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Help Me, Electronic Surveillance, You’re My Only Hope!

November 17th, 2010 · 30 Comments

Proof, if proof were needed, that whatever higher power might be steering our fates must be possessed of a perverse sense of humor: I have spent the better part of five years writing about the ways sophisticated electronic surveillance tools, in the hands of intelligence and law enforcement agencies, might pose a threat to privacy and civil liberties. Now I find myself urging my own local police department to be more aggressive in the use of those tools. Not, of course, that I have ever had a problem with the appropriately targeted use of such methods, subject to judicial oversight, as part of legitimate law enforcement investigations. But I can’t help seeing a trace of irony at finding myself urging the Metropolitan Police Department to seek an order under the byzantine Electronic Communications Privacy Act, which I’ve devoted so many words to criticizing.

It started with an open window. Stumbling from my bedroom in my typical bleary, pre-caffinated state Tuesday morning, I was befuddled to feel a blast of cold air blowing through a gaping living room window that I had no recollection of having opened the night before. But I shut it, shrugged, and proceeded to shower and dress. It was only a bit later, hunting about with increasing frustration for my wallet and shoulder bag—hadn’t I left them right on my desk chair?—that I noticed the depressing rectangle of pristine black lacquer in the thin patina of dust covering the base of my television stand. It was a precisely Playstation-sized rectangle. I could be quite certain of this because I had, until just a few hours earlier, been the owner of one.

I’d always taken a measure of comfort in my buiding’s position on the edge of a moderately busy traffic circle—exposed enough, I thought, to deter most prospective burglars. Unfortunately, the local power company had been doing some work—protracted far beyond the initial estimate—upgrading our electric hookup, with two unfortunate consequences. First, their digging had left a mound of packed dirt outside a window normally a bit too high for the average person to easily reach. Second, they’d stretched an enormous tarpaulin over the work area to guard against rain—with the side effect that anyone perched under the window on that mound of dirt could now take the time to force it open without making too much of a spectacle of themselves. So thank you, Pepco.

The police arrived and duly dusted for fingerprints, but I wasn’t holding out any hope of recovering anything until it occurred to me a few hours later that the PS3 is, after all, a network device with a unique MAC address—and a lot of the cool stuff you can do with it requires connecting it to a network. A little Googling and, sure enough, Sony has the capability, at the request of law enforcement, to flag a stolen system using the serial number (which I still had on the original box) and record the IP address from which it’s connected—even if the thieves (or an unwitting buyer) wipe the machine and try to create a new account. From there, you’re a mere subpoena away* from getting a physical address from the Internet Service Provider. The folks I spoke to at MPD hadn’t encountered this approach before—Sony doesn’t seem to advertise it too widely, perhaps because they’d prefer I just bought another PlayStation—but seemed willing to look into it. Which means, I suppose, that spending as much time as I do thinking about the ways people can be tracked online could wind up having some direct practical benefit.

Another trackable bit of tech the thieves made off with was the SmarTrip card in my wallet. It was only Wednesday morning that I got around to e-mailing the good folks at Metro to ask them to cancel my card and send a replacement. Might one of the crooks have tried to use it?—I wondered. Well, it turned out someone had—and Metro was able to tell me the precise minute that person swiped themselves in at the Van Ness station, and then swiped themselves out at the Shaw station. And come to think of it, didn’t I read just about a year ago that WMATA had gotten a grant to begin installing surveillance cameras on buses and at Metro stations? How many people could there be swiping in and out at those precise stations, at those precise times, on a Tuesday afternoon in November? A comparison of any footage that exists from the two Metro stations at the time the card was used could yield at least a fuzzy image of the person who used it—quite likely the burglar.

I passed all this information on to the police—though all along with that scene from The Big Lebowski playing in my head: “Oh sure, I’ll just check with the boys down at the crime lab… they got us working in shifts!” Police in Washington DC, after all, have plenty of more serious crimes to worry about. Still, there has been a recent spate of burglaries, car break-ins, and muggings in my neighborhood—and plenty of locals believe it’s one or two groups of people responsible for most of them. If their little spree continues, sooner or later they’re likely to break into a lighter sleeper’s home, at which point it’s not a great stretch to think someone might end up getting hurt. So I’m hoping they may decide that finding the culprits is worth more hassle than my isolated burglary alone would merit.

So there you have it. In part because I spend my days thinking about the creepy potential of modern surveillance technologies—and warning against the potential harms of going too far with them—I now find myself hoping the DC police are prepared to go further down that avenue than seems to be customary for a garden variety burglary. If it does manage to get my PS3 back, though, I’ll be willing to love Big Brother just this once.

* I originally wrote “a §2703(d) order away”—that’s the catchall provision covering non-content communications records, and requiring an application to a judge advancing “specific and articulable facts.” But on second thought, the only records the police would really need in practice—the device IP from Sony and the service address from the ISP—are classed as “basic subscriber records” under 18 USC §2703(c)(2), so a mere subpoena should suffice. If I wrote the laws, I’d probably actually want the higher standard to apply to much of that info because of the potential First Amendment implications of revealing the identities of anonymous speakers, though obviously in this case either would be readily met.

