American Citizen – The Massachusetts Freedom League has released a groundbreaking
online toolkit for criminal defense attorneys. This toolkit addresses the increasing use of surveillance technology by police, including facial recognition, automatic license plate readers, and gunshot detection systems, to investigate incidents involving customers.
Described as the first of its kind, the toolkit features a meticulously crafted legal motion that, upon judicial approval, compels prosecutors to disclose whether any surveillance technology was employed against a defendant. This encompasses a variety of technologies, including “stingray” phone trackers, location data from vendors, AI-generated police reports, and forensic tools that extract data from mobile devices and car infotainment systems.
Additionally, the toolkit includes retention motions that mandate government agencies and private vendors to preserve surveillance data before it is automatically erased. This aligns with a fundamental principle of U.S. criminal law, established in 1963, which requires prosecutors to present all evidence beneficial to the defense. The ACLU of Massachusetts will distribute this motion through a secure, password-protected library available exclusively to authorized attorneys.
Jennifer Herman, a staff attorney with the ACLU of Massachusetts and a key creator of the toolkit, states that the organization is combating unregulated surveillance on two fronts: urging cities to abolish systems such as Flock and ShotSpotter, and empowering defense attorneys to unveil the use of surveillance technologies in court.
“It often takes years for the initial use of technology to lead to a constitutional challenge in court,” Herman noted. This toolkit allows attorneys to “contest previous actions,” creating a documentation trail for future technological developments.
This initiative responds to the persistent gap between police adoption of new surveillance tools and court determinations regarding their legality. Although cell phone ownership soared in the late ’90s, it wasn’t until 2018 that the U.S. Supreme Court mandated law enforcement to obtain warrants for cell phone location records. Slow court processes aren’t the sole culprits; many technologies with poor disclosure histories lack sufficient judicial review because defendants remain unaware of these tools.
According to documentation accompanying the announcement, police departments frequently deploy surveillance technologies “without even informing prosecutors how to utilize them.” For years, the FBI required local police to sign confidentiality agreements before employing cell phone site simulators, commonly referred to as Stingrays, which masquerade as cell towers to covertly locate mobile devices. In Baltimore, such agreements led to prosecutors being instructed to dismiss criminal cases entirely when the device was not disclosed during trials, a situation that occurred over 4,300 times from 2007 to 2015.
Investigations in Missouri reveal the use of Fog Reveal, a commercial tool leveraging app-collected location data to track movements, in a 2017 murder case, as reported by the Associated Press. No evidence of this was presented in court. Similarly, in 2022, Louisiana authorities obtained an arrest warrant for Georgia resident Randall Colan Reed, who was misidentified through facial recognition. The warrant claimed his identification was based on a “reliable source,” not software, raising critical questions about transparency in law enforcement procedures.
Source: www.wired.com