21ST CENTURY OPEN-SOURCE INTELLIGENCE AND LAW ENFORCEMENT UTILIZATION

American law enforcement relies heavily on open-source intelligence (OSINT) to effectively protect the citizens and communities that they serve. Because of technological advancements, this form of intelligence has rapidly evolved, making it difficult for law enforcement to efficiently collect, analyze, and disseminate this information. This thesis reviews current law enforcement use of open-source intelligence and conducts a case study on the use of open-source intelligence prior to and during the initial Ukraine invasion by Russian military forces. The research identifies social media open-source intelligence as the most heavily relied-upon form and a lack of collection standards, low public sentiment, and law enforcement culture as obstacles to its full potential use. Unprecedented crowdsourcing and high positive public sentiment toward Ukraine during the invasion were highlighted as key factors to success in defending against invading Russian forces. Forming a national OSINT standards committee, improving public sentiment to encourage public crowdsourcing, and forming a national OSINT database would increase law enforcement open-source intelligence effectiveness.Civilian, Washington D.C. Metropolitan Police DepartmentApproved for public release. Distribution is unlimited

Public Video Surveillance and the Separation of Powers

The thesis focuses on the response from the United States government on new challenges brought by the public video surveillance, in particular the privacy threat. Regarding regulating public video surveillance, the United States has gone on a different path, either from Britain with its similar political system or from China with a totally different one. The three branches of government in the U.S. are deadlocked and unable to take any meaningful actions. The Supreme Court, which is in a strong position to set national and uniform standards for privacy protection, has not found a way to break away from its own precedents. The legislative branch can do little on the national level regulations due to federalism and the distribution of law enforcement activities at the state and local level. Local legislative efforts might be helpful, but the process in each place will be complicated by concerns about public security, the interests of industry, and politicians’ imperative to take visible actions like video surveillance to fight against crimes and protect people, especially in the post-9/11 context. The executive branch might be the weakest point in the deadlock because it already bears responsibility for resolving tensions between privacy and safety. In the absence of action by the judicial and the legislative branches, self-restraint by the executive branch has become crucial in determining the actual privacy protection, however, the possibility of abuse by the executive branch may increase at the same time. Also, the United States’ local governments are not accountable to a single national authority. They must be accountable to the people. This thesis concludes that the public participation is the key to breaking through the deadlock in light of the democratic political structure in the United States

Public Video Surveillance and the Separation of Powers

The thesis focuses on the response from the United States government on new challenges brought by the public video surveillance, in particular the privacy threat. Regarding regulating public video surveillance, the United States has gone on a different path, either from Britain with its similar political system or from China with a totally different one. The three branches of government in the U.S. are deadlocked and unable to take any meaningful actions. The Supreme Court, which is in a strong position to set national and uniform standards for privacy protection, has not found a way to break away from its own precedents. The legislative branch can do little on the national level regulations due to federalism and the distribution of law enforcement activities at the state and local level. Local legislative efforts might be helpful, but the process in each place will be complicated by concerns about public security, the interests of industry, and politicians’ imperative to take visible actions like video surveillance to fight against crimes and protect people, especially in the post-9/11 context. The executive branch might be the weakest point in the deadlock because it already bears responsibility for resolving tensions between privacy and safety. In the absence of action by the judicial and the legislative branches, self-restraint by the executive branch has become crucial in determining the actual privacy protection, however, the possibility of abuse by the executive branch may increase at the same time. Also, the United States’ local governments are not accountable to a single national authority. They must be accountable to the people. This thesis concludes that the public participation is the key to breaking through the deadlock in light of the democratic political structure in the United States

Technological Leap, Statutory Gap, and Constitutional Abyss: Remote Biometric Identification Comes of Age

Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, vascular patterns, hormones, and gait, which, when paired with surveillance of public space, give rise to novel questions of law and policy. These technologies constitute what can be termed Remote Biometric Identification (“RBI”). That is, they give the government the ability to ascertain the identity (1) of multiple people, (2) at a distance, (3) in public space, (4) absent notice and consent, and (5) in a continuous and on-going manner. RBI fundamentally differs from what can be understood as Immediate Biometric Identification (“IBI”)--i.e., the use of biometrics to determine identity at the point of arrest, following conviction, or in conjunction with access to secure facilities. IBI, in contrast, tends to be focused (1) on a single individual, (2) close-up, (3) in relation either to custodial detention or in the context of a specific physical area related to government activity, (4) in a manner often involving notice and often consent, and (5) is a one-time or limited occurrence. The types of legal and policy questions raised by RBI significantly differ from those accompanying IBI. In the absence of a statutory framework, we are driven to Constitutional considerations, where the Court’s jurisprudence proves inadequate as a way of addressing the concerns that present in the realm of RBI. The Fourth Amendment’s guarantee to protection against unreasonable search and seizure and the probable cause requirement for the issuance of warrants; the Fifth Amendment’s right against self-incrimination; the First Amendment’s protection of speech and assembly; and the Fifth and Fourteenth Amendments’ due process protections fail to account for the way in which such measures fundamentally challenge the current norms. The article calls for Congressional action and a judicial framing commensurate with the threat posed by these new and emerging technologies

Local Law Enforcement Jumps on the Big Data Bandwagon: Automated License Plate Recognition Systems, Infomation Privacy, and Access to Government Information

