it clear to law enforcement that any stingray sort of his situation that you have to have a search warrant it is not clear as far as constitutional law at this point in time, but we are getting close to that. i agree that a lot of this information has not gotten out. name and ita brand is kind of like q-tip or scotch tape. it has become a generic term like those. but when you're talking about a stingray, these are devices that are hellish phones to give their location data to this particular box that the law enforcement has. the company that produces the stingray has a nondisclosure
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agreement with every law enforcement agency because there is a problem with getting the information out. discussionbeen the about that in the court. >> let's bring in dustin from reuters to the conversation. he covers policy. one of the things this often leads to is that a beenray may not have disclosed to the judge or defense attorney. that fair that they do not know how the evidence was collected? >> we in lynchburg do not have stingrays. i'm going by the information that i have read and gleaned from various stories. but my understanding is before
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the harris corporation will sell a stingray to anybody they require a nondisclosure agreement. -- law enforcement agencies to be perfectly honest, this is not want to disclose this information because it leads to people asking questions that is ok. it is all right for people to ask questions. we need the public trust in what we are doing. in virginia we require search warrant before you could use a stingray. whatever agencies that are in virginia that have stingrays they have to have a search warrant and there's going to be some sort of disclosure, some sort of notice as far as that. i have read a lot about baltimore where they have a number of stingrays and have
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used them numerous times with very little disclosure to the point where there have been cases over the information. i it will only lead to a positive thing. >> should the local fbi, police be able to use technology that they have these nondisclosure agreements? >> i do think it is very important to understand that this has been condoned by the federal government. local hand we have seen prosecutors in some jurisdictions withholding information from even judges. foundoma, washington we after the fact that they were approving all these other stingray.ns of the
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rightfully judge responded that they did not sign a nondisclosure agreement with him. attorneys are not being told how the information being used them was gathered. that is something that the constitutionally generally recognizes that constitution generally were consist you have a right to know how the evidence was gathered against you. in maryland, they estimate several hundred cases where individuals were not informed of this. requestsfiled several and had several e-mails from the department of justice saying that if you are going to use from a stingray say
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it is from a confidential source, not based a great. they are not being aware of the devices and not being aware of the procedures and setting secrecy condoned by the department of justice needs to change its policy to make sure that information is disclosed appropriately to the public, to the judges and the criminal defendant. >> i do not practice in federal court, but it is my understanding that the doj has implement a policy that required they have a search warrant. case i get from his the that made a footnote that the doj has this particular policy from last year. one other thing i want to draw a distinction with is that the court orders that they have been talking about these are court
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orders pursuant to the communications act and they had a standard that is not up to probable cause. standard a totally list of procedure and i'm sure there are instances where there is no order at all grade when they do get the orders there is a court review of this particular information. how thorough those orders are i think pens of how much information is put in this particular orders and what questions the judges are asking. i think it is incumbent on our judiciary to have a working knowledge of what these things are and what they are doing and what they are siding. -- signing. right that the department of justice last year did issue a policy that was set forward in the sense that
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federal agent should be getting a word before the use stingray. but the policy has glaring loopholes. applyrst is it does not to states and localities that you federal funding to buy them. if you receive $1 million for stingray canof the be your not bound by the new policy or that requirement. the second is that the policy of the department of justice and the homeland security have a loophole for that requirement. the policy says you do not need a warned in exceptional circumstance is. we know exceptional is not emergency because there is already an exception for that so in what cases are they not getting warrants when they have in exceptional circumstance to while it is a step forward that having policy where this warrant is required
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there is a lot more that needs to be done. >> and department of justice guidance does not affect other agencies as well. has used stingray technology they are not bound by that requirement either. i think a lot of people are surprised that these agencies use this technology. why would the irs need a stingray? >>? these are all great questions. and ie not had guidance think with this speaks to is the need for legislation that are policy on this. we cannot leave it to this. embarrassingal congressional inquiries for the department of justice to be the list issue that limited policy. that is not the way it should work we used to surveillance technologies. worried aboutbe
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the privacy concerns after the fact we really need to flip them mentality where we have a robust debate in congress and within public. how should people be notified and all of these should be answered on the front end, not the backend. makea does -- >> does it you a comfortable that they are signing a nondisclosure agreement with a law enforcement agency? language, ien the was shortly question with the language was because we have certain constitutional requirements that we have to live such as this closing information pursuant to discovery. we cannot be bound by subcontract -- some contract with a private entities that says this from sure
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constitutional requirements. but i would have to look at the language and see what it said because if it says i could not requote disclose it regardless, keeping in mind that we can do this another way. you do not have to have a stingray. allows law enforcement to do it directly. the cell phone provider, it is a little more cumbersome, but it works just fine. i know some jurisdictions require a court order which has a lesser standing but we can get this information without having to go through the stingray process. we do not have to have the nondisclosure agreement if we choose not to have it. >> to use that will regularly as
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far as search warrant? >> use more storage cell tower information, in the sense that -- keep in mind, i do not do investigations. i get the cases from law enforcement. that is the way it is in most offices in virginia. there may be other jurisdictions like in rhode island where the prosecution is somebody from the attorney general's office. there may be other jurisdictions where they are involved earlier there may be the occasion where we would ask for a search warrant for a third-party cell phone provider to provide real-time location data. we do have that route available, should we need it. >> do you have a problem with law enforcement having access to that tool? >> our position has always been
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that the constitution requires a warned. most courts, when it comes to real-time collection have been in line with that and the department of justice in most jurisdictions say a warrant is required for real-time gps location. the information over the past six months for the past eight months, many jurisdictions do not require a warned. do not think that is constant with the constitution, but this is an issue that the courts need to resolve and on which congress needs to act in -- act. if you could tell a person i can track where you have been for the last six months, that is extremely sensitive information. and it is also increasing in accuracy. it is not just the general area where you have it, he could be the floor of the building you are on. s, wechnology develop
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need the courts to say that this is sensitive information and you need a warrant. that is what most people want to have happen. think the constitutional requirements are more complicated than all of that. united states versus jones about the gps device. when you look at the concurrent opinion, dealing with the mosaic jurisprudence, i have the georgedit to washington law school because the professor there came up with it. it is rather than looking in sequential fashion, like we normally two, we say is event a violation of the fourth amendment if not, is event be in
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violation, and so on and so forth. this was later adopted by a fourth circuit three-judge panel reversed. you might have a situation where there is no fourth amendment violation over a passage of time. you can say this piece of title may not be a fourth amendment you have itut now mosaic and night of a fourth amendment violation you have the tension between those, and then you have the third leg of the stool which is the third-party doctrine. a lot of cases, you have to see if the third-party doctrine is a lie. -- is implied.
