January 7, 2020

'What Trump Can Teach Us About Con Law,' Episode 36: Bribery

[Cross-posted from Apple Podcasts]

By Elizabeth Joh

Bribery is one of the three offenses listed in the Constitution as grounds for impeachment. Even though allegedly attempting to bribe Ukraine is the act that precipitated Trump’s impeachment, it’s not explicitly listed in the articles of impeachment. Why is that?

November 19, 2019

'What Trump Can Teach Us About Con Law,' episode 35

By Elizabeth Joh

[Cross-posted from Apple Podcasts]

Episode 35 of "What Trump Can Teach Us About Con Law" explores the Confrontation Clause of the Sixth Amendment, and whether it gives President Trump the right to meet the Ukraine whistle blower face to face.

Listen to the podcast

October 22, 2019

What Trump Can Teach Us About Con Law, Ep. 34: 'Foreign Affairs'

[Cross-posted from Apple podcasts]

By Elizabeth Joh

Donald Trump says he should not be impeached as president, since there was "no quid pro quo" on a phone call where he asked the Ukrainian president to investigate a political rival, former Vice President Joe Biden. But does quid pro quo need to be explicitly stated to be a legal issue? And can private citizens like Rudy Giuliani represent America on foreign policy issues? Listen to the latest episode of What Trump Can Teach Us About Con Law.

September 30, 2019

The Rise of Networked Vigilante Surveillance

[Cross-posted from Slate]

By Elizabeth Joh

Neighbors have always been able to spy on you. Watchful eyes behind curtains eventually turned into security cameras on porches. But these forms of self-protection have always been limited to what people can see and identify. But what happens when you fuse startup culture, artificial intelligence, and fearful neighbors? Call it the rise of networked vigilante surveillance. And we’re not prepared for it.

A new venture called Flock Safety is a good example of the problem. The Atlanta-based company sells a particular vision of security: Residents can track every single car that passes through their neighborhood with the help of the company’s automatic license plate readers. As the Los Angeles Times recently reported, a two-year contract entitles you to the cameras, cloud storage for the data, and, most importantly, software that allows quick identification of license plates—completing a task in seconds that would take a person hours or days. (It’s not necessary for a whole neighborhood to agree to adopt the system, as long as some neighbors agree to pay for it.) If a crime happens within the neighborhood, residents can check and see which cars were captured by the cameras in the area at the time. Imagine being able to produce a detailed map of one car’s whereabouts. Residents can send videos to the police, and the police can presumably request data from residents. Although the data is stored on the company’s servers, residents own the data, according to the company’s website.

In this way, suspicious neighbors are just catching up to the police, repo agents, and property managers, who already have access to license plate readers that can capture data at rates of thousands of plates per minute. Flock essentially tells potential customers: If these are useful tools for safety, shouldn’t individuals and communities have them, too? And like many other surveillance products sold to the police and the public, it promotes surveillance as a service with a for-profit motive. The company begin as a 2017 Y Combinator startup and has since raised millions in venture capital funding from Peter Thiel’s Founders Fund, among others. Its website promises to “increase solvability around crime with infrastructure-free [automatic license plate readers] in your community.”

The drive to move fast and sell quickly is especially ill-suited to a product of mass surveillance controlled by your neighbors. Maybe your neighborhood would have a trusted group soliciting input from everyone about how to run its ALPR network before signing up. Or maybe it wouldn’t. Maybe your systems administrator is the most ethical person on the block. Or maybe you grant everyone in the neighborhood access to the footage, as Flock permits. Flock provides a product; it doesn’t provide training in the law or in ethics. Nor would we expect it to—civilians aren’t law enforcement professionals.

But unleashing an automatic license plate reader system to groups of private citizens with a handshake and a contract means these systems are ripe for abuse. Once some residents in your neighborhood can track every license plate, they will face some unsavory temptations. Imagine a neighbor who wants a shot-by-shot map of the whereabouts of a spouse, a neighborhood child, or an unconventional resident. Or someone who wants to count the times your “suspicious” friends have come to visit the neighborhood. While automatic license plate reader cameras are sold as a crime prevention measure, there’s nothing to stop their use as tools of harassment or stalking.

