Understanding and resisting surveillance with notes from ‘Habeas Data’

Introduction

‘Habeas Data: Privacy vs. the Rise of Surveillance Tech’ by Cyrus Farivar is an important book to read in order to understand the importance of resisting surveillance. Law enforcement is a huge hinderance to people’s privacy, as they have a long history of breaking the boundaries of the law in order to nail their suspects. Cyrus Farivar shows how surveillance has changed and escalated through history. From Katz v. United States to Riley v. California, it is shown how law enforcement’s actions would have been allowed if they had simply sought a warrant. Each time they found a way to breach their suspects’ privacy. From hidden microphones to infrared cameras, law enforcement does everything possible to expand surveillance upon anyone they deem suspects. They don’t even respect cellular privacy either.

Case Summaries:

• Katz v. United States established the key phrase: “Reasonable expectation of privacy.” It is shorthand for determining whether something is considered to be a search under the Fourth Amendment.
• In Silverman v. United States, the Supreme Court ruled that while the agents had violated the Fourth Amendment, it wasn’t because they had trespassed into the home without a warrant.
• Smith v. Maryland took place during the period of escalating telephone harassment and stalking. PRTT, pen registers and trap and trace capture both incoming and outcoming calls. Installing a pen register on McDonough’s (the victim) line was vital to catching her stalker, Michael Lee Smith.
• The 1761 case with lawyer James Otis Jr.: James represented dozens of Boston merchants who argued that Charles Paxton violated their rights using writs of assistance. The five-hour argument from Otis, “everyone with this write may be a tyrant.” He argued that the freedom of one’s house is an essential branch of English liberty, and that the write being declared illegal would dismantle this privacy. “Bare suspicion without oath is sufficient.” He lost the case, yet his argument had an influence then 26-year-old John Adams.

Telephone Wiretaps – Olmstead v. United States (1928)

Seattle police officer Roy Olmstead became a bootlegger. His phoned was tapped and he was arrested despite no warrant being issued for the tap. The court decided that the lack of a warrant during the wiretapped didn’t matter. The majority opinion in a 5-4 decision via Chief Justice William Howard Taft was that the government had not violated Olmstead’s Fourth Amendment rights due to the absence of physical trespass on personal property. This result has serious long-term effects on future privacy cases.

Wiretapping can happening when one least expect it. To know how wiretapping works is to be able to argue against it.

• The main question for this section is:
  • What differences are noticeable in the use of wiretapping in today’s world and 1928? What would the outcome of a case like this be if law enforcement wiretapped a cell phone?

Extrasensory Breaches – Kyllo v. United States (2001)

Sergeant Dan Hass used a thermal scan, the Agema Thermovision 210, to detect heat in Kyllo’s apartment, with some parts of the apartment reading hotter than others due to Kyllo growing marijuana in his apartment. Haas did not have a warrant to conduct the thermal scan. BLM agent William Elliot told Robert Thomson about his suspicion about Kyllo. He was investigating Kyllo’s neighbor Tova Shook, the daughter of his original suspect/investigation target Sam Shook. Local law enforcement informed Elliot that a police informant said that Kyllo could supply them with marijuana, giving Elliot suspicion of Kyllo.

Based on a blend of legal precedents including Katz v. United Stated and Smith v. Maryland, Thomson believed that the thermal scan did not count as an illegal search. So long as it was done from a public road instead of on private property, it was perfectly legal. Veteran Portland-based defense attorney Kenneth Lerner took on the responsibility of being Danny Kyllo’s lawyer. Filing a motion to suppress evidence, he argued that law enforcement needed a warrant to scan inside Kyllo’s home. To Lerner, Elliott indicated that Kyllo used more electricity than he should’ve despite the fact that he was using a normal range. Lerner claimed that Elliott manipulated a power utility chart without verifying his assessment with the people who create chart. In December 1992, the district court denied Lerner’s motion, leaving Kyllo to plead guilty and preserve the right to appeal. In March 1993, Kyllo pleaded guilty in order to preserve the right to appeal. June 1993 The judge sentenced Kyllo to five years and three months in federal prison.

The case was appealed up to the 9th US Circuit Court of Appeals. They ruled that the district court had to hold an evidentiary hearing to learn how exactly the thermal scan that Dan Hass used worked. By September 1999, the 9th Circuit found that the use of the thermal scanner was not a search and required no warrant. As Kyllo made no attempt to conceal these emissions, according to the 9th Circuit, he couldn’t claim a privacy violation.

Then came November 13th; Lerner filed an opening brief with the Supreme Court, making note of the thermal imaging’s development since the scan of Kyllo’s apartment. His argument relied on the claim that the warrantless use of a thermal imager was a search and in fact, required a warrant. Lerner makes a powerful counterargument that neither the Knotts nor Smith cases address whether invisible radiation is knowingly exposed, nor authorizes surveillance of infrared radiation as a mere technological enhancement. This split numerous circuit courses on the issue, making the case ripe for the Supreme Court’s taking in the 2000-2001 term. On February 20th, Lerner’s Oregon case makes national headlines.

Heading to the court for his arguments, he remembered not to concede to the core principal. “You have to figure out what it is that you cannot concede and to defend it, and that how I prepared. The home is sacrosanct.” He argued to the court that if the government could not obtain information from a home without their own unaided human sense, then they should not be allowed to do so with technology. The case ultimately goes in Kyllo’s favor due to Ken Lerner’s efforts to argue in his defense.