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they basically said this information from cell phones is being provided to a third-party and there is no reasonable expectation of privacy when it comes to a third-party. the was based on cases from 1970's. at this particular point in time, are these cases dealing with technology that did not exist in the 1970's and is that going to be how we decide these cases? this is tough for case law to be developed. the justices talked about this is a realm for the legislatures, because they can act quickly and use more information they are not bound by previous decisions like the courts are.
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we see things in virginia where we are trying to balance this test versus following case law and we are saying that the general assembly of virginia said real-time location data and stingrays have to have a search warrant. historic cell phone tower information is different. to my knowledge it is not as accurate as she makes it out to be. cell tower information is a 120 r,grees angle on your towe and the range goes about two miles. you can see in four square miles were someone's phone might theb. to aght very well get point soon where is more accurate, right now it is not that accurate. there was a decision recently
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saying it was not a requirement to get a warrant for third-party cell phone data. this is not data that they are knowingly giving away, not part of the contract they have with the company. this going to lead to the supreme court revealing it at some point? the fourth circuit was the fifth circuit to rule on this historic cell tower information. that, buttalked about 12 of the judges said the third-party doctrine applies unless the supreme court says differently. they basically said to congress, here is an opportunity to delve into this. and you are more appropriate
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than we are. it the fourth circuit said is not up to us to get rid of third-party doctrine. they also offer to the supreme court say you want to get rid of the third-party doctrine, you want to get rid of 40 years of jurisprudence. we are going to brave new worlds whether we eliminate the third-party doctrine of whether theory --te laissez mosaic theory. we do know that 28 days is too long, but we do not know before that. respond?you like to think the idea of third-party doctrine in today's
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day and age would really bother most people. the idea that all of us use cell phones and providers. we have a lot of our private information passing through this third-party. and there are limits to this doctrine. saide sixth circuit, they if you use a provider sending your e-mails, you should not have an expectation of privacy. cases thaty of the are relied on to support this idea that just as you give your information to a third party, you have constitutional rights and reasonable expectation of privacy. reflectsthink the data how we use technology today. the other point that is important to make is about the accuracy of this information.
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old, manye cases are are not accurate. but that is not true in today's day and age. the precision could be quite accurate. people want better cell phone service. they want faster service. the ability to boost phone service in a particular area. floortwo pin point to the of a building because it may serve only one floor of a building. it may pinpoint whether you are in a homecoming a church or an alex anonymous meeting. i think there is a need to to gather warrant requirements and
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no wonder congress and the legislature should do that or whether the the supreme court will ultimately decide. i think it is important to put in place a lot of policy that protects people information. >> where would you like to see it decided? >> i think that the issue is ripe for congress and legislatures. unfortunately, we often see the courts lack behind technology. often the technology has outpaced what is examined. they urged congress to have a role in put in place legislation. it is important to note that it is not just phones that have locations, it is all kinds of devices. whether they are fitness devices or other applications that track
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location to provide full services, we are seeing many different companies that now have access to location information. for that reason i think it is important that congress be on the front end of seeing her technology is leaving and put into place the requirements to make sure people feel secure. they do not want people saying they will not use a device or at because they are worried that .heir information is not secure chicago and ferguson, some people suggested that stingrays were being used to track protesters. his inappropriate use of this technology? >> i cannot comment on that. on't.
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i think -- this is my own personal opinion. that is inave a use exigent circumstances when you , pursuantk or never to a warrant that may be proven appropriate. there's an active mode and a passive mode. the active mode is that they send out a signal and paying ping the phone and the phone answers back, saying here i am. then there is a passive mode, religious gather whatever walks by. knows that, verizon when a call comes in, to send it
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to this tower. because the third-party doctrine is still alive at this particular point in time, if they are using it in a passive mode, i think that is a lawful use. i think when you are in active , and not looking for a particular phone, you are looking for a group of phones, to spy, i cannot condone it. is that one reason that the words is not being used, because the judge would not approve that ? -- the warrants are pretty new. there's a lot of concern about how use a warren commission especially in a stingray environment.
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our -- search arrant are made for particular time, particular item within you are looking for who goes what, and who goes where. weather is active mode or passive mode of us in race are mass surveillance devices. you're talking about gathering information of all phones in a particular range. the u.s. marshals service attaches these devices to planes, and maximize their area. given the implications of that, given the impact of rights of thousands of people at a time, i think it is important that we have fierce standards in place and clear policy. the reality is we do not. we do not because the federal government has not required
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states and localities to follow certain guidance. is now that more information public, congress and the department of justice have a responsibility to put in place better standards. neema singh giulani is from the is a and mike doucette commonwealth attorney from the state of virginia. thank you for being with us. >> c-span, created by the table television companies -- cable television companies and brought to you by your service provider. three years after a supreme court ruling overturned part of the voting rights act, a number of state laws have struck down.

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