And sometimes the software will be plain wrong. There is little for the wrongly accused people to clear their names. As for Flock? It’s not the company’s problem. As its head of marketing states, using the software inappropriately would be a “breach of contract.” But that is hardly a mechanism for accountability.

These new technologies prey upon familiar fears and hyper-charge them with the power of surveillance.

There seems little to stop those impulses from becoming even worse when social media can amplify some of our worst social traits. Why not collect lists of “suspicious” cars and plates and post them on Facebook or NextDoor? Why not combine these lists with videos from Ring video doorbells? If you’re the lone neighbor who doesn’t want any part of this, you have little choice other than to leave your community altogether. That is, if you even know your neighbors have installed an ALPR system.

The direct marketing of such products to individuals raises perhaps the most worrisome concern: encouraging vigilantism. These extralegal movements, organized to take the law into one’s own hands, have long been with us. Think back to Bernie Goetz in 1980s New York, the North Ward Citizens’ Committee in 1960s Newark, and even further back to the San Francisco Vigilance Committee of 1856. Or just remember the tragic circumstances of Trayvon Martin’s death at the hands of George Zimmerman, who was a neighborhood watch volunteer. Now imagine a community automatic license plate reader network that issues a BOLO (“be on the lookout”) for a particular car. Then what?

Vigilante justice arises when people feel the usual methods of addressing crime are broken or flawed. In his classic 1975 study “Strain of Violence,” historian Richard Maxwell Brown observed that American vigilantism is an indigenous and deeply rooted part of our shared history. We have a lot of experience with private citizens meting out their own versions of justice, and it is largely an ugly one.

These new technologies prey upon familiar fears—that local police ignore or dismiss crimes important to neighbors—and hyper-charge them with the power of surveillance. The potential concerns they raise are similar to the ones we see as law enforcement agencies and private corporations adopt these tools, but with even fewer guardrails. Neighborhoods armed with Ring videos, Flock readers, and NextDoor posts have the power to create networked engines of suspicion, sometimes ill-founded or erroneous, that may embolden residents to take actions they should not.

And even if neighborhoods armed with ALPR do nothing more than watch and post, the harms are significant nonetheless. The erosions of our privacy are coming from the government, corporations, and now our neighbors.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

 

September 23, 2019

'What Trump Can Teach Us About Con Law,' Episode 33: Obstruction

By Elizabeth Joh

Episode 33 of the podcast "What Trump Can Teach Us About Con Law" takes on the topic of obstruction of justice, in regard to the Mueller investigation and Donald Trump, with a dash of the Martha Stewart case thrown in.

Listen here

 

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June 18, 2019

Want to See My Genes? Get a Warrant

[Cross-posted from the New York Times]

Someone broke into a church in Centerville, Utah, last November and attacked the organist who was practicing there. In March, after a conventional investigation came up empty, a police detective turned to forensic consultants at Parabon NanoLabs. Using the publicly accessible website GEDmatch, the consultants found a likely distant genetic relative of the suspect, whose blood sample had been found near the church’s broken window.

Someone related to the person on GEDmatch did indeed live in Centerville: a 17-year-old high school student. Alerted by the police, a school resource officer watched the student during lunch at the school cafeteria and collected the milk carton and juice box he’d thrown in the garbage. The DNA on the trash was a match for the crime scene evidence. This appears to be the first time that this technique was used for an assault investigation.

The technique is known as genetic genealogy. It isn’t simply a matter of finding an identical genetic match between someone in a database and evidence from a crime scene. Instead, a DNA profile may offer an initial clue — that a distant cousin is related to a suspect, for instance — and then an examination of birth records, family trees and newspaper clips can identify a small number of people for further investigation.

The identification of Joseph DeAngelo in the Golden State Killer case also relied on genetic genealogy. He was charged with 26 counts of murder and kidnapping after a genealogist helped investigators in California identify a third cousin of Mr. DeAngelo’s through GEDmatch and other genealogical records.

While there may be broad public support for a technique that solved serial murders, just because technology allows for a new type of investigation doesn’t mean the government should be allowed to use it in all cases.

