Entries Tagged "police"

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The Exclusionary Rule and Security

Earlier this month, the Supreme Court ruled that evidence gathered as a result of errors in a police database is admissible in court. Their narrow decision is wrong, and will only ensure that police databases remain error-filled in the future.

The specifics of the case are simple. A computer database said there was a felony arrest warrant pending for Bennie Herring when there actually wasn’t. When the police came to arrest him, they searched his home and found illegal drugs and a gun. The Supreme Court was asked to rule whether the police had the right to arrest him for possessing those items, even though there was no legal basis for the search and arrest in the first place.

What’s at issue here is the exclusionary rule, which basically says that unconstitutionally or illegally collected evidence is inadmissible in court. It might seem like a technicality, but excluding what is called “the fruit of the poisonous tree” is a security system designed to protect us all from police abuse.

We have a number of rules limiting what the police can do: rules governing arrest, search, interrogation, detention, prosecution, and so on. And one of the ways we ensure that the police follow these rules is by forbidding the police to receive any benefit from breaking them. In fact, we design the system so that the police actually harm their own interests by breaking them, because all evidence that stems from breaking the rules is inadmissible.

And that’s what the exclusionary rule does. If the police search your home without a warrant and find drugs, they can’t arrest you for possession. Since the police have better things to do than waste their time, they have an incentive to get a warrant.

The Herring case is more complicated, because the police thought they did have a warrant. The error was not a police error, but a database error. And, in fact, Judge Roberts wrote for the majority: “The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.”

Unfortunately, Roberts is wrong. Government databases are filled with errors. People often can’t see data about themselves, and have no way to correct the errors if they do learn of any. And more and more databases are trying to exempt themselves from the Privacy Act of 1974, and specifically the provisions that require data accuracy. The legal argument for excluding this evidence was best made by an amicus curiae brief filed by the Electronic Privacy Information Center, but in short, the court should exclude the evidence because it’s the only way to ensure police database accuracy.

We are protected from becoming a police state by limits on police power and authority. This is not a trade-off we make lightly: we deliberately hamper law enforcement’s ability to do its job because we recognize that these limits make us safer. Without the exclusionary rule, your only remedy against an illegal search is to bring legal action against the police—and that can be very difficult. We, the people, would rather have you go free than motivate the police to ignore the rules that limit their power.

By not applying the exclusionary rule in the Herring case, the Supreme Court missed an important opportunity to motivate the police to purge errors from their databases. Constitutional lawyers have written many articles about this ruling, but the most interesting idea comes from George Washington University professor Daniel J. Solove, who proposes this compromise: “If a particular database has reasonable protections and deterrents against errors, then the Fourth Amendment exclusionary rule should not apply. If not, then the exclusionary rule should apply. Such a rule would create an incentive for law enforcement officials to maintain accurate databases, to avoid all errors, and would ensure that there would be a penalty or consequence for errors.”

Increasingly, we are being judged by the trail of data we leave behind us. Increasingly, data accuracy is vital to our personal safety and security. And if errors made by police databases aren’t held to the same legal standard as errors made by policemen, then more and more innocent Americans will find themselves the victims of incorrect data.

This essay originally appeared on the Wall Street Journal website.

EDITED TO ADD (2/1): More on the assault on the exclusionary rule.

EDITED TO ADD (2/9): Here’s another recent court case involving the exclusionary rule, and a thoughtful analysis by Orin Kerr.

Posted on January 28, 2009 at 7:12 AM • View Comments

New Police Computer System Impeding Arrests

In Queensland, Australia, policemen are arresting fewer people because their new data-entry system is too annoying:

He said police were growing reluctant to make arrests following the latest phased roll-out of QPRIME, or Queensland Police Records Information Management Exchange.

“They are reluctant to make arrests and they’re showing a lot more discretion in the arrests they make because QPRIME is so convoluted to navigate,” Mr Leavers said. He said minor street offences, some traffic offences and minor property matters were going unchallenged, but not serious offences.

