Unwarranted: Policing Without Permission

Unwarranted: Policing Without Permission

by Barry Friedman


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Product Details

ISBN-13: 9780374280451
Publisher: Farrar, Straus and Giroux
Publication date: 02/21/2017
Pages: 448
Product dimensions: 6.30(w) x 9.10(h) x 1.50(d)

About the Author

Barry Friedman holds the Jacob D. Fuchsberg Chair at the New York University School of Law. He is a constitutional lawyer and has litigated cases involving abortion, the death penalty, and free speech. He lives in New York City.

Read an Excerpt


Policing Without Permission

By Barry Friedman

Farrar, Straus and Giroux

Copyright © 2017 Barry Friedman
All rights reserved.
ISBN: 978-0-374-71090-3



The public can't participate in setting policing policy if people don't know what is going on. It's as simple as that. If anything should be obvious, it is that transparency is essential to democratic governance. Yet a veil of secrecy has shrouded policing for much of its history. Some of this is necessary, but much of it is habit. If democratic policing is to be a reality, we need to start by sorting out when secrecy is appropriate in policing, and when the veil must drop.


February 11, 2014, was "The Day We Fight Back." Around the globe, a raft of consumer-friendly Internet companies, like Reddit, Tumblr, and Mozilla, and groups such as the Electronic Frontier Foundation, Human Rights Watch, and Amnesty International, sponsored a loosely knit series of events against mass surveillance. Chicago's event — a march starting at Daley Plaza, in Chicago's Loop, and ending in a dinner at Timothy O'Toole's Pub — was hosted by Restore the Fourth Chicago, "a non-partisan political group of concerned individuals dedicated to restoring our Fourth Amendment rights."

Among those in attendance in Chicago was Freddy Martinez. Martinez, a youthful techie with a degree in physics, had developed a preoccupation with a law enforcement device he'd read about, one that scoops up cell phone transmissions. The device works by tricking cell phones into thinking it is a cell tower. The cell phones then ping it, revealing their unique identity numbers — their IMSI, or international mobile subscriber identity — as well as their locations.

Although it goes by many names — including cell site simulator, or IMSI catcher — the device is mostly called a "Stingray." It's one of many brands made for law enforcement by the Harris Corporation, a large defense contractor. Stingrays can even capture content from cell phones — effectively wiretapping them. It is indiscriminate, though: when being used, a Stingray captures the data of all cell phones in the vicinity.

Martinez's interest was part technical and part political. He had come to suspect that the Chicago police were using the device to conduct mass surveillance, and in particular to spy on peaceful protests. He was hardly alone in his suspicion. Now-public documents reveal the Miami police used a Stingray during demonstrations over the proposed Free Trade Area of the Americas. A Christian Science Monitor story suggested the same was occurring in Chicago. Martinez had begun to wonder whether, by fighting fire with technology fire, the Stingray could be defeated.

While Martinez was struggling with the technical problem of countering the Stingray, a friend suggested filing a Freedom of Information request. And so he shot off an email to the Chicago Police Department (CPD): "I am seeking records pertaining to the purchase or reception of any IMSI catchers, commonly known as Stingrays (a trademark of Harris Corporation)."

Eventually Martinez, aided by his attorney Matt Topic, sued the City of Chicago for the information. In return they got a handful of IMSI-catcher invoices. As the local CBS affiliate reported, "The Chicago Police Department has finally acknowledged that it had purchased cellphone interceptor devices back in 2008." The story noted that when CBS asked the very same question ten months earlier the CPD had "denied it."

Martinez and Topic filed more requests, trying to get answers to a host of important questions about the use of Stingray devices. What sorts of surveillance were they being used for? Do the police get warrants, or other permission from judges, first? Are judges being told the truth about what devices the police are using? Is the data that is captured stored somewhere? How is that data being used? Who has access to it? Are there protocols governing how and when a Stingray can be used? Has the CPD done any analysis of whether using a Stingray is even constitutional?

It was like pulling teeth. The CPD hired a fancy law firm and quickly spent over $100,000 fighting off the requests. The deflections came shotgun style: No responsive documents exist. If they do exist, they are sealed from public view by court order. In any event, the information is a national security secret that is protected by federal law. Besides, it's a trade secret. And so on.

The CPD's responses raised more questions than they answered. Court records do get sealed away from the public, but then they regularly get unsealed to respond to FOIA requests when the events are over — so why not these records? How is it a trade secret when Harris had filed public patent documents with much of the requested information? Given major constitutional questions about Stingray use, why was there no legal opinion in place?

But the really odd thing was this: while the CPD was playing "I've got a secret" with Martinez and Topic, news about the use of Stingrays by law enforcement was popping up all over the country. Like mushrooms after a downpour. The secret they were struggling to keep was hardly a secret at all.

As details emerged, things got more curious still. The Anaheim Police Department released a letter on Stingrays (basically saying they couldn't say anything). Journalists noticed that Anaheim's letter looked an awful lot like one released in San Diego. And in Gwinnet County, Georgia, too, for that matter. In Martinez's case, the CPD offered up an affidavit of an FBI agent named Morrison about why this all must be kept under wraps. A Google search revealed Morrison was filing similar affidavits throughout the country.

