 Trevor Burrus Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Trevor Burrus. Aaron Powell And I'm Aaron Powell. Trevor Burrus Joining us today are Matthew Feeney, policy analyst with the Cato Institute, and Adam Bates, policy analyst at Cato's Project on Criminal Justice. Welcome to Free Thoughts, gentlemen. Trevor Burrus Thanks for having me. Aaron Powell Glad to be here. Trevor Burrus So of course in all areas of life, technology is changing pretty fast and today where we're talking about how technology is changing law enforcement and just as an overview of the kind of stuff you guys are working on, what are we seeing before we get down specifically into different technologies, what are we seeing immediately on the horizon of like big technological changes for law enforcement and police? Matthew Feeney Well speaking for the kind of research that I've been working on, I think that lots of changes in technology that we've witnessed in the civilian world are making their way to law enforcement. So this is not just miniature cameras, but it's also drones. That is used mostly by law enforcement that isn't quite as popular among people like you and me might be things like facial recognition software and things like that and perhaps even further along in the horizon we have things like artificial intelligence and automated surveillance and things like that. Aaron Burrus Hoverboards. Matthew Feeney Right. Aaron Burrus Well and to add on to what Matthew said, it's not just technology from the civilian world making its way into law enforcement. It's also technology from the military that's increasingly finding its way into domestic law enforcement. Things like cell phone trackers, cell phone surveillance devices which, stingray devices which is something I've done a lot of work on, electronic card readers that can take money straight out of your gift card accounts or your cash accounts at your bank, facial recognition technology drones, I mean the list just goes on and on. Anything that the government is using overseas, any kind of technology, we're at a big risk of having that come home into domestic law enforcement. Is there something new going on here with this tech though? Because I mean law enforcement has always used technology and always tried to embrace new technology to keep up with the criminal element and keep an eye on evil doers. Matthew Feeney Well I think what's unique about the time we're in now is the threat to privacy is of particular acute concern. So while there are a lot of tools that are pushed forward by accountability and transparency advocates like body cameras. Who run the risk of these tools being used in a very frightening way without the right rules and procedures in place? Yeah I think we have a problem with our jurisprudence and the framework for how we oversee, for how we hold law enforcement accountable, our transparency rules, things like that are lagging far behind the pace of the advancement in technology and I think that's really where the problem is. Of course technology will keep up with the times and it should for law enforcement but that kind of legal regimes and our individual rights protections need to keep up also and sadly they're not. So let's start with one of the ones you mentioned because we can just kind of go through some of these technology by technology. You mentioned stingrays which as you talked about Adam you've done a lot of work on these but a lot of people don't know about stingrays and when I've heard you lecture on this you tell a story about us trials and how stingrays were kind of discovered being used by the government which I think is a good way of explaining what a stingray is and how terrifying it actually is. Right so there was a case in Florida about three years ago where two young men decided they were going to rob, they were going to set up a drug deal and then they were going to rob the drug dealer. So when the drug dealer got there they had BB guns that looked like real handguns, they robbed the drug dealer, they took the drugs, they took money, they took his cell phone and then they fled and a few weeks later the police managed to track them down and when the police caught them they had the cell phone, they had the drugs, they had the money so this is what we would call a slam dunk kind of case for the prosecution yet when they went to court a wary defense attorney couldn't quite figure out how the police had managed to find her client and started asking the police you know how did you manage to track down our client just based on what the victim told you and that at that point the police started invoking things like national security concerns to say they weren't at liberty to disclose the nature of their investigation that tends to be a good way to get a judge, to get a judge's eyebrows raised and basically the police just refused to say where they, how they managed to track this person down it ended up with the prosecutor having to withdraw that evidence because the police simply refused to explain themselves and the armed robbers ended up getting a very sweetheart plea deal and going home that day rather than spending 30 years in prison so what a stingray device actually is is called a cell site simulator so what it does is it mimics the signal of a cell phone tower and forces other cell phones in the area to connect to it once you're connected to it the police can do things like track your location they can get information off your phone they can get it's your international mobile subscriber identity your emcee number which identifies your phone as yours it's widely accepted that these devices can even get content such as intercept the actual content of your phone calls read your text messages although law enforcement has not been proven to be engaging in that behavior but this is a serious surveillance device that has been used by the military and by the intelligence agencies around the world and it's being used now in domestic law enforcement often without warrants sometimes even without court orders. You said that this it forces cell phones in the area to connect to it so does this mean that the data it's getting is indiscriminate indiscriminate between the cell phones in a sense that you can't pick out just like we want this person's cell phone but instead you're going to suck down this data from all of the cell phones that you're forcing so there are two ways that there are two ways that can be used one is if the police already have your emcee number or