As government agencies and law enforcement departments increasingly adopt big-data surveillance technologies as part of their routine investigatory practice, personal information privacy concerns are becoming progressively more palpable. On the other hand, advancing technologies and data-mining potentially offer law enforcement greater ability to detect, investigate, and prosecute criminal activity. These concerns (for personal information privacy and the efficacy of law enforcement) are both very important in contemporary society. On one view, American privacy law has not kept up with advancing technological capabilities, and government agencies have arguably begun to overstep the acceptable boundaries of information access, violating the privacy of their citizens and decreasing the relevancy of the Fourth Amendment. On another, crime has decreased significantly over the past few decades, thanks in part to more effective and efficient policing, and criminal activity has become more technologically advanced as well; to unduly limit police would hamper legitimate efforts to keep our communities safe from serious crime. Despite decades of increasingly safer streets and fewer instances of serious police-citizen violence in America, the police continue to hold a highly criticized role in society. Indeed, most recent press about police use of big data technologies has focused on the negative implications that these developments have on citizen privacy—which is a very important concnern –but less attention has been given to balancing these privacy interests with the important societal interest in promoting effective and efficient police work. The tensions between these competing, equally legitimate aims is substantial and, in the context of police use of automated license plate recognition (ALPR) systems, limiting the scope of law enforcement data retention to protect citizen privacy (one option that has begun to find traction in Canada and in some U.S. states) might also protect the privacy of the police officers using these systems, as disclosure of these databases to the public under freedom of information (FOI) laws can allow citizens to track the historical policing patterns of individual officers

Local Law Enforcement Jumps on the Big Data Bandwagon: Automated License Plate Recognition Systems, Infomation Privacy, and Access to Government Information

As government agencies and law enforcement departments increasingly adopt big-data surveillance technologies as part of their routine investigatory practice, personal information privacy concerns are becoming progressively more palpable. On the other hand, advancing technologies and data-mining potentially offer law enforcement greater ability to detect, investigate, and prosecute criminal activity. These concerns (for personal information privacy and the efficacy of law enforcement) are both very important in contemporary society. On one view, American privacy law has not kept up with advancing technological capabilities, and government agencies have arguably begun to overstep the acceptable boundaries of information access, violating the privacy of their citizens and decreasing the relevancy of the Fourth Amendment. On another, crime has decreased significantly over the past few decades, thanks in part to more effective and efficient policing, and criminal activity has become more technologically advanced as well; to unduly limit police would hamper legitimate efforts to keep our communities safe from serious crime. Despite decades of increasingly safer streets and fewer instances of serious police-citizen violence in America, the police continue to hold a highly criticized role in society. Indeed, most recent press about police use of big data technologies has focused on the negative implications that these developments have on citizen privacy—which is a very important concnern –but less attention has been given to balancing these privacy interests with the important societal interest in promoting effective and efficient police work. The tensions between these competing, equally legitimate aims is substantial and, in the context of police use of automated license plate recognition (ALPR) systems, limiting the scope of law enforcement data retention to protect citizen privacy (one option that has begun to find traction in Canada and in some U.S. states) might also protect the privacy of the police officers using these systems, as disclosure of these databases to the public under freedom of information (FOI) laws can allow citizens to track the historical policing patterns of individual officers

Bulk Biometric Metadata Collection

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In the wake of the disclosures by Edward Snowden in June 2013, members of Congress called for statutory reform to eliminate or significantly curtail indiscriminate metadata surveillance of United States citizens. The Snowden revelations illuminated that the bulk telephony metadata collection program had been legally justified under Section 215 of the USA PATRIOT Act. This Article contends that the USA FREEDOM Act, which amended Section 215 of the USA PATRIOT Act, does not restrict other types of non-telephony bulk metadata collection. This Article concludes that, rather than more tightly regulating metadata surveillance, the Act allows for metadata surveillance to proceed under differing justifications and in more delegated contexts. The potential of ubiquitous and continuous data collection and analysis that may stem from smart body cameras or smart glasses worn by law enforcement offers an important case study on why the USA FREEDOM Act is unable to regulate bulk biometric metadata collection

Bulk Biometric Metadata Collection

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In the wake of the disclosures by Edward Snowden in June 2013, members of Congress called for statutory reform to eliminate or significantly curtail indiscriminate metadata surveillance of United States citizens. The Snowden revelations illuminated that the bulk telephony metadata collection program had been legally justified under Section 215 of the USA PATRIOT Act. This Article contends that the USA FREEDOM Act, which amended Section 215 of the USA PATRIOT Act, does not restrict other types of non-telephony bulk metadata collection. This Article concludes that, rather than more tightly regulating metadata surveillance, the Act allows for metadata surveillance to proceed under differing justifications and in more delegated contexts. The potential of ubiquitous and continuous data collection and analysis that may stem from smart body cameras or smart glasses worn by law enforcement offers an important case study on why the USA FREEDOM Act is unable to regulate bulk biometric metadata collection

Bulk Biometric Metadata Collection

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In the wake of the disclosures by Edward Snowden in June 2013, members of Congress called for statutory reform to eliminate or significantly curtail indiscriminate metadata surveillance of United States citizens. The Snowden revelations illuminated that the bulk telephony metadata collection program had been legally justified under Section 215 of the USA PATRIOT Act. This Article contends that the USA FREEDOM Act, which amended Section 215 of the USA PATRIOT Act, does not restrict other types of non-telephony bulk metadata collection. This Article concludes that, rather than more tightly regulating metadata surveillance, the Act allows for metadata surveillance to proceed under differing justifications and in more delegated contexts. The potential of ubiquitous and continuous data collection and analysis that may stem from smart body cameras or smart glasses worn by law enforcement offers an important case study on why the USA FREEDOM Act is unable to regulate bulk biometric metadata collection