It turns out that for at least a decade the federal government had been subsidizing state and local law enforcement purchases of Stingrays — but with that money came a big catch: law enforcement could not divulge anything about the device. To anyone: to judges, to public officials, in court, under oath, nothing. It was in the contract with the Harris Corporation. And just to make sure matters were clear, the FBI made local law enforcement sign nondisclosure agreements (NDAs) as well. As the story leaked out, it became obvious the FBI was orchestrating a campaign of noninformation.

Policing officials argue that this game of cat-and-mouse makes us safer. They can't answer questions about Stingray use because "much like a jigsaw puzzle, each detail may aid in piecing together other bits of information" on what the government is doing. It would, as the FBI stated in a prepared press release to be used by local law enforcement, "provid[e] criminal elements with the ability to circumvent these devices." Not everyone sees it that way. "It's ridiculous," argues Hanni Fakhoury, an attorney at the Electronic Frontier Foundation. "It's secrecy for the sake of secrecy. It's not actually a public safety issue now."


Stingrays indisputably have a role to play in law enforcement. One St. Louis judge, who does seem troubled by the "broad" way law enforcement is using them today, says they nonetheless are doing "miracle work." He had a case where a Stingray was used to catch a murderer. The FBI claims the technology is used in a variety of contexts: "It's how we find killers, it's how we find kidnappers, it's how we find drug dealers, it's how we find missing children, it's how we find pedophiles."

But like many things in life, the question is whether all this sneaking around is worth the costs. Or even whether the secrecy surrounding the use of Stingrays is necessary. And it is at that level that Freddy Martinez and Matt Topic aren't buying it.

For one thing, Martinez and Topic are leery of how the Stingrays are being deployed, and in particular of whether the police are spying on peaceful, lawful protesters. The Chicago Police Department has a bad history this way. For decades its "Red Squad" — to quote a rather conservative judge — "spied on, infiltrated, and harassed a wide variety of political groups," including those that "were not only lawful ... but also harmless." Martinez and Topic both worry the CPD is using Stingray technology to build up a database of protesters. "We just don't know," Topic says. "They aren't disclosing any information."

Even if the Stingray is used only for perfectly legitimate criminal cases, Topic and Martinez had plenty of reason to suspect the police were not being straight with judges. To conduct most electronic surveillance, the government needs some sort of a court order — a warrant, even. Given the secrecy provisions in the contract with the Harris Corporation and the FBI's nondisclosure agreement, were cops accurately explaining to judges what they wanted to do? In Charlotte, North Carolina, the judges themselves learned the answer was no after the local media obtained some documents through a FOIA request. It turned out that the Charlotte-Mecklenburg Police Department (CMPD) had had a Stingray since 2006, yet the police didn't even bother to go to court for an order until 2010. Then, when they did go to court — between 2010 and 2014 — they didn't come clean with the judges about what they were doing. Court records suggest that a Stingray may have been used in more than five hundred cases, but law enforcement still didn't quite say so. (Since this all became public, the Charlotte Observer reported, the CMPD has "revised" its court filings to — these are the CMPD's words — "improve the effectiveness of the process and provide greater transparency.")

Secrecy has threatened to overturn criminal convictions. If judges granted orders without accurate information — or if people were spied on unconstitutionally without any court order at all — then anything the police discovered as a result had to be thrown out at trial. The Charlotte prosecutor has had to go through those five hundred files to ensure nothing in them will require a reversal of a conviction. "That is our fervent hope," said the deputy district attorney. A similar situation confronts prosecutors in Tacoma, Washington.

It is also clear that because of the demand for secrecy, some defendants are getting off easy — or even scot-free. Under the nondisclosure agreements, the FBI has the right to force local prosecutors to drop a case instead of revealing evidence of Stingray usage. The Bureau claims it's never done this, but the evidence is that, acting on those NDAs, cases have been dropped or generous plea bargains given to defendants. In Tallahassee, Florida, a couple of guys toting BB guns stole a cell phone and $130 worth of pot. They were quickly apprehended. When a defense lawyer asked how the heck the police caught their clients so quickly, the witness — a sergeant named Corbitt — claimed it was through a subscription database. Can't be, pointed out the lawyers, it was a prepaid "burner" phone. Under pressure, Corbitt admitted, "We do have specific equipment that allows us to ... direction find on a handset if necessary." When pressed yet further, he clammed up "[d]ue to a nondisclosure agreement with the FBI." Result: for a crime that carries a minimum of four years in prison, the defendants walked with six months' probation.

Then there's the loss of trust in law enforcement generally. Matt Topic says of the faux-secrecy, "This is something that harms the credibility of law enforcement as they come in asking for the benefit of the doubt on other issues." Some judges have been apoplectic. In Baltimore — where records show a Stingray was used more than four thousand times between 2007 and 2015 — a judge threatened the police with contempt if they did not detail the method of tracking cell phones. The prosecutors elected to do without the evidence. Since then, a Maryland appellate court has ruled that police are required to have probable cause and a warrant before they can track a phone with a Stingray. In the Tallahassee case, stymied by the NDA, defense counsel subpoenaed the device. The government argued it was exempt from Florida's open records statute. Judge Frank Sheffield demanded from the bench: "What right does law enforcement have to hide behind the rules and listen in and take people's information like the NSA?"