they get it from your cell phone carrier they can just plug that number in and they can drive around this thing's about the size of a suitcase and they can ping for that individual number and so that is how they location track they can just drive around until they start getting hits on that individual number. The other way it's used is the way I mentioned which is to just force every cell phone within the range to connect to it and at that point they typically will use visual surveillance if they know who they're looking for for instance they will follow that person around and as that person moves from place to place the other numbers fall out until that's the only number left and then they can so they can derive your emcee number you can put those two tactics together and then have a situation where the police do not know your emcee number but they can find it and then they can track you after the fact and also obviously if they're at a political rally or a protest or above Baltimore during the unrest they may just be interested in getting all that data at once and these devices are capable of that. So how is this different so over the weekend my we misplaced my wife's phone in a restaurant and I was able to find it by just doing the find my iPhone on mine and it tells us exactly where it is and I can erase it and I can emit a sound which is how we found it in the hands of two teenage girls we're gonna make off with it. But is this is this scarier than that? Well it's scarier in the sense that this is being used by the government and that this in so far as you're voluntarily giving out the location of your phone to Apple in order in order to track it down. I think that's a much different scenario than having the government without people's knowledge without any kind of in many cases without any kind of judicial oversight gathering up this information and then attempting to introduce it against you potentially in court. So yeah I think there's a much there's much greater threat in that scenario than the one you mentioned. This is this is basically like becoming a cell tower for your like words your phone was normally connecting to the most proximate cell tower. It sucks them all into this thing it's a mobile cell tower and so certainly the governments your cell phone provider in a weird sense for a bit. Right and your your phone is your phone is designed to connect without any input on your part is designed to connect to whatever towers is giving it the strongest signal at any time. The Stingray gives sends out a boosted signal that basically muscles out the legitimate cell phone signals and forces the phones to connect to it. So this can all go on without your knowledge and you'll never know our phones could be on Stingray's right now. They could be on Stingray's right now. They have one hovering above Kato and maybe they would. They might. Yes. That of course goes to the scary part because they because you've alluded to it when you talked about the case but the the scarier part I would say you alluded to it but the secrecy around these things is absolutely astounding. You can't they don't they don't acknowledge how it works. They don't even talk about like there's only one person who builds it but you're not even allowed to talk about it. You can get into it. It's amazing. Right. So yeah even as someone who's generally cynical about government and technology. I can verify this. The the secrecy around this is is shocking. So because so as I said these started out in military hands in the intelligence services at some point the Harris Corporation which is the company that manufactures these devices decided they wanted to start marketing them to state and local law enforcement because they emit radio waves. They're regulated by the FCC in the FCC's licensing of Stingray's to for use by state and local law enforcement. They they came up with a rule that says if you are state or local law enforcement you want to Stingray you have to coordinate that use with the FBI. So the FBI took its authority and they constructed a non disclosure agreement. It's a list of conditions that that police agencies have to agree to in order to use a Stingray. And one of these conditions is you basically have to give the FBI veto authority over virtually every aspect of a Stingray investigation. You're not to disclose that you have it. You're not to disclose how it works. If you produce evidence from it you're not to disclose even to judges even to defense attorneys in court where that evidence came from. And you have to give the FBI authority to shut down prosecution. You have to throw cases if the FBI tells you to in order to protect the secrecy of this device. And that's what happened in that case I mentioned and it's happened in several places around the country in that level of secrecy is just galling I think. Why the concern with secrecy about it though I mean if they work they work or is this is there the possibility of alluding them if you know all of the details. So the the argument has been thus far that if in the name of terrorism and in the name of fighting the war on drugs if the bad guys figure out how this technology works and they understand the capabilities of law enforcement they'll be able to elude it. I think that's that's not a very good it's not a very persuasive argument. Anybody who's watched the wire knows that the drug dealers and terrorists they figured out their cell phones were liabilities a long time ago. So it's not an argument that rings very persuasive to me. But so far the argument for the secrecy has been it will if everyone knows how these work it will compromise their efficacy. So what can we do. I mean like what is there anything we can the successful legal challenges have been brought or what can we do to try and protect ourselves because this this seems to be something that they would love to use indiscriminately and get a lot of information on us and we would not even know. And they have been using them indiscriminately. I think a detective from Baltimore testified that they had deployed their stingray 4300 times in just a few years. So what can we do. Well this seems like a fourth amendment issue. So there have been court challenges and in the last few in the last few months we've actually had some wins in places like Maryland arguing that they need a warrant. They need a warrant before they deploy the stingray. But one of the reasons it's been so difficult is because of this secrecy because of like the nondisclosure