GOVERNMENT SURVEILLANCE SYSTEM TRAPWIRE COULD BE ILLEGAL

Annalee Newitz

Last week, whistleblower site Wikileaks posted some internal company documents about a high-tech surveillance system called Trapwire, which is used by governments and private companies to identify "suspicious" or "terrorist" behavior. Subsequently, Wikileaks was brought down by a concerted DDOS attack, and conspiracy theories mushroomed online about the Trapwire system, which was said to include foolproof facial recognition software (it doesn't) and to siphon private surveillance camera footage to intelligence agents (this is what Trapwire claims that its eponymous product does). Much has also been made of the many former CIA agents and officials who work at Trapwire and its former parent company Abraxas.
Conspiracy theories aside, there are a lot of shady aspects to Trapwire. And one of the shadiest is its dubious legal status. A recent ruling by the Supreme Court could mean that using Trapwire to track people is illegal without a search warrant.
US v. Jones
At issue is a case called US v. Jones, decided by the Supreme Court earlier this year, in which police had secretly put a GPS device on a suspect's car and tracked it for nearly a month without a warrant. As a result, they convicted the suspect of dealing drugs. But the Court decided that the use of a GPS in this case was a violation of the Fourth Amendment, which is designed to protect people from unreasonable, privacy-invading searches. How could tracking this man's car in public really be a violation of privacy? After all, many people saw him driving around.
Several members of the Court found that the problem was that the officers were going beyond simply seeing the car in public. They were tracking its every move for a month, and then analyzing all that data for patterns they never would have seen if they simply spotted the car as it drove by. This act tipped the police officers' acts from reasonable to unreasonable under the law. One of the barometers the Court uses to measure whether an act invades privacy is to compare it to what would have been possible at the time the Constitution was framed, over 200 years ago. Concurring with the US v. Jones decision, Justice Alioto wrote, memorably:

Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach's owner? . . . The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both-not to mention a constable with incredible fortitude and patience.

In other words, the kind of public monitoring referred to in the Fourth Amendment does not include monitoring people's every move and analyzing it using surveillance technology.
Given this interpretation of the Fourth Amendment, it's very possible that the government's warrantless use of Trapwire would also be deemed an invasion of privacy.
The Problem With Datamining
Over the past few days, a couple of "debunker" articles have come out in the US media which attempt to explain why Trapwire isn't as harmful as the conspiracy theorists say. Unfortunately, many of these articles have missed the point. They seek to reassure us that Trapwire is harmless because it isn't a secret technology, or because facial recognition technology sucks. Both of those things are true. But in the very act of trying to debunk Trapwire as a dangerous technology, FutureTense's Ryan Gallagher identifies what may be the most troubling part of the system — it's ability to track, aggregate, and automatically analyze surveillance data:

What makes TrapWire stand out is what it does with the stored information. Using algorithms, it is designed to automatically identify "patterns indicative of terrorist activity" at a site-and across various sites-before issuing advance warning that outlines the level of threat to a given location. It does this by, with prior approval of each client, aggregating and analyzing event reports from all facilities that are using the system. The underpinning logic is that terrorists who are going to attack a building or buildings will conduct rigorous planning and surveillance of a target before they attack. This type of reconnaissance activity would, in theory, be logged onto TrapWire by security personnel-triggering a pre-emptive alert if a pattern were detected.

So basically Trapwire stores surveillance information about people across several locations and analyzes them automatically. This kind of tracking and analysis is precisely what the Supreme Court suggested wasn't constitutional in US v. Jones.
One of Trapwire's big proponents is Fred Burton, VP of private intelligence company Stratfor, who described Trapwire like this:

Camera surveillance technology is in my opinion one of the most innovative tools developed since 9-11 to help mitigate terrorist threats. One of the systems known as TrapWire is leading the way in this field.
From a protective intelligence perspective, surveillance technology has the ability to share information on suspicious events or suspects between cities. Operationally, the ability to identify hostile surveillance at one target set - in multiple cities - can be used to neutralize terror threats by interrupting the attack cycle. Meaning, a suspect conducting surveillance of an HVT in one city can also be spotted by TrapWire conducting similar activity in another location, connecting the infamous dots.

It's important to note that Burton said this while trying to sell Trapwire, so he may have exaggerated its capabilities. But if his description is even partly accurate, he is describing an invasion of privacy, where people are being tracked and monitored over time and in different places without a warrant.
Why Trapwire May Be Unconstitutional
More to the point, the behaviors described by Burton could be a violation of the Fourth Amendment. In US v. Jones, the Supreme Court found that GPS tracking was a "search" that requires a warrant and judicial oversight. If tracking people with a GPS requires a warrant, then surely tracking people with Trapwire should too. Remember, Trapwire isn't just a stationary security camera outside one building. It's a network of surveillance devices that all feed into a database, where agents can analyze a suspect's behavior throughout a city for months.
Electronic Frontier Foundation staff attorney Kurt Opsahl told io9 via email:

We need to get more information to fully analyze the TrapWire situation. However, the information available raises important questions. When surveillance networks become ubiquitous, and capable of tracking individual people over multiple locations, it creates the same Fourth Amendment issues whether done by a GPS tracker (like in U.S. v. Jones) or by a network of cameras, or by other technologies. Regardless of the technology, the government should need a warrant for persistent tracking of individuals.

Chris Conley, a privacy lawyer and technologist with the ACLU of Northern California amplified this sentiment, telling io9 that what might be unconstitutional about Trapwire is the fact that the system essentially follows people around for an unlimited amount of time. It also seems to create profiles of suspicious individuals and activities. Conley explained that it's perfectly legal in most cases for private companies using Trapwire to share all their data with the government. That isn't the problem. The problem is when Trapwire users — government or otherwise — start using that data to track people.
So the question we should be asking about Trapwire is whether this surveillance system is lawful under the Constitution. Right now, it's looking like Trapwire violates the rules of the very government it was invented to serve.
Further Reading:
There is a terrific article that the ACLU has posted, outlining all the other privacy-invading technologies like Trapwire that are already being used throughout the country.
EFF's US v. Jones page
Noah Shachtman has a fascinating investigation over at Danger Room of all the shady business dealings behind the invention and marketing of Trapwire
Photo by SOMATUSCAN via Shutterstock
http://io9.com/5934832/surveillance-system-trapwire-could-be-illegal