The following op-ed was co-authored by R Street Criminal Justice Director Arthur Rizer. 


Las Vegas will be inundated with 150,000 tech geeks this weekend flocking to the Consumer Electronics Expo, brimming with dazzling technologies that promise tremendous new convenience, but also raise new questions about our legal rights in the digital age.

With connected devices now ubiquitous, the walls around us have eyes and ears. Trusting them to make our lives better, we give them a great deal of private information. Your bank account, your credit card, your passwords, your messages and even your dating profiles are right there on your smartphone. Microphones, cameras, GPS and other sensors on our smartphones work in the background to collect data we may not want others to see.

This landscape is wide open to abuse by malicious actors and our own government.

A “security and privacy dumpster fire,” is how Techdirt describes this “Internet of things.” Cops can turn on your phone’s or laptop’s microphones remotely to spy on you, if you’re a suspect. FBI Director James Comey even puts tape over his laptop camera, calling it the “sensible” thing to do.

An Amazon Echo in the Bentonville, Ark., home of a man named James Bates, was the subject of a police warrant. Local police requested audio recordings, transcribed records and other text records from Bates’ device as part of a murder investigation.

Even if Bates didn’t use the “wake” word to activate the device’s connection to the Internet, police may have access to everything said near the Echo because it has local storage capability.

In future cases with similar technologies, police could — with or without the manufacturer’s help — remotely activate such a device to record a suspect. They don’t actually need to catch him planning the crime on tape for this information to be useful to prosecutors. The Echo keeps track of all interactions with its “master,” from when lights are activated to when a song is requested. Police could use this information to see if a person was home and cross-referenced with other devices the suspect may own, such as a smartphone, Fitbit or Xbox.

The more technology is intertwined with our lives, the more police will attempt to exploit the relationship between technology and criminals. University of Washington Law Professor Ryan Calo rightly suggests tech companies have an incentive to resist these kinds of requests.

We saw a good example last February when the FBI demanded Apple help it break into the phone of gunman Syed Farook. Apple CEO Tim Cook refused on grounds the company would not compromise its customers’ security and privacy by creating such a tool. On the other hand, not all companies are eager to pick a fight with the government, and some are even happy to volunteer your private data. Others don’t have the resources to put up a fight.

Of course, eavesdropping is not new. Governments have been intercepting electronic communications since the telegraph, and police were listening in on telephone conversations as far back as the 1890s. But the new world of connected devices makes the job of policing much more complex.

A modern perpetrator can communicate over a dozen messaging platforms, with myriad connected devices that could contain valuable information. For its part, law enforcement has a multitude of weapons at its disposal, even beyond a Title III request for real-time content and digital search warrants. These include pen registers to screen outgoing calls and trap and trace procedures for incoming calls.

In old Westerns or cop films, criminals always seemed to have the technological upper hand. Cops had six-shooters and the bank robbers had tommy guns; the kidnapper was always just ahead of the police’s ability to trace the caller’s location. Let’s never forget arch-villain Hans Gruber’s technological triumph at Nakatomi Tower, where he broke into the unbreakable vault with the help of police buffoonery, only to be defeated by a low-tech cop with two bullets and some packing tape.

In the near future, law enforcement will be the ones with the upper hand. While this promises to bring more bad guys to justice, it also creates a huge opportunity for abuse unless we find proper safeguards.

Another possibility is smart criminals will drop their smart devices. They’ll become off-the-grid outlaws breaking the law analog-style. If they don’t want to get caught, they may have to commit crime like it’s 1999.


Image by gazanfer