agreement. Whenever defense attorneys started to get wind of what was going on here and started asking questions they would just throw out the evidence or drop the case. The defendant takes a sweetheart plea deal or takes the drop case. So this never gets appealed up the chain. This is never being seen by appellate judges who would issue the kind of presidential rulings that where we would get a good case law on this. And so right now we're at the very early stages of of legitimate case law on stingray use. So moving on to other items of technology and since Adam brought up the fourth amendment that is sort of an undercurrent of this entire where does the fourth amendment apply in these new areas of peaking and collecting data and things like this. Now Matthew you've been you worked on body cameras which has privacy and concerns. These are body cameras for police. So can you just talk a little about what these are and how they work. A lot of people don't understand how they work and what the benefits and costs are to them. Yeah. So body cameras are as the name implies cameras that you attach to your body and officers can attach them to either their chest area or helmets, lapels. If they're wearing other gear they can attach it to pockets or belts and things like that. And the argument for them is that they increase accountability and transparency and law enforcement. They're comparatively very easy to use. They operate with single button usage. One of the more popular models the one made by Taser records on 30 second loop so the camera will record 30 seconds and delete, record 30 seconds delete when you activate the camera the previous 30 seconds is saved and then a larger file can be created. And the argument is that if more and more officers wear them that there will be reduced incentive for them to use excessive force and it also means that it will be easier for investigators to investigate allegations of police misconduct. But they can also be used by police to dispel frivolous accusations of sexual assault or misconduct. And unsurprisingly these things are very very popular. They are supported overwhelmingly by the vast majority of Americans regardless of racial or political demographic. And there is some evidence to suggest that after being introduced body cameras do prompt some kind of reduction in use of force and complaints against the police. Although this is in classic social science problem of correlation and causation and in fact there was a recent study that came out looking globally that found that actually body cameras were followed by an increase in assaults against police and excessive use of force. But I think actually that it shouldn't that shouldn't be the first priority on what the effect of these things are. I think their main value is in investigations that as Americans we deserve to know after a controversial incident what actually happened. And body cameras undoubtedly help us in that endeavour. So if they're one button operated record 30 seconds deleted does that mean that they depend on the officer deciding to turn them on? Yes. And this has been a main point of contention especially among police unions and other police advocates which is that they that these body cameras do introduce an extra burden to the job. And this I think is an argument that has some weight to it but not enough that we should dismiss cameras all together. I've been fortunate enough to actually hold one of these cameras. Undoubtedly there is a training period and people might make mistakes but police have adapted to changes in technology in the past. Dash cameras, tasers all these things come with training. And in fact I think you can perhaps provide incentives for them to have good training and to really know what they're doing by mandating strict punishment for officers that after training do forget to turn these things on when they should be on. But it is definitely a point that has been widely debated. So the idea be that they would they get out of their car after stopping someone they turn it on or when they stop someone on the street they turn it on. Yes, yeah. There have been proposals written I think the ACLU has proposed that if an officer should have had the camera on but it happens to have been off then the evidentiary burden switches. I'm not quite sure what I think about that but it is evidence that people are thinking hard about this. But you get into awkward questions because of course officers regularly talk to informants or undercover officers. They talk to children who have been sexually assaulted. They're talking to domestic abuse victims. And it's not you know you can understand why police would want there to be clear policy about well can I record this if it's that kind of sensitive data. And then the question that's also important is well should the public have access to that footage. And even things that aren't crimes things like car accidents which officers regularly are at the scene of gruesome accidents and you can see why we might be concerned about there just being an industry of people requesting body camera footage to make gruesome YouTube videos for example of Gore basically. What sort of policies are we seeing in place to deal with I mean around the country I imagine different police departments are doing different yeah having different policies about turning them on and how they store the footage and how they distribute the footage. Now generally also are police unions against body cameras or do they think that it will help police out too. I think you're seeing a shift actually that the officers are coming to understand that these are tools that can help them. And I've seen incidents of police officer being accused of sexual assault when he had done nothing of the kind and it was easily disposed of as a frivolous complaint because the officer was wearing a body camera. And so I think you will gradually see shifts. Now there are 18,000 roughly law enforcement agencies in this country that 50 states the regulations governing these things is rather diverse. So for example in South Carolina body camera footage cannot be requested via FOIA by journalists just period. But then Washington DC has comparatively quite good policy on body cameras. Baltimore for example has a policy that bans facial recognition software. And the storage of this is in large part a fiscal issue because these are collecting massive amounts of data and storing all that data can be expensive and not to mention the redacting of