Genetic genealogy requires lots of DNA samples and an easy way to compare them. Americans have created millions of genetic profiles already. A 2018 study published in Science predicted that 90 percent of Americans of European descent will be identifiable from their DNA within a year or two, even if they have not used a consumer DNA service. As for easy access, GEDmatch’s website provides exactly this opportunity. Consumers can take profiles generated from other commercial genetic testing services, upload them free and compare them to other profiles. So can the police.

We should be glad whenever a cold case involving a serious crimes like rape or murder can be solved. But the use of genetic genealogy in the Centerville assault case raises with new urgency fundamental questions about this technique.

First, there is now no downward limit on what crimes the police might investigate through genetic genealogy. If the police felt free to use it in an assault case, why not shoplifting, trespassing or littering?

Second, there’s the issue of meaningful consent. You may decide that the police should use your DNA profile without qualification and may even post your information online with that purpose in mind. But your DNA is also shared in part with your relatives. When you consent to genetic sleuthing, you are also exposing your siblings, parents, cousins, relatives you’ve never met and even future generations of your family. Legitimate consent to the government’s use of an entire family tree should involve more than just a single person clicking “yes” to a website’s terms and conditions.

Third, there’s the question of why the limits on Americans’ genetic privacy are being fashioned by private entities. The Centerville police used GEDmatch because the site owners allowed an exception to their own rules, which had permitted law enforcement access only for murder and sexual assault investigations. After user complaints, GEDmatch expanded the list of crimes that the police may investigate on its site to include assault. It also changed default options for users so that the police may not gain access to their profiles unless users affirmatively opt-in. But if your relative elects to do so, there’s no way for you to opt out of that particular decision. And what’s to stop GEDmatch from changing its policies again?

Finally, the police usually confirm leads by collecting discarded DNA samples from a suspect. How comfortable should we be that a school resource officer hung around a high school cafeteria waiting to collect a teenager’s “abandoned” DNA?

All of these issues point to one problem: Police use of genetic genealogy is virtually unregulated. Law enforcement agencies and cooperating genetic genealogy websites are operating in a world of few limits. There are not only few rules about which crimes to investigate, but also unclear remedies in the case of mistakes, the discovery of embarrassing or intrusive information, or misuse of the information.

If these concerns sounds similar to other technology and privacy problems we’re facing, they should. Our genetic and digital identities raise similar questions of autonomy, civil liberties, and intrusion by public and private entities.

Without legal limits, genetic genealogy will become a more popular tool for the police. Rather than wait for the courts to deal with difficult and novel issues about genetic surveillance and privacy, state legislatures and attorneys general should step in and articulate guidelines on how far their law enforcement agencies should go. Congress and the Federal Trade Commission should take further steps to protect the privacy and security of consumer genetic data.

If the police are to be given unlimited access to the genetic information of your entire family tree, they should have it at the end of a public debate, not by default.

May 24, 2019

Episode 32: 'Contempt Power'

What is Congress' contempt power, and how can lawmakers us it to force cooperation with their investigations? Episode 32 of "What Trump Can Teach Us About Con Law" answers these questions.

April 22, 2019

Ep. 31: "Executive Privilege"

In light of all the recent news surrounding the Mueller investigation's findings, episode 31 of the "What Trump Can Teach Us About Con Law" podcast looks at "executive privilege," a term that is relatively new and that rarely has been tested in court.

 

April 1, 2019

A consumer DNA testing company's alarming new marketing pivot

[Cross-posted from Slate.com]

Sometimes a marketing pivot serves a truth-telling function. A new television ad for the consumer DNA database FamilyTreeDNA asks the public to share their DNA with the company not to find out whether they’re at high risk for breast cancer, whether their ancestors were black, or what their Spotify playlist should include. Instead, the father of Elizabeth Smart, who was abducted in 2002, observes that “when a loved one is a victim of a violent crime, families want answers. … If you are one of the millions of people who have taken a DNA test, your help can provide the missing link.”

