Warrantless Surveillance

The Problem

In the United States, we are protected against unreasonable searches and seizures. The Fourth Amendment requires that the government obtain a warrant based on probable cause to conduct a search or seizure. But as 21st century surveillance technology evolves, we need to update laws and policies to make sure they are keeping pace with today’s technology and protecting our constitutional rights.

In recent years, there have been countless instances in which law enforcement officials circumvented warrant requirements by buying cell phone data from private companies. These companies offer tools and techniques such as cell-site simulators (coined “stingrays”) and cell tower dumps to snag data on cell phones over a radius of several blocks, taking information from thousands of people at once without their knowledge or consent. Law enforcement officials can access this sensitive data without a warrant or a fair attempt to gather information through less intrusive investigative methods. Moreover, law enforcement officials are not required to redact any private information unrelated to their investigations or their target.

Law enforcement units around the country also use face recognition technology to attempt to identify suspects far more often than the public thinks. Since the technology is so new, there are no guidelines in place about its use — there have even been cases where officers use face recognition technology without the knowledge of their department. What’s more, the companies that sell this technology (like Clearview AI) greatly exaggerate its accuracy, characterizing the software as a nearly flawless super-tool. In reality, face recognition often misidentifies innocent people, leading to improper arrests and even jail time. Some face recognition software is more likely to misidentify women and people of color. There is no easy solution to this problem — if face recognition software does get more accurate, it will increasingly violate Americans’ privacy. Do we want the government to be able to track us wherever we go, catalog everyone we interact with, and listen in on every sensitive activity we engage in?

The Solution

In order to protect our constitutional rights, we need to bring our laws and policies up to speed on 21st century surveillance technology. We need to

• Explicitly ban law enforcement from buying cell phone data from private companies as a way to circumvent the Fourth Amendment;
• Establish a “super-warrant” requirement for stingrays that requires higher levels of proof and necessity when government officials want to track a single suspect’s cell phone data; and
• Establish safeguards on the use of facial recognition that stop harmful misidentifications and prevent pervasive surveillance and abuse.