the footage if it's going to be released. And so in large part I think fiscal reality will dictate policy. It's unreasonable to impose for example on a police department with a small budget that they must keep all body camera footage for 10 years for example. That's not an actual policy but hypothetically. Yeah, sorry. This seems like one of those areas where it would be hard for the regulations to keep up with the tech because the things that we're concerned about like how easy these things are to use or how much on board storage they have or whether you can store 10 years worth of footage. I mean the answers to those questions and the costs of answering yes to all those decline so quickly compared to whether we can update the regulations that I just see the regulations becoming way out of date really fast. Yes. So you raised an interesting and important point which is that the cost of these things will decrease as technology improves which is a good thing and we will probably be able to store more data for longer and it will be higher quality and the redaction of that will be a lot easier. And so I think and there's also the other fiscal point which is that actually if it is true that body cameras reduce complaints against the police and the number of use of force incidents will be less resources and money spent on paperwork and investigations and all these other kind of things. What are the and right now what are we seeing is like in your opinion the best policies and practices related to body cameras in sense of do you think FOIA request should be generally allowed or? Yes. So shame this plug. I did write a Kato paper advocating the ideal what I considered to be the best practices for body cameras. So I think ideally that the incidents that the public are concerned with so these are arrests, detentions, use of force. These kind of incidents I think should if caught on body camera be made available to the public although I do make an exception for body camera footage filmed in an area where you have a expectation of privacy. So I don't think for example if a SWAT team bus into my home and they're wearing body cameras that Adam should be able to request that footage. My living room reveals it could reveal my political beliefs, my religious beliefs past my sexual orientation but I think that I and my attorney at the very least should be able to have access to that footage. And so I think that balances the desire for increased accountability and transparency with privacy. And we're just generally probably going to get used to this in the sense of it'll be an expectation I think as these get more and more used it'll just be an expectation that the cops are filming you right now and people are being filmed by cops. Yeah and there are also concerns about people who are not the target for example or the subject. So it's not hard to imagine a situation where a fight breaks out at a restaurant for example or a bar and police are called. Now you don't have a very strong expectation of privacy in a bar. So police arrive and they arrest the guy who started the fight. But the body camera footage which is released to the public shows a well-known businessman treating a woman who is not his wife to a drink. And he was not involved in the bar brawl at all and yet the body camera footage is showing to anyone on YouTube who's interested that he was behaving in an inappropriate manner. But I think that there is an interesting point to be made about how this technology will change, how we even think about our expectations of privacy and what we can expect to be really private. How is that situation different from what we're long used to which is the cops can take photographs or they can interview people at the scene or require people to testify in court or the evidence from all of those methods of gathering gets released. So this is just I mean is this fundamentally different from the other you know we happen to see you at the bar and so now it's known or we happen to take pictures and now it's known. Yeah so there's no fundamental difference without body cameras. Officer Smith would say I came to the bar and I arrested John Doe after a complaint from blah blah and the only difference here is of course even if the officer is taking photos of the suspect that body cameras are just capturing way more data than we've been used to. Before we move on to drones I think you were talking about privacy and then with Adam we're talking about stingrays which is also of course privacy and the Fourth Amendment as it's been alluded to but so maybe we can take a little bit of a little segue to talk about the Fourth Amendment as it relates to these kind of privacy issues themselves. The body cameras are of course for accountability and things like this but the stingrays are getting into places that are private or most of us think that they're private. How does the Fourth Amendment even historically have dealt with these kind of technologies that could invade their privacy of individuals? Well I would say that our jurisprudence over the past 50 years or so has taken our conception of privacy as a jurisprudential matter and kind of got off track and left us in a very poor position to argue constitutionally for the kinds of policies that will protect our privacy from this kind of technology. So people may be familiar they have heard it discussed here this reasonable expectation of privacy is one of the standards that the Supreme Court uses that if you're expressing yourself in a way or just behaving in a location where you do not have what is considered a reasonable expectation of privacy in your behavior it is not a Fourth Amendment search even for the government. What does that mean when you say it's not a Fourth Amendment search? It doesn't implicate your constitutional rights so the police are allowed to do this without getting a warrant without establishing probable cause. A corollary of that is what's known as the third party doctrine which is very relevant to things like the Stingray device which is any information that you voluntarily convey to a third party you are essentially relinquishing your expectation of privacy in that information. When these rulings were down in the 60s and 70s that wasn't such a big problem but now that almost everyone has a device in their pocket that is constantly beaming information to third parties namely their cell phone carrier this information is just floating around and police departments that have been asked to justify their