The ACLU is arming lawyers to expose state surveillance secrets

American Civil The Massachusetts Liberties Union says it will be released This week’s online toolkit for criminal defense attorneys Designed to detect whether police have used it Surveillance techniques– facial recognition, automatic license plate readers, gunshot detection systems, and more – to secretly build cases against their clients.

The toolkit, which the group describes as the first of its kind, is built on handcrafted legal requests that, when granted by a judge, would force prosecutors to disclose whether surveillance technology was used against a defendant. It covers a range of technologies, from Stingray phone trackers. and Location data sold by commercial brokers To police reports drafted by artificial intelligence and forensic tools that hack phones and pull data from car infotainment systems.

It also includes preservation movements—which require monitoring data to be saved before it is automatically deleted—targeting government agencies and private vendors alike. The requests are based on a basic rule of American criminal law, established in 1963, that prosecutors are required to turn over all evidence that could assist the defense. The motions will be distributed through a password-protected library, the ACLU of Massachusetts says, and are available only to credentialed defense attorneys.

The group is waging a war against unregulated surveillance tools on two fronts, says Jennifer Herman, an attorney with the American Civil Liberties Union of Massachusetts and one of the toolkit’s authors. One front is to pressure cities to drop tools like flockAnd the license plate reader network ShotSpotterDirect gunshot detection system. The other is to arm defense attorneys to expose the surveillance in court.

“The amount of time it can take for the initial use of technology and an investigation to actually get to court and a constitutional challenge is long,” Herman says, so the proposals give lawyers a way to “challenge what actually happened in the past,” and build a record that carries over to whatever tool comes next.

The project responds to what its authors describe as the chronic gap between the moment police adopt a new surveillance tool and the moment courts finally decide whether its use is legal. Most Americans had cell phones by the late 1990s, but the U.S. Supreme Court did not require police to obtain a warrant for cell phone location records Until 2018. The delay is not just a result of slow-moving courts. The technologies with the worst disclosure records have faced the fewest judgments precisely because a defendant cannot challenge a tool they were never told about.

In materials accompanying the launch, the American Civil Liberties Union of Massachusetts says police use these tools “sometimes without disclosing their use to prosecutors handling the case.” For many years, the F.B.I I asked local police departments to sign confidentiality agreements Before the use of cell site simulators, suitcase-sized devices, commonly known as stingrays, that impersonate cell towers to secretly locate phones. In Baltimore, one such agreement directed prosecutors to do just that Dropping criminal cases entirely Instead of revealing the device in court, even though city police used it more than 4,300 times between 2007 and 2015. FBI records later obtained by the ACLU show the agreements. It continued until at least 2020.

When Missouri investigators used Fog Reveal, a commercial tool that maps people’s movements using location data collected from the app, in a 2017 murder investigation, the Associated Press found There is no trace of it in the trial exhibits Which helped convict the victim’s wife. When Louisiana authorities obtained an arrest warrant in 2022 for Randall Curran Reed, a man from Georgia It was misidentified by facial recognition He was jailed for about a week, and the memo attributed his identification not to the software, but to a “reliable source,” according to the Washington Post. The same document that authorized his arrest has been actively withheld how The police came to suspect him.