Tags: Privacy and Surveillance · Washington, DC


       

 

30 responses so far ↓

  • 1 frouglas // Nov 17, 2010 at 7:29 pm

    Good luck getting your stuff back… but I wouldn’t hold out much hope for the tape deck. Or the Creedence.

  • 2 Jesse Walker // Nov 17, 2010 at 7:30 pm

    Good luck finding the thief, Julian. There’s a joke in here somewhere — “A ___ is a libertarian who’s been burgled” — but I haven’t quite found it yet.

  • 3 Megan McArdle // Nov 17, 2010 at 7:55 pm

    How shitty. So sorry.

  • 4 silentbeep // Nov 17, 2010 at 7:59 pm

    Just this once? Lol. Oh the irony!

  • 5 Nylund // Nov 17, 2010 at 8:02 pm

    I’ve been burgled once and mugged at gun point twice. Never have the cops cared. Heck, they actually accused me of breaking into my own apartment and faking the robbery.

    I found out from my phone company that one mugger used my cell phone to order a pizza and have it delivered. I suggested to the cops that they get the address for the delivery from the pizza place. I got the “Big Lebowski” treatment.

    I guess that was better than the 2nd mugging. Despite three witnesses calling 911 as it was happening, the cops never even bothered to show up.

  • 6 Alex Massie // Nov 17, 2010 at 8:30 pm

    Sorry to hear of this. But, yes, grimly ironic. Also: fascinating!

    When my house in DC was burgled the cops also initially refused to believe that I hadn’t faked the robbery too.

    After they dusted for prints, well, that was that. Which didn’t surprise me but was still a leetle disappointing.

    Good luck with doing their job for them.

  • 7 Jason Kuznicki // Nov 17, 2010 at 9:34 pm

    Good luck with it. We were burgled shortly after moving to our house in the ‘burbs. It happens everywhere.

    We think they were after the pain pills of the old folks who lived there before us. They never were caught, but there was a string of pharmacy robberies at the same time, so it does seem plausible.

    I don’t see much irony here though. With appropriate judicial review, throw whatever you can at ‘em. This was for once a genuine crime, not just a “hey better safe than sorry” routine.

  • 8 PJM // Nov 17, 2010 at 9:39 pm

    Don’t expect much from the DC police. We actually knew who had burgled our house in Takoma, and they still didn’t care. He was caught eventually in a big gun-and-drug raid at a house around the corner – long after we had moved away to a quieter part of the world. And we never got our stuff back, which included all our photos of our daughter’s first year of life. Sorry this happened to you. But the thing is, there are appropriate uses of tracking and surveillance, and it’s good to get some perspective on that. OTOH, the appropriate uses are seldom the ones that are implemented. Especially by the DC police.

  • 9 John // Nov 17, 2010 at 10:53 pm

    When I was living in Spokane two years ago, I successfully hunted down a dude who broke into my apartment and stole my computer and camera. It turned out that he had attempted to access MySpace from the stolen computer. I got the Spokane police interested (it helped that the leading suspect had a warrant for an earlier offense), and, two warrants later, the perp was in custody and I had my stuff back. Best wishes on a similarly successful outcome.

  • 10 Freddie // Nov 17, 2010 at 11:21 pm

    I’m very sorry about all that; it sucks. All the best with your efforts.

    As far as the cops go, you’re white, and relatively affluent, so you are far more likely to be taken seriously than the large majority of those who are the victims of crime in DC.

  • 11 Jerry // Nov 18, 2010 at 7:22 am

    Woah. You’re like Dr. Octopus.

  • 12 Jeffrey // Nov 18, 2010 at 9:06 am

    “…which means, I suppose, that spending as much time as I do thinking about the ways people can be tracked online could wind up having some direct practical benefit.”

    And also unfortunately probably means that the cops aren’t thinking much about practical ways to solve crimes or the legal tools given to them.

  • 13 Another perspective // Nov 18, 2010 at 9:07 am

    For what it’s worth, you should know that the cops’ ability to track your property is significantly degraded by the very privacy protections we all support. Sure — they can get an SCA order. But that takes a lot of work compared to a Grand Jury subpoena (which Congress has deemed insufficient). That means that cops and prosecutors with lots of cases and little time are relatively unlikely to get the SCA order — which means your stuff is less likely to be found. Just one of the (probably justified) tradeoffs we make to protect privacy.

  • 14 Julian Sanchez // Nov 18, 2010 at 10:01 am

    Actually, I was writing a little too quickly — for the kind of “basic subscriber records” we’d be talking about, a subpoena actually ought to suffice [see 18 USC 2703(c)(2)] — but if basic judicial oversight is enough of a barrier that it means these tools don’t get used for minor crimes like this, well, so be it.