use of Stingray devices have cited the third party doctrine to say look you are voluntarily conveying the data that your cell phone sends out and therefore we don't need a warrant to get it. That seems messed up when it comes to Stingray because the government has made themselves the third party but in a weird way they become the cell phone tower. They put themselves in the middle. In the middle of it yeah it's interesting. Does this just mean though that we need to revise down our expectations of privacy. The world is constantly changing technology is constantly changing we all are doing things voluntarily with our data that would have been unimaginable decades or centuries ago and so what's wrong with just saying look we've got this tech it's not it's out there you know it's out there I mean Stingray has been kept secret but you were able to describe them in relative detail. This is just a changing world and it may it may take some time for our expectations to catch up but there's nothing wrong with that. If you think that the reasonable expectation of privacy and the third party doctrine are the proper analytical framework depending what our rights are then yeah I think that's correct as the government does more of this as more of our lives are open to public scrutiny and voluntarily conveyed to the internet to the series of tubes yeah I think our expectation of privacy has diminished and will continue to diminish I don't think that answers necessarily the privacy interest question or the constitutional question maybe we should be asking whether a reasonable expectation of privacy is the proper question to ask when we're discussing whether the government should have access to this information or be able to use it against you in court. I don't have it in front of me but Justice Sotomayor and her Jones concurrence wrote I'm paraphrasing here but she did write on this point saying you know I would ask do people reasonably expect that all this data can be is being gathered and used and what you can find out people is astonishing it's far more revealing than I think a lot of people realize I mean we sitting here at K.O. know about these tools and know that this is how cell phones work and everything but I don't know if most Americans actually do think that my shopping habits or whether I'm cheating on my wife or not or what kind of food I like if all of that is actually willingly exposed to the government and that they should be able to analyze it at whim is it I mean I'm going to ask the cliched question but I think it's the cliched for the reason is it that big of concern for people who are not criminals I mean I think most people most people don't deal with the cops generally in their lives they don't run into them that much except for traffic violations they don't have a record they've never spent time in jail and so they don't have a record about it so we're trying to protect all these privacy rights but ultimately speaking if you're not even going to getting into the police ambit meaning you're not having them raiding your house or things like this then they're not going to be seeing stuff so I mean I'm not terribly concerned I'm not really in the police ambit and I'm not terribly concerned right now about stingrays above my house or I'm not terribly concerned about them finding things out so this is if you're not doing anything wrong important to catch criminals than to protect this kind of privacy that maybe people don't value as much as we think they do well you might not be doing anything on the government's radar now but you could be I think at the moment law enforcement and certainly our intelligence agencies are very heavily focused on Islamic terrorism and because I'm not a Muslim I also like Trevor don't really spend much time thinking am I under surveillance or anything like that but I don't know a president for 16 years who avowedly hates libertarians and is not a fan of a fan of us and thinks that we are a threat to national security then I would begin to worry it's true you have nothing to fear unless you're doing anything wrong but what the government considers wrong can change quickly and dramatically I've spent years trying to get under government surveillance so I'm even coming at it from a different perspective but I think I think you're right that I think the average person on the street thinks that I run into this all the time and I think people who work in criminal justice especially about police searches and things like that run into that attitude all the time but it's always wrong people don't know what the law is people don't know whether they're doing something the government frowns upon and I will pull the Glenn Greenwald trick which is to ask anyone who doesn't really think they have anything to hide just send me their email accounts and passwords and I give you my word your account I'll just look through your email for a while I think people if you drill down a little bit people do care more about their privacy than I think they let on just at that high level I'm not doing anything wrong attitude well but I mean so I wouldn't want to give you my search history but police officers are the good guys agents of the state the same way that like I tell my doctor things that I wouldn't want to make public but that doesn't mean that doctor possessing that knowledge well I think the history of government surveillance should give you pause on this that the instinct is to think that law enforcement is here to protect us and they are the good guys and to a large extent that is true but the last hundred years or so have provided countless pieces of evidence to the contrary listeners should check out our colleague Patrick Eddington's timeline of surveillance in this country everyone from feminist socialists the ACLU civil rights leaders the number of people that have been put under surveillance in this country is by no means limited to Islamic terrorists well I think it's kind of terrifying too as Adam said that you probably have committed quite a number of felonies without knowing it and so that being the case if your life is an open book to the police and to prosecutors the only thing that's actually protecting you is you really want to take the time to prosecute but if they decided they wanted to pretty much everything could be there for them to do that successfully which is a pretty weak read upon which to rest freedom but I wanted to get back into the question could the technology we get into drones but before