By Mailyn Fidler and Collin Anderson
Wednesday, November 16, 2016 at 10:57 AM
Wednesday, November 16, 2016 at 10:57 AM
An anonymous
Facebook plea recently went viral, asking people to check in to the Standing Rock Indian Reservation to
thwart police surveillance of the Dakota Access pipeline protesters. The plea
was based on the rumor that police were monitoring social media to identify
protesters and that inaccurate check-ins would confuse them – a rumor that has
swept the Internet before. This time, more than a million people
responded.
But at the
protest camp, the Morton County Sheriff’s Department denied following Facebook check-ins. And,
the Sacred Stone camp indicated the plea did not originate with them, although
they appreciated the gesture of solidarity. Indeed, it is unlikely the
department was relying only on Facebook check-ins to monitor protesters. If the
department is conducting social media surveillance, it would probably use more
sophisticated means than tracking self-reported locations. Nonetheless, law
enforcement and private surveillance of the pipeline
protesters is a real and present concern. In fact, this very graspable, if
false, worry about surveillance obscures more subtle and important ones.
My colleague
Collin Anderson and I have been tracking surveillance of the pipeline
protesters since August. Here, we discuss what we know about surveillance at
the Dakota Access pipeline protests and sketch the likely parameters of what we
don’t know. We also outline how we aim to find out more so that we can produce
a reliable report of surveillance practices around Standing Rock.
The North
Dakota situation involves two groups that have traditionally been subject to
extensive surveillance. Additionally, any tools at work
here are more notable because the state and local actors employing them are not
particularly well-resourced. Any surveillance going on at Standing Rock
demonstrates the pervasiveness of these surveillance practices.
Regardless
of one’s opinion of the Dakota Access pipeline or the protests against it, the
rules governing local and state use of electronic surveillance equipment in the
US are opaque, piecemeal, and subject to fluctuations in the political climate.
Guidance from the federal government on this issue is also changeable. The
upcoming change in administration in Washington also highlights how important
transparency and scrutiny of these practices and the rules that govern them
are.
The Need for
Informed Public Debate
Protesters
have repeatedly claimed that authorities are engaging in surveillance and
disrupting communications around the contested pipeline site. Pervasive
physical monitoring, such as filming cars passing through police checkpoints,
adds to the perception that local authorities are systematically identifying
protesters. The increasing number of arrests also adds to the potential
implications of such surveillance. However, a reliable narrative of
surveillance of the pipeline protests remains elusive. Law enforcement agencies
are generally close-lipped about their use of electronic surveillance in
investigations, and media reports often relay second-hand information that is
not rigorously sourced.
This lack of
accurate data is troubling from a public accountability standpoint: both
protesters and law enforcement or company representatives can advance their own
narratives. In the absence of trustworthy information, the public might
assume that phenomena such as poor mobile signal or battery life indicates cell
phone surveillance, while the police can deny use of surveillance, and
misinformation persists.
What We
Know: Helicopter Surveillance
In addition
to filming license plates at checkpoints, at least one local law enforcement
agency, the Morton County Sheriff’s Department, has used helicopters to conduct
aerial surveillance of pipeline protesters. Individuals in the Sacred Stone
Camp and other protesters have posted images to social media of a recurring set
of helicopters. Police have also released aerial night vision footage. The Sheriff’s
Department confirmed that they used helicopters for surveillance in a press release on October 23, in which
they discussed a police helicopter encountering a drone presumably belonging to
protesters.
Although use
of aerial surveillance is a common law enforcement practice, guidelines and
limitations on its use exist, and these guidelines may have been violated in
North Dakota. Someone – we don’t know who – broke the law in the course of
conducting this surveillance. An aircraft flying over the protest camps carried
an altered FAA registration number. Altering a
registration number carries with it a fine and/or imprisonment for up to three
years, according to federal law. Journalist Georgianne Neinaber investigated
this alteration, submitting FOIA requests to the FAA. A document returned as
part of the FAA’s response reports that the owner of a different helicopter
company, Double M Helicopters, claimed the registration number was altered in
support of law enforcement officials as a protection against threats. However,
the aircraft in question is actually registered to Johnson Flying, not Double
M. We still don’t know definitively the relationship between law enforcement, Double
M, and Johnson Flying, or who requested the altered registration number. We
have submitted FOIA requests to learn more.
Aerial
surveillance is not necessarily illegal and has become fairly routine. The
Supreme Court has ruled that “the Fourth Amendment does
not require the police traveling in the public airways at an altitude of 400
feet to obtain a warrant in order to observe what is visible to the naked eye.”
Still, the presence of bad faith practices in physical surveillance raises at
Standing Rock concerns about the same possibility in electronic surveillance.
The
Reasonable Realm of Possibility
As one petition calling for the FCC to
investigate reports of cell phone surveillances suggests, there’s still a lot
the public does not know about the use of physical and electronic surveillance
in response to the Dakota Access pipeline protests.
Let’s now
explore what we believe to be the reasonable realm of possible surveillance,
which formed the basis for our recent FOIA requests to local and state
agencies. We based these hypotheses on conversations with local actors and the
practices of other local and state law enforcement actors elsewhere, especially
in places that have experienced large-scale protests.
Morton
County, North Dakota (pop. 28,990) makes for a unique setting for the clash
between protesters and police. Resource and training constraints are different
in North Dakota, highlighting the need to examine the borrowing of tools,
tactics, or trainees from other police departments – which can exacerbate
concerns about the lack or appropriateness of legal frameworks governing the
use of electronic surveillance. According to the Sheriff’s Department, local police have
received equipment from other North Dakota counties and nearly 1,300 additional
personnel from nine states. At least three of these states possess some of the
tools mentioned below.