  • 15 Electronic Surveillance: Good and Bad Sides - Hit & Run : Reason Magazine // Nov 18, 2010 at 10:33 am

    […] week he writes a revealingly ironic, nuanced and detailed account of how some of those very same tools he is […]

  • 16 Dave // Nov 18, 2010 at 12:43 pm

    To Nylund (and anyone else interested):

    I used to be a private investigator. As such, I did not have access to the tools used by the police, and had to actually think instead. In your case where your stolen phone was used to order a pizza for delivery I would have used the following “Trick”:
    1) Call up the pizza place and ask to place an order for delivery.
    2)They’ll ask for your phone number.
    3) Give them your stolen phone’s number.
    4) They’ll come back with, “Is your address still 123 Nasal Passage, Anytown USA?”
    5) If that’s not your address, *bingo*!

    I used to use that one a lot when I needed an address and all I had was a phone number. Works most of the time!

  • 17 Dave // Nov 18, 2010 at 12:52 pm

    I should clarify; that worked on the big national chains where they take your order via computer.

  • 18 Balloon Juice » Blog Archive » Loving Big Brother, just this once // Nov 18, 2010 at 2:11 pm

    […] Sanchez was burgled and thinks that possibly law enforcement can track down his stolen PS3 using its built-in tracking […]

  • 19 Rick // Nov 18, 2010 at 9:23 pm

    How ironic, very very libertarian of you.

    Nonsense is all you’re talking. Get a new PlayStation and go on with your life.

  • 20 Julian Sanchez // Nov 18, 2010 at 11:47 pm

    People in my neighborhood are afraid because there have been so many break-ins and muggings around here recently. I’d kind of like the people responsible to be caught. Sorry if that offends you.

  • 21 KWG // Nov 19, 2010 at 10:26 am

    What’s the takeaway here? If the tools you’ve written about as being dangerous aren’t being put to “good” use, then what are they being put to use for?

    Or is this just a matter of police deciding that distributing resources to your case is a waste? Would it really be as easy as you say for police to track down the culprits?

  • 22 Friday Links | The Agitator // Nov 19, 2010 at 12:20 pm

    […] Juice reaches new depths of libertarian-bashing hackery. It’s probably better to first read Julian Sanchez’s thoughtful post before reading the Balloon Juice reaction, which is really the intellectual equivalent of sitting […]

  • 23 Julian Sanchez // Nov 19, 2010 at 1:25 pm

    Kevin-

    There’s some paperwork, but yeah, it actually wouldn’t be that difficult — we’ll see if they decide to follow through on the suggestion.

    And mostly electronic surveillance is a big part of drug, organized crime, and child porn cases, with the bulk being done by federal agencies and a few big depts with the in-house expertise to navigate ECPA. I assume that for 99% of the crime most urban police depts they deal with, the only tracking tech question that really applies is “can we geolocate a stolen cell phone before they ditch the SIM?” — so I’m not exactly shocked this stuff wouldn’t be part of the arsenal yet.

  • 24 Rick // Nov 19, 2010 at 8:58 pm

    Well, yes it does bother me.

    If THAT had been the point of the story, it might have made sense. But it wasn’t the point of the story.

    Your very precious PlayStation was the point of the story.

    Get a new one.

  • 25 Julian Sanchez // Nov 19, 2010 at 9:04 pm

    (1) I’m glad you live in a world where everyone can afford to “just buy another one” like it’s a pack of chewing gum. Must be nice.

    (2) I don’t expect anyone to play a little violin for what is, in the grand scheme, a pretty minor misfortune. But really, someone writes about getting their apartment broken into and their stuff robbed, and your first instinct is to click over and charge into the comments just to make snarky comments about it? That is some epic, Paladin-Level douchebaggery. Your parents must be so proud.

  • 26 MBH // Nov 21, 2010 at 6:57 am

    Wouldn’t hold out much hope for the shoulder bag though.—-Or the Credence.

  • 27 Ravi // Nov 21, 2010 at 12:02 pm

    What about stolen navigators?
    How on earth people manage to use them without being tracked?

  • 28 RickRussellTX // Nov 22, 2010 at 12:08 am

    There’s not a thing un-libertarian about firm and prompt enforcement of property crimes. Property rights and law enforcement are foundational principles.

    With that said, I worry about this statement:

    “Police in Washington DC, after all, have plenty of more serious crimes to worry about.”

    With that attitude, they’ll always have more serious crimes to worry about. People made fun of David Dinkins and Benjamin Bratton in New York for investigating crimes like mugging and vandalism. But enforcing on those crimes sends a signal to the “big criminals” that they are not welcome, they’re next, and this part of the city is about to get very unpleasant for them.

    That was an investment in infrastructure that turned New York into one of the safest large cities in the US and the world, and started an economic upturn for the city that continues to this day.

    See, for example:

    http://www.city-journal.org/2009/nytom_nypd.html

    Intelligently-applied law enforcement benefits everyone, rich and poor. Property rights should apply the same protections to all.

  • 29 jared // Nov 29, 2010 at 2:06 pm

    RickRussellTX

    Um, there was a little bit more than just enforcement of property crimes going on in that city. As for the article you linked to, it was hardly an example of nuanced analysis. It sounded just a few notches above the analysis of a Bill O’Reilly.

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