Meaning the cops pored through phone records to find those "fingerprints" of calling behavior, and traced the patterns to 20 individuals.

"The fact that the government's affidavits nowhere mention Hemisphere or other surveillance programs is not surprising," Fakhoury and Lye write. As the training slides indicate, "All requestors are instructed to never refer to Hemisphere in any official document" — just as DEA agents who harvest information from NSA surveillance are supposed to ascribe it to some other source, even if they have to independently re-create the investigation.

It would seem the people hired to track other people's trails take pains to conceal their own.

No one has yet proven that investigators used Hemisphere to launch their indictment in U.S. v. Diaz-Rivera the way they apparently did in U.S. v. Ortiz. The outcome of the December hearing is still pending, and it may require several rounds of hearings before the defense can prove a Fourth Amendment violation and get evidence tossed out — if that's even possible. But if Fakhoury and Lye's theories are correct, then San Francisco may have become a new world stage for the data collection and civil liberties debate. The notion of two concurrent Hemisphere prosecutions in one city also illustrates how common the program might be. It could be standard operating procedure in federal investigations, even if the feds emphatically deny its existence.

Fakhoury shies away from blanket judgments about the program's prevalence, especially given how little he know about it. "What I will say is that law enforcement routinely uses cell phone records in big complex criminal cases... and Hemisphere facilitates access," he says. It doesn't afford the all-hearing power of wiretap, but it's obviously a potent tool. And because it delegates broad investigative duties to telecom workers who aren't versed in statutory law, it could be dangerous.


Eckenwiler has seen plenty of cases in which a phone company blindly hands over records that it should have kept private.

"I certainly saw this from time to time while I was at the Department of Justice," he recalls. "It's sort of like saying 'Jump,' and the recipient asks 'How high?' while they're on the way up."

If a company like AT&T oversteps its bounds — which seems a lot more likely in a Hemisphere Project search than in more traditional searches — then it becomes vulnerable to a lawsuit. Or it could be at least partly liable for hampering a massive drug or gang prosecution.

That won't help Joseph Ortiz, the 500 Block gang leader who will spend the rest of his life in jail. But it could weaken the cases against some of his associates. After the Dec. 20 hearing in U.S. v. Ortiz, Judge Illston issued an order compelling prosecutors to hand over all their correspondence with phone companies. If Andersen's suspicions are correct, those missives could constitute a breakthrough for the defense. They could also reveal volumes about modern criminal investigations.

If Illston and other U.S. District Court judges decide to jettison evidence procured through Hemisphere, then the government might have to refine its approach. Or, if judges start upholding Hemisphere evidence, they might empower the government to search deeper into our personal information.

Fakhoury believes that the courts may have to draw sharper privacy boundaries — and even reconsider prior rulings — at a time when technology is moving much faster than the law. Smith v. Maryland, the 1979 Supreme Court case that stripped phone calls of certain fundamental privacy protections, was decided in an era when people still used land lines, and had no Internet — so even the most thorough phone records search only represented a small snapshot of a person's activity — nothing like the fine-tuned fingerprint that phone records reveal today.

"There's just no way the judges at that time could have anticipated what's happening today," Fakhoury says. "Now the data trail we're generating is way greater, and they know where you are when you've gone outside your house... and the government just has direct access to everyone's phone-data stream and can get into it willy nilly."

And, he says, phone companies are doing whatever they can to help connect the lines.

« Previous Page
 |
 
1
 
2
 
3
 
4
 
5
 
All
 
My Voice Nation Help
5 comments
trai_dep
trai_dep

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.

UntilSomeoneGetsHurt
UntilSomeoneGetsHurt

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
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

 
©2014 SF Weekly, LP, All rights reserved.
Loading...