However, Mr Leavers said there had been occasions where offenders were released rather than kept in custody because of the length of time it now took to prepare court summaries.

“There was an occasion where two people were arrested on multiple charges. It took six detectives more than six hours to enter the details into QPRIME,” he said. “It would have taken even longer to do the summary to go to court the next morning, so basically the suspects were released on bail, rather than kept in custody.”

He said jobs could now take up to seven hours to process because of the amount of data entry involved.

This is a good example of how non-security incentives affect security decisions.

Posted on January 22, 2009 at 1:51 PM • View Comments

Arming New York City Police with Machine Guns

I have mixed feelings about this:

The NYPD wants all 1,000 Police Academy recruits trained to use M4 automatic machine guns – which are now carried only by the 400 cops in its elite Emergency Service Unit – in time for the holiday celebration in Times Square.

On the one hand, deploying these weapons seems like a bad idea. On the other hand, training is almost never a bad thing.

Oh, and in case you were worried:

There is no intelligence Times Square will be a target on New Year’s Eve. The area will be on high alert, but has been so for every year since the millennium.

Posted on December 16, 2008 at 3:43 PM • View Comments

BNP Database Leaked

This is a big deal.

British National Party (BNP, a far-right nationalist party) membership and contacts list. 12,801 individuals are represented. Contains contact details and notes on selected party members and (possibly) other individuals. The list has been independently verified by Wikileaks staff as predominantly containing current or ex-BNP members, however other individuals who have donated to the BNP or who have had other contact (not necessarily supportive) with the BNP or one of its fronts may also be represented.

Says BBC:

Occupations ascribed to the listed names include teachers, a doctor, nurse, vicar and members of the armed forces.

While there is no ban on many of those professions joining the BNP, its right-wing political stance and whites-only membership policy are seen by many as incompatible with frontline public service.

Police officers, on the other hand, are formally banned from joining, a policy which is recognised in the list.

Alongside the name of a serving officer, the document states that there is “Discretion required re. employment concerns”.

Seems that the BNP database wasn’t hacked from the outside, but that someone on the inside leaked the list.

There’s a lot more leaked BNP documents on the Wikileaks website.

Posted on November 24, 2008 at 6:26 AM • View Comments

U.S. Court Rules that Hashing = Searching

Really interesting post by Orin Kerr on whether, by taking hash values of someone’s hard drive, the police conducted a “search”:

District Court Holds that Running Hash Values on Computer Is A Search: The case is United States v. Crist, 2008 WL 4682806 (M.D.Pa. October 22 2008) (Kane, C.J.). It’s a child pornography case involving a warrantless search that raises a very interesting and important question of first impression: Is running a hash a Fourth Amendment search? (For background on what a “hash” is and why it matters, see here).

First, the facts. Crist is behind on his rent payments, and his landlord starts to evict him by hiring Sell to remove Crist’s belongings and throw them away. Sell comes across Crist’s computer, and he hands over the computer to his friend Hipple who he knows is looking for a computer. Hipple starts to look through the files, and he comes across child pornography: Hipple freaks out and calls the police. The police then conduct a warrantless forensic examination of the computer:

In the forensic examination, Agent Buckwash used the following procedure. First, Agent Buckwash created an “MD5 hash value” of Crist’s hard drive. An MD5 hash value is a unique alphanumeric representation of the data, a sort of “fingerprint” or “digital DNA.” When creating the hash value, Agent Buckwash used a “software write protect” in order to ensure that “nothing can be written to that hard drive.” Supp. Tr. 88. Next, he ran a virus scan, during which he identified three relatively innocuous viruses. After that, he created an “image,” or exact copy, of all the data on Crist’s hard drive.

Agent Buckwash then opened up the image (not the actual hard drive) in a software program called EnCase, which is the principal tool in the analysis. He explained that EnCase does not access the hard drive in the traditional manner, i.e., through the computer’s operating system. Rather, EnCase “reads the hard drive itself.” Supp. Tr. 102. In other words, it reads every file-bit by bit, cluster by cluster-and creates a index of the files contained on the hard drive. EnCase can, therefore, bypass user-defined passwords, “break down complex file structures for examination,” and recover “deleted” files as long as those files have not been written over. Supp. Tr. 102-03.

