The Wireless: Law Enforcement's Secret Partnership with Phone Companies Makes Everything Transparent Except the Law

The Wireless: Law Enforcement's Secret Partnership with Phone Companies Makes Everything Transparent Except the Law

In November, U.S. District Court Judge Susan Illston dealt five consecutive life sentences to Joseph Ortiz, a shot-caller in South San Francisco's 500 Block gang — one in a coterie of Norteño cliques that spun off the 1960s prison gang Nuestra Familia. Ortiz and a group of co-conspirators were charged with two drive-by shootings during one week of December 2010. Their targets were suspected rivals from the Sureño gang. Three people were killed, six others were wounded.

Ortiz pled guilty to the murders and a battery of other charges, including armed robbery of a South San Francisco jewelry store and a 7-Eleven in Pacifica, along with obstruction of justice — he'd fled to Mexico shortly after the shootings but was apprehended in the Bay Area two years later. U.S. District Attorney Melinda Haag then indicted 19 of his associates from the 500 Block and nearby C Street Gang for serving as accessories. By all appearances, one of the Bay Area's most notorious outfits had been snuffed out.

Then the case took an unexpected turn.

Five of Ortiz's alleged associates shuffled into Illston's courtroom on Dec. 20, 2013, wearing Alameda County Jail uniforms and improbably smug expressions. Four were armed with a highly technical argument that could either be a game-changer or a futile Hail Mary pass. They claimed that federal investigators had used a little-known spy program to nail them in a violent gang case. Similar to the NSA's wholesale effort to gather call records from millions of Americans, this one is aimed specifically at drug traffickers and violent criminals. It's harder to condemn, but gets caught in the same ethical snags.

The men standing before Illston were accused gang members; three were charged with murder. Yet they'd also become unlikely torch-bearers for civil liberties.

Evidence suggests the government bolstered its case, in large part, from phone records procured from AT&T and Metro PCS, which not only linked Ortiz to the other defendants, but also revealed the approximate location from which each call was placed. By extrapolating from troves of caller data, law enforcement was able to map out the movements of every alleged 500 Block member over a period of several months. The vast constellation of interconnected cellphone numbers spoke volumes.

Investigators had relied on a program called the Hemisphere Project, a partnership between various federal and local law enforcement agencies and AT&T that launched around 2007. The project is employed nationally, but appears to be based in California and deployed for criminal investigations throughout the West Coast, as demonstrated by a series of training slides leaked to The New York Times in September.

Hemisphere spawned from the theory that call patterns resemble a fingerprint — that calling behaviors to certain numbers, at certain times, are so telling that that they can identify a person regardless of what phone number he's using. Mark Eckenwiler, a D.C.-based federal prosecutor who's now a privacy attorney, explains how it might work in the context of an investigation: "We've got Person A and Person B," he says. "A is the target. B is the person he talks to all the time. If A and B don't sync up the changes on their phones — say, A replaces his phone, and B's doesn't change — then between 2 and 4 a.m. when you see B calling some new number, he's probably calling A."

By doing a back-end analysis of scores of phone records at the same time, investigators can trace those patterns and find the thread, even before they procure an official court subpoena (which are often time-consuming, require court authorization, and have to target one phone number at a time). Safer and more efficient than traditional modes of investigation, Hemisphere probes don't require the cops to put a human informant at risk, or bust down the door to a stash house and risk an armed confrontation. It's a way to apply the principle of NSA data sweeps to drug busts, using an intricate paper trail to reveal the hidden connections between criminals.

That might be an easy sell when the cops are taking down bad guys. But attorneys at the American Civil Liberties Union and the Electronic Frontier Foundation argue that it also smacks of an extra-judicial shortcut. That, given wider acceptance, it could erode our constitutional rights.

A small cadre of EFF and ACLU attorneys sat in Illston's court to watch the December gang trial hearing. Some of them had filed friend-of-the-court briefs to denounce Hemisphere in other criminal cases, so they already had a dog in this fight. The 500 Block gang case might not itself be inherently political, but it could have bigger stakes as our desire to lock away criminals bumps up against our expectations of privacy.

That's the contention of EFF staff attorney Hanni Fakhoury, who says that even if Hemisphere was spawned in the realm of criminal prosecutions, it's now plugged into our national conversation about NSA tracking. "The issue is really at what point does technology evolve to let the government make shortcuts?" he says. To him, the logic behind Hemisphere is uncannily similar to other modes of surveillance. The government believes it has a better chance of finding individual terrorists by sifting through an ocean of raw materials; similarly, drug prosecutors think they can trace criminal relationships by analyzing hundreds of thousands of call records.
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What is VERY key about this article is - like every other policing "innovation" tried out on the worst-of-the-worst™ in "extremely limited" situations, it will inevitably become the routine go-to tool in law enforcement's quiver.

You can't invest millions without trying to amortize its costs. You can't justify these vast sums for "only" less than a score of worst-of-the-worst™ bad guys. You can't get additional funds - or even keep an existing program running at current levels - without new worst-of-the-worst™ bad guys to target. Or even, meh-of-the-meh college protesters, former Occupiers or folks unsure whether gentrification should be allowed to be an unrestrained hurricane stripping San Francisco's soul bare with nary a complaint or picket.

Remember a decade past when we'd see armored police using military tactics and armored personnel carriers to perform the simplest tasks and think, "What a horrible country; lucky it's not here."? Now everyone -or someone's grandmother next door - potentially abusing a Medical Marijuana permit faces these full-throttle, military-grade tactics. Same with Asset Forfeiture laws. Coming soon, same with aerial drones. Etc. 

Today it's a bunch of crack-dealing, meth-slinging murderers. The very same Hemisphere technology will DEFINITELY be used for the next protest, the next net-based defense of the next Edward Snowden or the next peaceful demonstration suggesting perhaps - just perhaps - the needs and concerns of us 99% might also be considered when setting policies and enacting laws.

Nip it now, before it's you in its crosshairs.


This technology successfully helped send three SF murderers to prison for life... They are detailed in a previous story by the SFWeekly entitled "The Dark Prince".  The whole story can be found at Until Someone Gets Hurt dot com.  If it helps puts the bad guys away, then I say use it!!!

Federale topcommenter

LOL, liberals and immigrant drug gangs working together to spread drugs and crime.  

Prachi Singh
Prachi Singh

Arpan Bajaj I thought this was you for a sec hahah

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