But beyond all this there is something even more fundamental at risk: democratic governance itself. How can we govern something we don't know about? When shown a copy of the NDA in Florida, Bruce Jacob — the former dean of Florida's Stetson Law School — said, "It reminds me of what happens in totalitarian countries: you don't know what the hell is going on." In a FOIA suit brought by the ACLU in Erie County, New York, the judge referred to the secret agreements to dismiss criminal prosecutions when the FBI snapped its fingers, saying, "If that is not an instruction that affects the public, nothing is."

Concern for democratic accountability, more than anything else, is what drives Martinez and Topic. It turns out Chicago actually has had Stingrays since 2005. Martinez worries that by the time we discuss this, it will be a fait accompli. "We should have had the discussion ten years ago." Topic insists, even if Stingray use is constitutional, "I reject the idea that you can use it without discussion."

Just as Stingrays can play a real role in law enforcement, secrecy has its place too. The committed people who work to keep us safe do, on some occasions, just need us to trust them. To leave them to do their job. The problem, as Matt Topic would say, is where to draw the line.


Because of the muddled history of policing in this country, the question of how much autonomy law enforcement needs may seem tougher than it actually is. We've simply gotten into the bad habit of granting law enforcement more space than it requires.

Our Constitution does an inadequate job of regulating the police in large part because at the time it was written no one anticipated the sort of organized police forces we have today. The issues the Framers had with "policing" — and some were serious enough to be precipitating factors in the American Revolution, and to lead to ratification of the Fourth Amendment — were mostly about taxes and tax collection.

Early Americans didn't like being policed: law enforcement in the eighteenth century was, at best, a loose collection of sheriffs, constables, and night watchmen. They often lacked the most basic tools to do their job, as was evident in the case of the hapless Sheriff Hermanus Schuyler of Albany. A court fined Schuyler twenty pounds for failing to arrest two trespassers, though Schuyler kept trying to explain that the fellows really were quite dangerous. Proving Schuyler's point, court records indicate that the very day the fine was imposed, one of the men was sought for "assaulting and wounding the Sheriff of Albany, Hermanus Schuyler." (Poor Schulyer was then ordered to arrest him for that as well.) The night watch — a civic duty one could buy one's way out of in some jurisdictions — was the butt of many jokes. The New York Gazette of 1757 dubbed its watch a "[p]arcel of idle, drunken, vigilant Snorers, who never quelled any nocturnal Tumult in their lives ... as ready to join in a Burglary as any Thief in Christendom." A half century later, the Louisiana Gazette said of the watch, "It is like setting wolves to guard the sheep."

By the mid-1800s, though, civic disorder — or perceptions of it — led Americans to overcome their worries about "absolute police despotism." And so it "became necessary" to create urban forces, as an 1833 report explained, to have "in every large town ... several intelligent and experienced men devoting their time and skill to the pursuit and arrest of ... Robbers, housebreakers, pickpockets and other felons." The model — only loosely followed here in the United States — was London's police force, which was created in 1829 under the guidance of Sir Robert Peel (hence the name "bobbies").

These early forces, though, were little better than the night watch. Police were given a uniform, a club, handcuffs, and a whistle, and sent out to patrol for crime. (Guns came later.) They were ill-paid, and so it was understandable if they took the chance to slip off for a drink or a little nap. When Theodore Roosevelt became one of the commissioners of the New York police force in 1895, he went out to observe the troops and was startled to find them "in restaurants, asleep, or otherwise away from their posts." One late night, Roosevelt even found an officer "asleep on a butter-tub in the middle of the sidewalk, his snoring loud enough to be heard across the street."

Nineteenth-century cops could be incompetent and brutal both. Philadelphia's first marshal of the city police had to let one-third of the force go only a year into the job, deeming his own troops "worthless, drunken, and totally unfit." Almost twenty-five years later, an 1872 Philadelphia Ledger article described a certain type of officer, "the men who upon merest whim, or the slightest show of resistance, fly into a gust of passion, pull out their revolver and make a serious affray out of what might have passed off as an unimportant incident."


Excerpted from Unwarranted by Barry Friedman. Copyright © 2017 Barry Friedman. Excerpted by permission of Farrar, Straus and Giroux.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents

Preface ix

Introduction: The Problems of Policing 3

Part I Democratic Policing

1 Policing in Secret 29

2 Legislatures That Won't Legislate 51

3 Courts That Can't Judge 73

4 Fostering Democratic Policing 92

Part II Constitutional Policing

5 Searches Without Warrant 117

6 Searches Without Probable Cause 140

7 General Searches 161

8 Discriminatory Searches 185

Part III Twenty-First-Century Policing

9 Surveillance Technology 211

10 Third-Party Information and the Cloud 234

11 Government Databases 259

12 Counterterrorism and National Security 282

Conclusion: The Challenges of Democratic Policing 307

Epilogue 323

Notes 329

Acknowledgments 413

Index 419

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