Once in EnCase, Agent Buckwash ran a “hash value and signature analysis on all of the files on the hard drive.” Supp. Tr. 89. In doing so, he was able to “ingerprint” each file in the computer. Once he generated hash values of the files, he compared those hash values to the hash values of files that are known or suspected to contain child pornography. Agent Buckwash discovered five videos containing known child pornography. Attachment 5. He discovered 171 videos containing suspected child pornography.

One of the interesting questions here is whether the search that resulted was within the scope of Hipple’s private search; different courts have approached this question differently. But for now the most interesting question is whether running the hash was a Fourth Amendment search. The Court concluded that it was, and that the evidence of child pornography discovered had to be suppressed:

The Government argues that no search occurred in running the EnCase program because the agents “didn’t look at any files, they simply accessed the computer.” 2d Supp. Tr. 16. The Court rejects this view and finds that the “running of hash values” is a search protected by the Fourth Amendment.

Computers are composed of many compartments, among them a “hard drive,” which in turn is composed of many “platters,” or disks. To derive the hash values of Crist’s computer, the Government physically removed the hard drive from the computer, created a duplicate image of the hard drive without physically invading it, and applied the EnCase program to each compartment, disk, file, folder, and bit.2d Supp. Tr. 18-19. By subjecting the entire computer to a hash value analysis-every file, internet history, picture, and “buddy list” became available for Government review. Such examination constitutes a search.

I think this is generally a correct result: See my article Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005), for the details. Still, given the lack of analysis here it’s somewhat hard to know what to make of the decision. Which stage was the search—the creating the duplicate? The running of the hash? It’s not really clear. I don’t think it matters very much to this case, because the agent who got the positive hit on the hashes didn’t then get a warrant. Instead, he immediately switched over to the EnCase “gallery view” function to see the images, which seems to be to be undoudtedly a search. Still, it’s a really interesting question.

Posted on November 5, 2008 at 8:28 AM • View Comments

Nonviolent Activists Are Now Terrorists

Heard about this:

The Maryland State Police classified 53 nonviolent activists as terrorists and entered their names and personal information into state and federal databases that track terrorism suspects, the state police chief acknowledged yesterday.

Why did they do that?

Both Hutchins and Sheridan said the activists’ names were entered into the state police database as terrorists partly because the software offered limited options for classifying entries.

I know that once we had this “either you’re with us or with the terrorists” mentality, but don’t you think that—just maybe—the software should allow for a little bit more nuance?

Posted on October 9, 2008 at 1:07 PM • View Comments

UK Police Seize War on Terror Board Game

They said—and it’s almost too stupid to believe—that:

the balaclava “could be used to conceal someone’s identity or could be used in the course of a criminal act”.

Don’t they realize that balaclavas are for sale everywhere in the UK? Or that scarves, hoods, handkerchiefs, and dark glasses could also be used to conceal someone’s identity?

The game sounds like it could be fun, though:

Each player starts as an empire filled with good intentions and a determination to liberate the world from terrorists and from each other.

Then the reality of world politics kicks and terrorist states emerge.

Andrew said: “The terrorists can win and quite often do and it’s global anarchy. It sums up the randomness of geo-politics pretty well.”

In their cardboard version of realpolitik George Bush’s “Axis of Evil” is reduced to a spinner in the middle of the board, which determines which player is designated a terrorist state.

That person then has to wear a balaclava (included in the box set) with the word “Evil” stitched on to it.

Buy yours here; I first blogged about it in 2006.