With the intense escalation in technological surveillance, this case matters more than ever. The importance of studying this case helps people to understand how law enforcement uses technology against civilians. For example, Artificial Intelligence has been used to store people’s facial data into law enforcement’s databases without those people’s consent. Also, internet users’ personal information is recorded without their knowledge or consent too. This case should be studied in order to grasp how law enforcement can get away with technological breaches of privacy. The close indirect connection Kyllo ended up having to Tova Shook was unpredictable. The fact that he was also a marijuana dealer didn’t help matters.

The main question for this section is:

• • What are the pieces of information in this case that demonstrates the carelessness of law enforcement’s of technology?

Lavabit Fallout

On May 24th 2013, Ladar Levison was getting ready for an evening of Volleyball. The FBI comes to Levison’s house to conduct a background check on him. The agents didn’t even know who the target of the Foreign Intelligence Surveillance Court order was because they were only acting on behalf of their Washington, DC colleagues. Levison explained that he offered an encrypted e-mail feature to a select group of around 10000 paying customer.

Ladar Levison showed a complete determination to protect his users’ privacy. His biggest concern was being forced to act as a government agent to conduct secret surveillance against any of his users, and also the fact that he would be forbidden from telling anyone about it. He used elliptical curve cryptography to protect stored e-mails. Incoming messages were encrypted before being saved to the Lavabit servers, meaning that if a user paid extra for the extra security services, even Levison himself wouldn’t be able to access the contents of the e-mail.

On June 10th, 2013, Levison was given a d-order for a name read as “Snowman”. The information on “Snowman” that he gave to the court in the Eastern District of Virginia was actually that of a wanted man, Edward Snowden. He was determined to protect the privacy of his users to the point of shutting down Lavabit. He could not talk about the process because of the legality of the situation, so his explanations excluded the fact that the FBI was trying to get him to leak the users’ email contents.

Lavabit was unique in the sense that Levison knew how the law worked and used that knowledge to his and his users’ advantage. This was a case where he took extra steps to resistance against the attempts of law enforcement to breach the privacy of online users. Of all the cases in Habeas Data, this one efficiently highlights the lengths one must go to in order to resist against surveillance and privacy violations.

Ladar Levison showed an extreme care for his users’ Fourth Amendment rights despite the real concerns of legal backlash. The government, having a lot of legal power, is more than capable of doing so much worse than what happened in this case. It would be very beneficial to study this case in other contexts.

• The main question for this section is:
  • What is the best way to conceal private information in case authorities or others seek to obtain it?

Invading the phone during unrelated frisking

On August 22nd, 2009, San Diego police officer Charles Dunnigan pulls over 19-year-old David Leon Riley for having expired registration tags. After a series of events Dunnigan finds a green bandana and two miniature Converse sneakers. The colors are believed to be those used to identify membership in the Lincoln Park Bloods. Dunnigan and Ruggiero look through Riley’s car, finding weapons, then look through his phone and find contact letters that give them reason to believe that Riley is a gang member.

After taking Riley downtown for booking, Detective Duane Malinowski got involved, and he found videos of street fights, including a voice that sounded like Riley’s encouraging the fights. Prosecutors presented evidence from Riley’s Phone including pictures of Riley holding up gang signs. They used this to argue that Riley had connections to an August 2nd shooting, charging him with attempted murder, assault with a semi-automatic weapon, more, and the ballistic tests of the guns found in Riley’s car matched shell casing found at the scene of the August 2nd shooting.

The first trial ended in a hung jury. Riley was tried again in the summer of 2011 and convicted and sentenced to 15 years to life. Riley made a decisive phone call from the San Diego Central Jail and got in contact with San Diego defense lawyer Pat Ford, who specialized in criminal appeals. Ford agreed to take on Riley’s case, finding the 19-year-old defendant to be a “charming and likeable guy” who came from a tough neighborhood. The searches of the cell phone weren’t the focus of their appeal. Riley’s December 27th appeal to the Court of Appeal for the State of California, Fourth Appellate District, the cell phone search was second on a list of four lines of arguments. The ultimate discussion for the court was to decide if it was a violation for Police to go through Riley’s phone without a warrant.

Police have a lot of power, and they are not afraid to demonstrate it against the people they interrogate and detain. In Riley’s case, the officer’s persistence in looking through his stuff after he admitted to his previous charges lead to his ultimate arrest in connections with gang violence. We should ask ourselves about the ethics of authority figures going this far in their interrogations over unrelated causes. The police officer didn’t stop Riley because he suspected he was a gang member or responsible for violence. So, how did this single stop over expired registration tags escalate to heavily? it’s something to think about when it comes to these kinds of escalating cases. What would’ve happened if they arrested Riley for a lesse yet still equally illegal offense?

The main question for this section is:

• • What boundaries of privacy did the officers violate in order to detain Riley? What would’ve been a more ethical way to interrogate Riley? Or would it be better if the Police Officer let Riley go after the first few questions?

Closing

Law enforcement has historically bypassed the law and trespassed people’s digital and physical boundaries in order to get them in trouble. Power is an addictive thing to them. They demonstrate their power over powerless civilians in many different ways. People are not safe from privacy violations as long as they have no understanding of how privacy violations occur. With digital companies, businesses, and governments keeping an eye on everyone, no one is safe. Not even the smallest and most inconsequential of people are safe online.

That’s why it is important to understand the ways government and law enforcement bypass the laws to incriminate and punish their suspects and targets. In order to resist surveillance, one must be able to argue against the justification authority figures weaponize against them. Be it their house, car, phone, or computer, a person’s privacy is a valuable and intimate aspect of them. It is vital to protect and affirm it.