FRESNO, CA (July 8, 2015) – “Every breath you take. Every move you make. Every bond you break. Every step you take. I’ll be watching you.” These are lyrics from the 1980’s song performed by The Police. There’s glaring irony in that a song by the police may now very well describe the ability of local police to monitor everyday citizens. Local law enforcement utilizing high tech crime fighting technology now have a myriad of tools to track us, and learn more about our private lives than ever before.
While the recent announcement of the Fresno Police Department’s advanced Real Time Crime Center may serve to make us all feel safer, it also has some wondering how new technology is impacting every Americans 4th Amendment Right to privacy. With a few simple key strokes Fresno Police have the ability to pull up data associated with your home address, track where, and when you’ve been driving your vehicle, and monitor your movements via a large network of surveillance cameras spread across the community.
An example of such technology is featured in the 2002 film The Bourne Identity, which portrays young government agents frantically typing on their computers in a crowded room. In seconds, they are able to track where Jason Bourne, the main character, has been and where he’s going — his flights, train trips and hotels. One agent gets a photo of Bourne talking to a woman in an alley from a surveillance camera hundreds of miles away. Almost instantly, they identify her, using facial recognition software, and pull up the digital records of her life — including her family biography and her utility bills from three countries. The woman is just a bystander, but the movie suggests that the details of someone’s life can make anyone look guilty.
Meanwhile back in Fresno California, can police officers really sit in a room and gather that information in 60 seconds or less? “Probably not,” says Jeffrey T. Hammerschmidt CEO of Hammerschmidt Broughton Law Corporation’s. But “that is the community we’re moving toward.”
Hammerschmidt says one reason is the digital revolution itself. For instance, Facebook uses software now that identifies people from photos. Stores are reportedly using facial recognition programs, so the staff can learn the names of customers almost the moment they stroll through the door.
Hammerschmidt says there’s another reason government organizations are beginning to obtain digital records faster and faster — if not yet instantly as it does in movies: The laws regulating the government were written back in the analog age, so the government often doesn’t have many legal restraints. Technology is simply outpacing the legal system. America’s founders were not thinking about computers when they wrote the Bill of Rights.
The Fourth Amendment of the Bill Rights, ratified in 1791, has traditionally been Americans’ “principal constitutional protection against government spying on its’ own citizens,” says Hammerschmidt. As the amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
But Hammerschmidt and his partners Fresno area criminal defense expert Mark Broughton, and Rachel Hill feel that the world of computers has weakened the Fourth Amendment. Broughton saying “In the modern digital age, our 4th Amendment rights have come to mean very little.”
Here’s an example of how the 4th Amendment has been impacted by technology: Should local law enforcement want to gather intimate details about your life before the technical revolution. Whom do you associate with? What literature you’re reading? What you may be writing in your diary? What kinds of products you’ve been buying? Where you’re traveling, and where will you stay?
One of the best ways to get that information would have been to search your home, bug it and wiretap your phone. Based on the Fourth Amendment, that meant the police would have needed a search warrant. And to obtain a warrant, law enforcement officers must convince a judge that they have probable cause that the place they want to search, or the person they want to bug, is likely to reveal evidence of a crime.
But since the 1960s and 1970s, the Supreme Court and other courts have issued a series of rulings declaring that the government does not need a search warrant to obtain your personal documents if you have already shared them with somebody else. For instance, since you allow your bank and credit card company to know what you buy, and since you let your phone company know whom you call, you can’t claim that information is private.
In the wake of those court decisions, the digital revolution came along. And many of the most intimate details of your life that you used to protect at home morphed into digital documents — which are stored on someone else’s computers.
“When we send an email, we’ve shared with the Internet provider,” Hammerschmidt say. “When we search the World Wide Web, we’ve shared it with the Web company. When we walk around with a cellphone, we are sharing with the cellphone company our whereabouts. All of that information has lost its constitutional protection, and the government can get it without having to make any showing that you’re engaged in illegal activity or suspicious activity.”
This simply means that in this digital age, law enforcement often do not need to show probable cause of a crime when they want to find out details about our lives that they used to find in your home. Instead, they can get your private files from corporations that store your records on their computers.
Moreover, instead of a search warrant, the police might just need a subpoena — which is “quickly issued,” says Hammershmidt. Law enforcement doesn’t need a judge’s approval to obtain subpoenas — prosecutors can sign them on their own, as can authorized employees at federal and state agencies. And law enforcement agents don’t need evidence that there’s likely a crime. They need only to be able to show that the records they want are relevant to an investigation.
