Should TDCJ staff resent giving up Facebook passwords?

The Back Gate posed an interesting question to Texas prison staff and got some animated responses: "Is TDCJ violating your privacy rights by requiring you give them your Facebook password?" Most respondents seemed to be against it and some suspected the agency of ulterior motives: E.g., "This has less to do with keeping us from being friends with former offenders and everything to with keeping an eye on what we might be saying about our own administrations."

Whaddya think? Justified security measure or snooping beyond the purview of a government employer? There are a lot of interesting angles from many different perspectives on that one. How would you prioritize the conflicting values and interests aligned on the question?

Droning away: Which agencies requested FAA permission for spy drones?

Which Texas police agencies  and  educational institutions have requested permission to  use unmanned drones from the Federal Aviation Administration? Reports Texas Watchdog, via EFF:

Texas is home to many: the Houston and Arlington police departments; the Texas Department of Public Safety; the Hays County Office of Emergency Management in San Marcos; Texas A&M University Corpus Christi; Texas A&M – Texas Engineering Experiment Station in College Station and Texas State University in San Marcos

Further,

See a map of the agencies given permission to fly drones here.

EFF officials also obtained a list of private drone manufacturers authorized to fly drones domestically.

Notify cell phone users when law-enforcement accesses personal data

Check out this must-read item from MSNBC about state and local law enforcement accessing locator information from personal cell phones, using data uncovered by the ACLU from open records to analyze the growing frequency of such requests and the millions of dollars earned by cell phone carriers from the practice.

Grits was particularly interested in a suggestion by a former Justice Department official who "favors a system that would require cellphone carriers to inform customers – even after the fact – that law enforcement has obtained their location or cellphone call data." That would be an excellent idea for privacy legislation when the Texas Lege meets next year.

Police quietly expanding warrantless cell phone tracking

The New York Times this weekend had a feature on the dramatic growth in cell-phone tracking by law enforcement based on thousands of pages of documents obtained by the ACLU from local police departments, reporting that:

While cell tracking by local police departments has received some limited public attention in the last few years, the A.C.L.U. documents show that the practice is in much wider use — with far looser safeguards — than officials have previously acknowledged.

The issue has taken on new legal urgency in light of a Supreme Court ruling in January finding that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches. While the ruling did not directly involve cellphones — many of which also include GPS locators — it raised questions about the standards for cellphone tracking, lawyers say.

The police records show many departments struggling to understand and abide by the legal complexities of cellphone tracking, even as they work to exploit the technology.

In cities in Nevada, North Carolina and other states, police departments have gotten wireless carriers to track cellphone signals back to cell towers as part of nonemergency investigations to identify all the callers using a particular tower, records show. 

In California, state prosecutors advised local police departments on ways to get carriers to “clone” a phone and download text messages while it is turned off.

At the end of the story, there's a brief discussion about pending reform efforts:

Congress and about a dozen states are considering legislative proposals to tighten restrictions on the use of cell tracking.

While cell tracing allows the police to get records and locations of users, the A.C.L.U. documents give no indication that departments have conducted actual wiretapping operations — listening to phone calls — without court warrants required under federal law.

Much of the debate over phone surveillance in recent years has focused on the federal government and counterterrorism operations, particularly a once-secret program authorized by President George W. Bush after the Sept. 11 attacks. It allowed the National Security Agency to eavesdrop on phone calls of terrorism suspects and monitor huge amounts of phone and e-mail traffic without court-approved intelligence warrants.

Clashes over the program’s legality led Congress to broaden the government’s eavesdropping powers in 2008. As part of the law, the Bush administration insisted that phone companies helping in the program be given immunity against lawsuits.

Since then, the wide use of cell surveillance has seeped down to even small, rural police departments in investigations unrelated to national security. 

“It’s become run of the mill,” said Catherine Crump, an A.C.L.U. lawyer who coordinated the group’s gathering of police records. “And the advances in technology are rapidly outpacing the state of the law.”

This is an issue I'd like to see the Texas Legislature address in 2013, preferably creating a warrant requirement for obtaining personal information including location from people's cell phones. This practice will be abused without rigorous court oversight and strong laws protective of personal privacy.

As an aside, the Times continues to misstate the effect of a recent SCOTUS ruling on police placing GPS trackers on cars, insisting the court found "that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches." In fact, SCOTUS ruled only that placing a GPS tracker on your car is a search, and did NOT go so far as to say it was an unreasonable one. The ruling was exceptionally narrow in that regard, and for some reason most of the media have overstated what the court actually said.

MORE: See ACLU's writeup of documents they received under open records.

Police, defendants, social media and internet privacy

The Dallas News had an interesting item this week behind the paywall about police officers getting into trouble for outing misconduct or criticizing one another via social media and online message boards. The story opened:

The online message board postings read, at times, like a typical teenager attacking a classmate.

“She has an attitude problem and is all mouth,” wrote “Eskimo88” in one December post.

“SHES AN IDIOT,” he wrote in another, referring to the same person in a post the next day as “bat [expletive] crazy.”

But the posts weren’t made by an angry adolescent. They were published on a members-only local law enforcement message board, undergroundcop.com, by Dallas police Public Integrity Detective Jeff Baum, according to public records. He made the postings in reference to a since-fired officer whom Baum’s unit investigated for criminal misconduct.