Cell Phone
Surveillance
Media
reports suggest ongoing cell phone surveillance at the pipeline protests,
citing “tell-tale” signs of devices that simulate cell phone towers for the
purpose of surveillance, including rapidly draining batteries and poor signal
quality. These devices (often referred to as Stingrays) trick phones into
transmitting information to them. If Stingrays are being used in Morton County,
their ability to identify participants and capture communication could have
substantial privacy implications that would warrant public scrutiny.
Yet because
they are difficult to detect, as is identifying the actor operating them, we do
not know definitively whether or not Stingrays have been operating in the
pipeline area (though Stingrays have recently been used in cities with active Black
Lives Matter protests). Complaints about the quality of connectivity have
plagued Sacred Stone Camp and surrounding areas from well before the protests
and led Standing Rock to establish its own mobile provider. Weak
signals or searching for signals, as often happens in rural locations, can also
drain batteries in ways that could suggest a Stingray.
Still, at
least sixty-eight agencies in twenty-three U.S. states have Stingray
equipment. At least three states that have sent assistance to law enforcement
in North Dakota possess such equipment – Wisconsin, Minnesota, and Indiana –
raising the possibility that equipment could have been shared. Shared devices
raise more questions about effective oversight – would the North Dakotan
agencies borrowing such equipment have adequate use policies in place? To
facilitate an informed public dialogue on effective public accountability on
the use of Stingrays and similar devices, we need stronger proof of their use
in North Dakota. To this end, we have submitted related FOIA requests to the
agencies listed at the end of this post.
Social Media
Surveillance
Law
enforcement agencies have conducted social media surveillance of other recent
protests, including Black Lives Matter demonstrations. If law
enforcement or private actors are conducting surveillance of pipeline protester
social media, they could be relying on software programs that automate
collection of a range of information from social media, rather than manually
monitoring Facebook check-ins. Tools like Geofeedia provide
sophisticated social media surveillance that can pull together information from
different sources and collect public or topic-based data in an automated manner
– gathering much more information than a typical user browsing Facebook
profiles manually could. For instance, the Baltimore County Police had a partnership
with Geofeedia, and apparently used it to monitor protesters during protests
over police racial bias.
The North
Dakota Department of Emergency Services denied a FOIA request about social
media surveillance filed by journalist Christopher Thomas, claiming three exemptionsfrom public
disclosure. The denial is intriguing, since other agencies, such as the North
Dakota National Guard, replied to Thomas’ request with no relevant documents. Our FOIA requests to
the agencies listed at the end of the post complement efforts on this topic by
Thomas and others.
Then there
is the question of the “false” Facebook check-ins. Some have wondered whether,
in theory, checking in to Standing Rock on Facebook from afar constitutes
hindering law enforcement. Under North
Dakota law, hindering law enforcement includes preventing the
discovery of a criminal or knowingly giving false information to an officer. We
believe an argument that such check-ins constitute interference is
questionable. Facebook is a multi-use platform, not primarily intended for law
enforcement use. Anecdotally, Facebook users often check-in to places where
they are not physically present (e.g. “dreaming of the beach…”). Checking in to
Standing Rock could be defined as “misleading” under Facebook terms of
service, but doing so falls well within the typical vernacular use
of Facebook and is generally understood by Facebook users. Using a social media
tool not intended for a police audience in a generally accepted manner seems
unlikely to qualify as hindrance.
Drone
Surveillance
We have even
fewer signs of drones being used by law enforcement or the pipeline company.
That said, we have received some reports of drones flying at night, when they
are harder to detect and identify, and other small aircraft are known to fly in
the area. Protesters have been seen using drones, and North Dakota has a unique
history with respect to drones and policing, both in their use and in legislation regarding their use.North
Dakota law does require warrants for law enforcement drone
flights in many situations, and also requires documentation of all unmanned
surveillance flights. We have filed FOIA requests with multiple agencies,
listed below, to find out more.
What We’re
Doing to Find Out More
We have
submitted requests under North Dakota’s public
records access law on cell site simulators, helicopter
surveillance, social media surveillance, and drone surveillance to the
following agencies: the North Dakota Attorney General’s Office (seeking
information from the North Dakota Bureau of Criminal Investigation and the
North Dakota State and Local Intelligence Center), the North Dakota Department
of Emergency Services, the North Dakota Highway Patrol, the Morton County
Sheriff’s Department, and the North Dakota National Guard. Our efforts
complement ongoing efforts by the North Dakota ACLU and the National Lawyer’s Guild,
as well as journalists from Unicorn Riot. Promoting an
educated public discourse on the use of electronic surveillance tactics by law
enforcement requires rigorous documentation, backed by data and connected to
its broader implications.
Thanks to
our colleagues in North Dakota who contributed to this research. If you
want to help us document surveillance, you can reach the authors at mfidler@cyber.harvard.edu
Photo: Rob
Wilson, Rob Wilson Photography
Mailyn Fidler is a
fellow at the Berkman Klein Center for Internet & Society at Harvard
University studying the exercise of power in the Internet society. She focuses
on Internet legislation in developing countries, grassroots protests against
government surveillance, and international politics and law relating to
surveillance technologies and practices. Follow her on Twitter, @mailynfidler.
Collin Anderson is a
Washington D.C.-based researcher focused on measurement and control on the
Internet, including network ownership and access restrictions, with an emphasis
on countries that restrict the free flow of information.
Donations can be sent
to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD
21218. Ph: 410-323-1607; Email: mobuszewski [at] verizon.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their lives."
Eugene Victor Debs
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