FamilyTreeDNA makes explicit the use of consumer DNA testing that law enforcement agencies have increasingly relied on to solve cases. When police identified Joseph DeAngelo in 2018 as the suspected Golden State Killer responsible for a series of rapes and murders in California several decades ago, they did so with the aid of genetic genealogy: the combination of genetic matching and traditional genealogical methods. Police uploaded crime scene DNA to GEDmatch, a free service where people submit genetic information (typically from consumer testing services like 23andMe) to find relatives and ancestors. A genetic genealogist combined the identification of those genetically related to the then-unknown suspect with genealogical aids like birth records and newspaper clippings. DNA taken from his trash and car door confirmed the match between DeAngelo and the crime scene evidence.

The two largest DNA testing companies take the position that they will provide customer data only with a lawful order like a subpoena or a warrant. Indeed, 23andMe is explicit in its position of using “all practical and legal administrative resources to resist such requests.” FamilyTreeDNA distinguishes itself by not just allowing law enforcement access to its consumer data but embracing the tactic. It asks consumers to contribute genetic information for the express purpose of helping the police solve crimes.  (If you’ve taken a DNA test elsewhere with a competing company, you can upload your file for free to FamilyTreeDNA.) This marketing shift follows its earlier acknowledgment that the company had already been working with the FBI.  As a result, the company is effectively crowdsourcing criminal investigations.

But when you volunteer your DNA sample, you’re volunteering your genetic family tree, without having asked your parents, siblings, cousins, and distant cousins if they agree. That upends the usual way we think about providing information to law enforcement. You can’t give the police lawful consent to search your third cousin’s house, even if your third cousin (who you may never have met) is suspected of having been involved in a serious crime. Why are we allowing a distant relative to grant police permission to your DNA?

When you volunteer your DNA sample, you’re volunteering your genetic family tree.

And genetic genealogy creates difficulties for the relative who objects to your volunteering the genetic family tree to law enforcement. A woman whose DNA on GEDmatch recently helped lead to the arrest of a second cousin twice removed told a local Iowa newspaper that before she got the test done, her brother raised concerns about getting a family member arrested. But her brother’s objections didn’t mean much.  The consumer DNA companies don’t appear to allow relatives to raise privacy objections to submitted genetic samples. And should a relative later be charged with a crime with the help of genetic genealogy, the Fourth Amendment would be unlikely to allow the relative turned suspect to object to the way he was identified. Even if a relative convinced you that the submission of a DNA sample to a consumer database was regrettable, it turns out that “deleting your DNA” is a very difficult thing to do.

Becoming a genetic informant on your extended family isn’t the only issue here. On its website, FamilyTreeDNA says law enforcement access to its database is limited to cases “identifying the remains of a deceased individual or a perpetrator of a homicide or sexual assault.” Today law enforcement agencies appear to be relying on these consumer DNA databases for long-unresolved homicide cases. And few would object to solving the Golden State Killer case, which involved dozens of violent crimes spanning more than a decade. For now, the genetic genealogy used in that case is time-consuming, and following all of the potential leads raised by a partial DNA match takes considerable police resources.

But if history is any guide, these means will become easier and cheaper to use.  Police already use direct DNA matches to solve crimes like auto theft and burglary.  Imagine if a distant relative’s decision to submit DNA led to your 13-year-old self being arrested for spitting on the bus.

Perhaps you wouldn’t object. Perhaps you think everyone committing a crime, no matter how minor, should be caught. Then, legislators should have a direct and open conversation about a population-wide database: a DNA sample compelled from every person in the United States for the purposes of law enforcement. If that is the goal, we should arrive there directly, not as a de facto matter.

And that leads to perhaps the biggest question raised by FamilyTreeDNA’s ad spot. These are urgent questions about the proper balance between privacy and law enforcement and individual and familial rights. Yet it is a private company making these policy choices, changing the conversation, and shaping its terms. Few would respond well to the question: “Join us as a genetic informant!” But many will likely be moved to “help bring closure to families and victims.” Nor should we forget that while contributors may feel altruistic, the company has many motives. Although uploading your genetic file is free, you can “unlock” all of the company’s features for only $19.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

January 2, 2019

Episode 30: "The 25th Amendment"

The latest episode of the "What Trump Can Teach Us About Con Law" podcast explores President Grover Cleveland's secret surgery, the 25th Amendment, and what the Constitution tells us about presidential fitness, disability and President Donald Trump.