we get into drones or as we get into drones the question of how these new technologies challenge old fourth amendment doctrine brought up the third party thing but there's also when it comes to drones these technologies are moving a little bit faster than the fourth amendment doctrine but the point of the reasonableization of privacy element of fourth amendment is so it actually because the reasonable attention to privacy changes with the times so it tries to adjust the fourth amendment to different technologies that are going on so maybe it works just fine for that yeah I think I could discuss a few cases that show that not to be the case and while it is the case at the airport does catch up with technology it's always playing catch up and technology always moves faster and sometimes when it does eventually catch up the finding its rulings are sometimes unsatisfactory and this like this brings me back to the expectation of privacy test which I think is most important when we're talking about drones which can be used for police surveillance because the closest analogy we have to drones is airplanes really when it comes to the kind of tools that police might use to helicopter and to bring this back to the reasonable expectation of privacy test there's a case that's very relevant to this called California versus Serrano which was in the 80s and police officers received an anonymous tip that Dante Serrano was growing marijuana in his backyard and Dante Serrano actually had a six foot and ten foot fence around his property so his backyard couldn't be observed from the public sidewalk so the police with outer warrant took to the air in an airplane spotted marijuana in Serrano's backyard and got an arrest and Serrano sued saying that this was a violation of his Fourth Amendment rights and the Supreme Court ruled that actually no you don't have a reasonable expectation of privacy to the contents of your backyard even if you have a ten foot fence around your backyard and then a few years later in another case called Florida v. Riley which is very similar police again looking for marijuana took to a helicopter at 400 feet and observed marijuana in Riley's greenhouse and I like the Florida v. Riley case in particular because it includes a dissent from Justice Brennan that includes an amazing I think piece of prescience and it's worth keeping in mind that this was written in 1989 because in Riley the plurality said this was not a Fourth Amendment violation but Brennan wrote imagine a helicopter capable of hovering just above an enclosed courtyard or patio without generating any noise, wind or dust at all and for good measure without posing any threat of injury suppose the police employed this miraculous tool to discover not only what crops people were growing in their greenhouses but also what books they were reading who their dinner guests were suppose finally that the FAA regulations remained unchanged so that the police were undeniably where they had a right to be with today's plurality continue to assert that the right of the people to be secure in their person's houses, churches and seizures was not infringed by such surveillance and these miraculous tools that Brennan is talking about are now available not just to law enforcement but to us for only a couple hundred dollars and drones are much cheaper than helicopters and airplanes and they're much easier to use and it won't be a surprise to any of us that police continue to use them in the future but Riley and Seralo do offer rather unsatisfying precedents at this time isn't this again just expectation to be everywhere and so what that means is just put a yeah I mean you know grow it somewhere that can't be seen yeah so well we might say that Riley and Seralo were not wise Marijuana growers and maybe they should have done it inside but I think what I have spoken to Adam about this before off-mic that there's something very troublesome and perhaps wrong about this reasonable expectation of privacy test because as technology improves the expectation of privacy seems to diminish and the problem here fundamentally is that if the fourth amendment is supposed to protect I mean it's actually mostly a property amendment but if we're supposed to find the privacy rights somewhere in the shelter of the fourth amendment it seems to just you lose a lot of what it's supposed to be for which is to protect this thing that we call privacy this is a little bit off topic but one of the things that's struck me and is a recurring theme so when you are doing say taking a course on fourth amendment in law school and so you're reading all of these cases there's a lot of laws on the books and a lot of ways to break the law but the common theme in basically every case that seems to diminish our fourth amendment protection is drugs so all the ones we've mentioned today I think have been drug related and so what is there something special about drugs that causes it to cause these rollbacks or to be the common theme in all of these cases. So I would suggest there is a giant smoking crater in our fourth amendment jurisprudence where the drug war landed and the war on terror is not far behind as far as the effects but I think there was a determination among judges that because of the way the drug because of the nature of drugs of contraband how easy they are to dispose of how easy it is to engage in this illegal behavior outside the purview of law enforcement and the privacy of your own home it would be very difficult to prosecute the war on drugs if police could not look inside your home could not look inside your backyard and I do think that even like your bodily cavities so I do think at some point there may perhaps subconsciously there was a decision made that the administrative ease of fighting the drug war and preventing the destruction of evidence which is how we get to things like no knock warrants and SWAT raids that prosecuting the drug war was more important than maintaining a rigorous protection of our fourth amendment values. So yes I think that the drug war has twisted our jurisprudence in a very nasty way for privacy rights. I agree but I want to offer some hope in this conversation because while I think the conversation so far has really highlighted some of the problems with the expectation of privacy test there's nothing stopping states from going above and beyond the floor said by the Supreme Court and actually Florida law explicitly defines expectation of privacy to take into account aerial