Posted on August 15, 2008 at 6:50 AM • View Comments

Amber Alerts As Security Theater

Interesting analysis:

Since its birth 12 years ago after a fatal kidnapping in Texas, Amber Alert has quickly become one of the best-known tools in the national law enforcement arsenal. The warnings are familiar to anyone who watches cable TV news, especially during the summer, when the drumbeat of abduction stories seems to increase. Last year, 227 alerts were issued nationwide, each galvanizing interest in the local community and flooding police with tips. While the particulars of the state systems differ, the goal is the same: to disperse news of a kidnapping as widely and quickly as possible, in the hope that someone will spot the kidnapper before a child is harmed.

The program’s champions say that its successes have been dramatic. According to the National Center for Missing and Exploited Children, more than 400 children have been saved by Amber Alerts. Of the 17 children Massachusetts has issued alerts on since it created its system in 2003, all have been safely returned.

These are encouraging statistics—but also deeply misleading, according to some of the only outside scholars to examine the system in depth. In the first independent study of whether Amber Alerts work, a team led by University of Nevada criminologist Timothy Griffin looked at hundreds of abduction cases between 2003 and 2006 and found that Amber Alerts—for all their urgency and drama—actually accomplish little. In most cases where they were issued, Griffin found, Amber Alerts played no role in the eventual return of abducted children. Their successes were generally in child custody fights that didn’t pose a risk to the child. And in those rare instances where kidnappers did intend to rape or kill the child, Amber Alerts usually failed to save lives.

Posted on August 11, 2008 at 7:59 AM • View Comments

Indictments Against Largest ID Theft Ring Ever

It was really big news yesterday, but I don’t think it’s that much of a big deal. These crimes are still easy to commit and it’s still too hard to catch the criminals. Catching one gang, even a large one, isn’t going to make us any safer.

If we want to mitigate identity theft, we have to make it harder for people to get credit, make transactions, and generally do financial business remotely:

The crime involves two very separate issues. The first is the privacy of personal data. Personal privacy is important for many reasons, one of which is impersonation and fraud. As more information about us is collected, correlated, and sold, it becomes easier for criminals to get their hands on the data they need to commit fraud. This is what’s been in the news recently: ChoicePoint, LexisNexis, Bank of America, and so on. But data privacy is more than just fraud. Whether it is the books we take out of the library, the websites we visit, or the contents of our text messages, most of us have personal data on third-party computers that we don’t want made public. The posting of Paris Hilton’s phone book on the Internet is a celebrity example of this.

The second issue is the ease with which a criminal can use personal data to commit fraud. It doesn’t take much personal information to apply for a credit card in someone else’s name. It doesn’t take much to submit fraudulent bank transactions in someone else’s name. It’s surprisingly easy to get an identification card in someone else’s name. Our current culture, where identity is verified simply and sloppily, makes it easier for a criminal to impersonate his victim.

Proposed fixes tend to concentrate on the first issue—making personal data harder to steal—whereas the real problem is the second. If we’re ever going to manage the risks and effects of electronic impersonation, we must concentrate on preventing and detecting fraudulent transactions.

I am, however, impressed that we managed to pull together the police forces from several countries to prosecute this case.

Posted on August 7, 2008 at 12:45 PM • View Comments

Terrorists Using Open Wireless Networks

Remember when I said that I keep my home wireless network open? Here’s a reason not to listen to me:

When Indian police investigating bomb blasts which killed 42 people traced an email claiming responsibility to a Mumbai apartment, they ordered an immediate raid.

But at the address, rather than seizing militants from the Islamist group which said it carried out the attack, they found a group of puzzled American expats.

In a cautionary tale for those still lax with their wireless internet security, police believe the email about the explosions on Saturday in the west Indian city of Ahmedabad was sent after someone hijacked the network belonging to one of the Americans, 48-year-old Kenneth Haywood.

Of course, the terrorists could have sent the e-mail from anywhere. But life is easier if the police don’t raid your apartment.

EDITED TO ADD (8/1): My wireless network is still open. But, honestly, the terrorists are more likely to use the open network at the coffee shop up the street and around the corner.

Posted on August 1, 2008 at 6:46 AM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.