While Hammerschmidt Broughton Law Corporation fully supports the earnest efforts of law enforcement to keep us all safe, we must not abandon the rights and principals which serve as the bedrock foundation for the United States of America.
Please take a moment to review Fresno Bee reporter Rory Appleton’s coverage of Fresno’s Real Time Crime Center where HB Law Corp CEO Jeffrey T. Hammerschmidt voices his concerns with modern crime tracking methods.
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Real Time Crime Center is a privately funded computer system designed to monitor the network of cameras and sensors throughout Fresno. The center will field all 911 calls, and it gives officers access to any city camera — including police body and dash cameras and new traffic cameras. It officially went into 24-hour use on Tuesday.
“It’s an extremely difficult time,” Dyer said. “Officers are expected to know the unknown and see the unseen…
Real Time Crime Center is designed to provide information and allow for more informed decisions.”
Any high-priority 911 calls, defined as in-progress or life-threatening crimes, will now be filtered through a database to assess any possible threats an officer may encounter while responding.
THE FRESNO POLICE DEPARTMENT RESPONDS TO AROUND 2,700 DISPATCH CALLS PER DAY.
Dyer said police receive about 600 such calls per day out of the 1,200-1,300 911 calls fielded by dispatchers daily.
The database goes through all public information for the call’s location — from arrest records to pizza deliveries — and gives the address a rating. Green means minimal threat, yellow a possible threat and red a major threat. This is all done in a few seconds.
The system shows officers three pieces of data: the threat level, the criminal history of anyone living at the home and a list of known friends and family members. This list sometimes includes possible phone numbers and addresses of these associates. Dyer said this is useful in case police are looking to contact someone locked in a home, notify family members of an injured person or locate a suspect.
Dyer acknowledged that it was possible for a home to be given a red threat level because someone associated with it once had a violent conviction. For example, if a homeowner’s brother had mail forwarded to that address while in prison on a gun crime, that home could now be a red-threat home.
The center also allows officers to access a massive array of surveillance cameras.
As of Tuesday, the department has access to 180 video policing cameras placed at various intersections and public buildings, as well as the 140 traffic cameras owned by the city. The department has also partnered with Fresno Unified School District, giving the center access to the district’s 750 cameras.
Real Time Crime Center also will have access to the more than 400 police officer body cameras that will go into use by the end of 2015.
Dyer said the department has entered into an agreement with the River Park shopping center for use of its cameras. Similar negotiations are underway with local shopping malls, banks, hospitals, schools, convenience stores and retailers. This would give the department access to thousands more surveillance devices.
The department is also experimenting with two new traffic camera systems.
One is in use in two undisclosed intersections in Fresno, and it snaps photos of the license plates of every car that travels through.
The second system, known as Vigilant, is a group of mobile license plate readers that collect about 25,000 license plate screenshots per month. Should police decide to use this software, the department will have to pay $50,000 per year to the software company.
All of these surveillance systems, Dyer said, will enhance officer safety. Operators within the center will be able to watch police responses live and provide information or call for back-up at a much faster pace.
He pointed to a situation in which Real Time Crime Center, which has been in-use on a part-time basis, has already helped officers.
On May 3, one camera caught a brawl between two officers and a suspect in front of the Target at First Street and Shields Avenue. Operators will able to call in backup for the officers, each of whom were unable to reach their radios during the fight.
When asked about possible privacy issues, Dyer said the public tends to look at all technology advances through a “Big Brother” lens. He added that the video policing system has been in place since 2007 and was recently audited by a retired judge.
In 2014, former federal judge Oliver W. Wanger wrote a 36-page report on the system, saying it did not violate the public’s civil rights.
VIDEO POLICING CAMERAS ARE NOT ALLOWED TO FILM PROTESTS UNLESS CRIMINAL ACTIVITY IS GOING ON.
Jeff Hammerschmidt, former legal counsel for the department and a former assistant district attorney, said several issues could arise that violate a person’s Fourth Amendment right to privacy.
“It may create more problems than it solves,” he said.
Hammerschmidt cautioned that these new developments must always be weighed against the potential infringement of rights.
He added that the issue will likely be resolved through further litigation, and he expects the issue of police surveillance to reach the U.S. Supreme Court.