surveillance and says you have an expectation of privacy in the contents of your property that are observable from ground level basically and there's I think a bill in New Hampshire that does something similar and while I was doing work on drones Adam reminded me that Justice Alito in a case actually says explicitly says you don't rely on the blunt instrument of the fourth amendment to fix this technology meets privacy problem legislatures can deal with this. The drug war point is interesting because it is I mean as we imagine the future here and there's a couple things that are even more terrifying things I'm sure we can't even imagine right now but these drones can be the size of a little bug I mean they can be silent like so you could probably I guess under current jurisprudence flying it into a house would probably violate basic questions but flying it around your windows and things like that but the interesting question is if you weren't finding a drug war what would you possibly be using such a drone I mean you could imagine only a few pretty highly dangerous situations that then the drone would be useful to find like weapons and things like this and so yes without the drug war you could imagine cops were like we have this drone but we don't even know what to do with it we look for stolen goods and guns a lot of drone technologies out there what kind of stuff is coming up and what other kind of concerns or even aside from because you talked about facial recognition in drones and things like this we've talked off Mike about this so it seems that this could get pretty scary pretty quickly yeah well some of the stuff that already exists is rather frightening so you've just mentioned very small drones and those do exist and I've seen footage from labs of a couple dozen drones with surveillance devices are rather frightening to comprehend though we also are finding that the military as Adam spoke earlier about the military is developed technology that could perhaps in the future be used for domestic law enforcement there is a piece of equipment called Argus which is named after the mythical Greek 100-eyed guard which is capable of putting a medium sized city basically under constant surveillance and from a height of tens of thousands of feet can zoom in to less than a foot of detail it automatically tracks moving objects and you can I suppose with expectation of privacy jurisprudence anyone who's outside can't reasonably expect that what they're doing is private I'm not aware of that kind of surveillance being used by domestic law enforcement but it's very easy for listeners to find the image of an engineer showing off this piece of technology using a Quantico Virginia as the example point so it's certainly been used at least at least once and I think that kind of technology is only going to improve that you will have areas the size of cities that can be surveilled in very high detail with only one piece of equipment and miniature drones pose a whole depending on how small they can get but it's not inconceivable that in not the two distant future maybe 10 years, 20 years that you'll have drones the size of insects that will be able to fly around with a whole range of surveillance equipment so we've spoken briefly about facial recognition software and I like talking to lawyers here at Kato about that because this question of whether you have a reasonable expectation of privacy to the details of your face is a rather unique recognition all these kind of surveillance tools how you walk how you walk so everyone has a unique gate so if you have the gate data of someone you could potentially I suppose program that into a camera that is looking out for someone with that unique gate how much can we so one of the heartening things that we've seen in response to specifically the Snowden disclosures is the technology industry fighting back and doing what it can to close the opportunities for the government to surveil so making encryption standard and locking things down more how much can we I guess fight an arms race with the government on a lot of this stuff simply through improving tech like these stingrays could those be defeated by Apple releasing the next iPhone with a different cell technology that is not susceptible to them so my understanding is if they if they're using the current cell phone cell network infrastructure that they're susceptible to these devices I don't know enough about the tech to tell you whether it would be possible to design around it I think one of the problems there though is and it's kind of the irony of this whole idea especially about the secrecy is in a situation like that the people who take those measures to protect themselves are the people who have a vested interest in frustrating this surveillance but the people who the people who don't or don't care don't know how or don't feel like making the effort those are the people who are most at risk those are the people who are innocent and so those are the people who still even if there is this kind of tech arms race to frustrate the surveillance state the people who are most at risk and most likely to be harmed aren't likely to really benefit from that using browser anonymizers like the tour network or things this is not something that the average person in America does despite the fact it's relatively easy to do it's just not like what Trevor mentioned earlier about most people don't think they have anything to worry about and they don't fully understand the implications of what's going on so even if there were these measures that we could use it's not clear that the average American would be interested in using them and we are griping about the government's data collection and privacy invasions and all of these ways is the why aren't you concerned with corporate America come back so we say like it's not okay we don't want all of this footage being gathered up by police departments because there's huge privacy concerns there and we don't want them sucking down all the information about our cell phones or being able to live stream my life. We don't have any problem with Facebook which is gathering extraordinary amounts of highly identifiable data on us and so on the one hand should we be concerned about that kind of data collection too which is becoming more pervasive and if we are should we as we push for greater fourth amendment protections should we also be pushing for greater protections, regulations of our privacy data for private entities. Well so I think