The revelation that Baum is “Eskimo88” could threaten the credibility of pending criminal cases against former Sgt. Stormy Magiera, who is accused among other things of lying about a December Dallas robbery in which police believe she was trying to buy prescription drugs. And the case highlights a culture among some officers of gossip, rumor-mongering and personal attacks that can have career-threatening consequences in the Internet era.

“We are seeing people lose their careers over a posting on Facebook, whether it was about a crime that they went to or about another officer or about a citizen,” said Harvey Hedden, executive director of the International Law Enforcement and Trainers Association.

It's been quite the trend in recent years for police to mine social media for information about defendants, but I haven't seen it used as often to allege police misconduct. That said, allowing such unfettered, anonymous carping by employees in a criminal justice setting can become corrosive and harmful. I know Grits shut down some TYC/juvenile justice strings because of exactly that type of unproductive, personal sniping against non-public figures, and it's unsurprising, if disappointing, that the online culture in some police departments isn't much better.

Perhaps relatedly, the blog Liberty and Justice for Y'all has a post on a unanimous Court of Criminal Appeals ruling which confusingly seemed to adopt a three-pronged standard from a Maryland case for authenticating that online postings actually came from a specific individual and not just someone using their computer or posing as them. However, wrote B.W. Barnett, "While the State failed, in the Tienda case, to use any of the methods articulated by the Maryland Court of Appeals, the CCA nonetheless held, that based on the circumstantial indicia of authenticity, the State created a prima facie case that would justify submitting the ultimate question of authenticity to the jury." So the court invokes a standard, then fails to follow it, but allows the evidence in anyway, declaring those methods are not exclusive. That, my friends, is outcome-based jurisprudence: Pick the outcome you want then pull a reason out of thin air to justify it.

In any event, the Tienda case will make it easier to establish the identities of police officers on sites like undergroundcop.com just like it makes it easier to prosecute workaday criminal defendants. In an odd sense, the police commenter Eskimo88 and the defendant in Tienda had somewhat aligned legal interests, at least as far as favoring a precedent that maximally protects internet privacy, forcing the state to prove authorship definitively as opposed to circumstantially.

What you say online, even anonymously, is increasingly likely to get you in trouble on the job or even with the justice system. I don't know that we've yet reached "the end of anonymity," but Internet privacy - for cops and citizens alike - certainly hangs by a tenuous thread.

Will Cowtown cell-phone trackers be used based on probable cause, or to obtain it?

The Fort Worth PD insists it was a misstatement, but an internal memo on its new Kingfish cell-phone tracking system said the device could be used for "developing probable cause." Previously the department had said they would only use the device after obtaining a search warrant, which would require obtaining probable cause before using it. Reported a local TV station:

A city memo describing the system's use sounds to some like police will track people's cellphones without first getting a warrant.

"The police department will use the KingFish System, a portable cellphone tracking system, to assist in locating, identifying, developing probable cause and apprehending priority offenders," the memo said.

The "developing probable cause" phrasing caught the attention of the American Civil Liberties Union. Police need to obtain a search warrant first, the organization said.

"Having a neutral party like a judge review and sign a warrant is the safeguard for individual privacy rights that prevents the police from simply using whatever tools are at their disposal to peek at, observe, watch or invade the privacy of folks at will," said Lisa Graybill, ACLU legal director.

But Fort Worth police say the description was misleading. The department always intended to obtain a search warrant before tracking someone, police said.

The department also said that if an arrest came from tracking someone, the district attorney, defense attorneys and a judge would all review the case.

If it was just a misstatement and they really do plan to get warrants, fine. If police intend to use the devices BEFORE they have probable cause, that's a problem. At a minimum they need some written policies on the subject. This was a consent-agenda item which wasn't discussed at all when the City Council approved it, and it sounds like the department's plans for the device and safeguards against abuse aren't as well-developed as they should be.

On preconviction shaming and the role of the prosecutor

Fort Worth criminal defense attorney Richard Henderson authored a response in the Star-Telegram to the Tarrant County District Attorney Joe Shannon and assistant DA Richard Alpert, who held a splashy press conference last week announcing a new policy of publishing DWI defendants' names on their website as a shaming tactic (discussed here on Grits). Wrote Henderson:

I would support a joint effort by the DA and the defense bar to prevent DWI, so long as it does not include the publishing of names on the DA's website.

The Texas Disciplinary Rules for lawyers specifically state that a lawyer is not supposed to seek publicity to gain an advantage in a proceeding.

Prosecutors have their own special rule stating this. They are to seek justice, not merely be advocates and seek convictions.

Alpert has stated that merely publishing the names is not a comment on the case for giving evidentiary details.

This contradicts what Alpert states on the website:

"Over the years, we have tried to make it clear to the public that during a 'no refusal weekend' there will be no way to hide the evidence of their intoxication. This year we are adding the promise that they also won't be able to keep their charges a secret."

Such rhetoric goes beyond merely publishing the names. The direct implication of having the name of a person charged with DWI on the DA's website is that the person is guilty.

All people are presumed innocent until found guilty in court. A police officer's finding of probable cause for DWI is not legal proof, yet that is all that is required for a DWI arrest.

Potential jurors will have access to the DA's website and the names of persons accused of DWI.

I think Shannon and Alpert mean well, but they need to rethink this policy and remember their role in the system.

RELATED: Does preconviction shaming deter DWI or just obliterate the presumption of innocence?