you raise an interesting concern because while we've spoken about drones in the law enforcement context it's not inconceivable that there will one day be delivery drones and what if Amazon drones have all this kind of stuff on it maybe they will have cameras maybe they won't Google Earth or Google I think whenever people say this my first the first thought that occurs to me is but you know Facebook can't arrest me and the stuff I disclose is a large part voluntary although privacy advocates will talk about you know logging out of Facebook and Twitter and all these other things as often as you can and I think you might see a shift in what people consider private without there being too much worry they'll put up too many photos of their vacation and it's widely available to everyone the people like me I'm rather selective when it comes to Facebook then you've got Adam here who puts everything on Facebook to the public but I ultimately though I think the intention is different I'm reminded of that story about a father getting furious at Target because his 16 year old teenage daughter had been sent advertisements for pregnancy tests or young young mother products and it turns out that Target had figured out that you know she was probably pregnant based on buying patterns that stuff is all you know it might strike people as spooky but I think ultimately Target and Facebook are not as threatening as law enforcement and to bolster that point I'll use the doctor example that you used earlier Aaron I share information with my doctor but there's an understanding and a trust that my doctor is trying to help me with that information and we can go back and forth I suppose about whether things like marketing algorithms and the collection of data from commercial interest is meant to help us or help us get things we want but it's very clear historically that when the government is looking through your emails or it's looking through your mail or it's listening to your phone calls it is never for your benefit it's protected from terrorism well it's not when they're listening to my phone calls beforehand you weren't a terrorist but that would be easy but so these effort to agree with Matthew about the intent the effort of the government to surveil everything I do and say and communicate to people is to me a fundamentally antagonistic interaction and I agree with Matthew Mark Zuckerberg doesn't have an army he doesn't have prisons he can throw me and the data that he's collecting is not going to be used against me to put me away or to infringe on my liberty what about the the third party doctrine that you mentioned is it a significant concern that Facebook has all this data if the government can just ask for it right so if you if you put that information out there publicly then yes then that's where the third party doctrine comes in to say well look you put this out there even there I do think there is a concern and I think the doctrine could use some tuning simple we have for instance automated license plate and process thousands of license plates in a very short time as the police car is driving down the street people may have seen these mounted on the trunks of police cars facing diagonally out but so everyone would agree that your license plate you don't have a reasonable expectation of privacy in your license plate that's the whole point of it but still a cop standing on the street could not possibly process that information or really do anything with it meanwhile if they take these to a political rally or a church or a mosque and they scan the license plate of everyone there and they record it and they retain this data that seems like it's a fundamentally different situation despite the fact that you don't have a reasonable expectation of privacy so I think the mass aggregation of data even publicly release data is still something we should be concerned about and guard against when these technologies and other ones like I said we can't even name micro drones face recognition or nano drones whatever should we expect them on some level to be abused? Well there's been law enforcement abuse of most other technology so I don't see why there necessarily would be an exception sure but this is why you know at think tanks like this we propose policies and procedures that should be in place I think absent absent regulation tools like body cameras are a tool for totalitarianism right and are quite frightening but with the right policies in place they are a great tool for increasing accountability and law enforcement and figuring out what's really going on it's great for researchers and activists and things like that but you know it's silly to talk about technology as I guess morally neutral but these devices are made good or bad by the rules that govern them not the technology intrinsic in and of itself and yeah and it would probably be naive to think that we're going to stack up all the stingrays and throw them in the ocean I mean that's not realistic that's of course law enforcement technology is going to advance but there's a great difference between advanced technology that where there is accountability where there's transparency where everybody knows what's going on and what you're capable of and law enforcement technology that's being used in abject secrecy where they're being dishonest with judges with defense attorneys with the public we have separated powers we have checks and balances not because police or the government are bad people but because they're people and we need these checks to hold people accountable and where the police are frustrating these checks to do things in secret or outside the oversight of the public or the legislatures that's a problem and we should expect abuse because that's what happens in secret I do want to briefly add though that there are reasons to be thankful that this technology is around it's not hard at all to imagine that drones would be great with a missing child in a national park or the very good at coordinating firefighting efforts potentially or that sting rays might be useful to help find kidnapped children if the child has a phone obviously so while here I'm sitting at Cato I'm constantly worried about the potential abuses I think the potential benefits should also not be ignored thanks for listening if you enjoy free thoughts please take a moment to rate us on iTunes free thoughts is produced by Mark McDaniel and Evan Banks to learn more about libertarianism visit us on the web at www.libertarianism.org