05/19/16 – Jay Stanley – The Scott Horton Show

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Anyway, introducing Jay Stanley.
He is a senior policy analyst at the ACLU and, oh, at their speech privacy and technology project.
And he's the editor of their Free Future blog.
And here he's got a great article co-authored with our friend Matt Harwood at Tom Dispatch dot com.
We'll run it tomorrow on anti-war dot com under Tom's name as well.
It's, again, Harwood and Jay Stanley.
Welcome to the show.
How are you doing, Jay?
I'm good.
Thanks for having me on.
Very happy to have you here.
And a very important article.
And everybody, you know how it works with Tom.
There's always two titles, at least, sometimes three.
Policing the Dystopia and Power Loves the Dark.
Can't you see the writing on the touch screen?
You know, I think I can.
Let's start where you guys do.
The Task Force on 21st Century Policing.
Boy, that sounds like something I prefer they wouldn't even ever put together in the first place.
But go ahead and tell me the bad news, Jay.
Well, the Task Force on 21st Century Policing was, you know, a task force that was brought together in response to things like the Ferguson mess and other things and made a number of recommendations about how we can improve law enforcement in this country.
And actually, a lot of those recommendations are very good.
We at the ACLU testified at the task force and participated in it.
One of the things the task force looks at is, you know, body cameras, police body cameras.
And they recommend that police body cameras be, you know, looked at or used as a way of increasing transparency of policing.
And one of the big issues that we're having with law enforcement and government, as always, is they have to be dragged kicking and screaming into providing transparency into what they're doing.
And body cameras were supposed to be a means of doing that for police officers.
And yet we're seeing in many places around the country that promise, that premise behind the use of the technology being betrayed by police departments who are refusing to release the video that's created by body cameras of different incidents.
Yeah, let's stick with that one for a minute because this is one where it's a real double-edged sword, but it's obviously understandable why people, why civil libertarians and Black Lives Matter activists and whoever else feel like they have their back against the wall, where the cops are just getting away literally with murder daily in America.
And so, well, geez, maybe if we make them wear cameras, then at least we'll have a fighting chance, because there are some examples where, boy, does the footage not match the story that had been agreed upon.
You know, like we saw with Walter Scott, for example, and many others, obviously.
But then, of course, that comes with, if not yet, obviously very soon, the cops, body cameras will be scanning all of our faces as we're walking up and down the street and checking us against God knows what database.
And, you know, we'll all be living in minority report in order to hopefully protect us from being executed on the side of the road.
When then, as you're saying, they don't really have to release the footage anyway, if they don't feel like it, because they're the ones in charge of investigating themselves.
So they don't really necessarily have to use the footage in any way that enhances accountability at all.
It just subjects us to even more tyranny on their hand, you know, at their hands.
Yeah, I mean, we support body cameras if they're done right, but that could be a big if.
And, you know, I think that body cameras in some ways, you know, the reason that everybody's talking about police abuse, police killings, Ferguson, all the rest is, you know, these are not new problems.
Martin Luther King talked about the problem of, you know, poor minority people, especially being abused by police officers.
It goes back a long way.
But the reason that's part of our national conversation, arguably, and, you know, who knows, historians will argue about this, but it's because everybody's seeing videos online and that there's a, you know, that there had been a sort of a naivete about police officers, especially in, like, you know, white middle class communities, people who had not really had worse encounters with a police officer than maybe, you know, a guy being rude or something.
But, you know, so I think that there is a potential for them to help things if it's done right.
And we certainly are vehemently and will fight to the tooth and nail against the use of face recognition.
But it is a real danger that that's where this technology is going to come.
And this technology is going down the tracks, whether any of us support it or not.
So we're trying to make sure that it's done right.
And one of the crucial things is that, you know, if there's footage of a use of force or there's a complaint against a police officer, you know, it should be made public.
It should be made public.
Yeah, well, and you're absolutely right about that.
And it took till Mike Brown was what finally opened the floodgate.
But, you know, something we talked about on the show for a long time is I would have, you know, friends of mine who are, you know, old, old friends who aren't really political people at all.
And they would say to me all the time that, man, you know, what is going on with the police?
Because I look at my Facebook feed, you know, it's not NBC ordering the news for us anymore.
It's our friends and family deciding what we see.
And people are just completely beside themselves.
They couldn't believe it.
As you're saying, they're really shocked to find out that, wow, it's really like in the worst accusations on a daily basis around here.
The cops getting away literally with murder.
See it all the time.
It's on the front page of the Austin American Statesman yesterday.
Another cop gets away with killing somebody else around here.
It's like a sport in this town.
Yeah, yeah.
And I think, you know, in addition to that, you know, what we're seeing is that the police are using a lot of new technologies is what we talked about in this article.
And, you know, these technologies are very powerful surveillance devices.
And, you know, surveillance is a form of power.
If the police know everything you do, guaranteed they can find some law you've broken.
There are thousands of laws on the books, a lot of obscure ones.
You know, maybe you're carrying some leather in your wallet that's like, you know, it's some rare animal and you didn't know it and it's felony to own it.
And so.
The integration of the databases there is what you're really getting at, where, you know, the traffic camera is directly connected to the IRS and everything.
Is connected, as you're saying, federal regulators on on leather wallets, their data right in the pocket of the local police that pull you over for speeding in a school zone or whatever it is.
I'm like, oh, sorry, you're busted for your it's going to be like that.
And in a land where does anyone have a count of how many criminal statutes there are in America, state and federal combined, something on the order of 500 million or something more than there are humans in the society.
That's for sure.
Yeah.
I mean, if that's if that if it's actually possible to enforce those laws against, you know, everyone, then it could be anyone at any time.
Basically, they can just go fishing and go pick on anyone they want and find anything on you.
Yeah, that's one of the reasons why surveillance is power.
And we have to be very, very careful and thoughtful as we know all these new surveillance devices come online as part of this great technology revolution we're living through.
But the police want to use them, too.
And we need to figure out, you know, so the question is always, well, you know, we do want our police to, you know, actually stop real bad crimes.
And we want to give them the tools to do that.
But at the same time, we need the checks and balances.
We need to make sure that, you know, that the more power they have, the greater the checks and balances are.
And a lot of these decisions, like should the police be using, you know, face face recognition?
Should they be using license plate recognition?
If they do use license plate recognition, should they only be looking for cars that are on the hot list?
Should they be keeping track of everybody and putting everybody's numbers in a database?
These decisions should be made democratically and openly.
These are decisions that should be made by the people, not by the police on their own, arrogating these decisions, making them in public.
And this is why… And they never are, though.
I mean, at best, we have the ACLU to sue the bastards after the fact to try to put them back in line.
But have you ever heard of a municipality that held a vote on whether they were going to put up cameras on every street corner?
They just did it.
As soon as they're cheap enough to do it, they just did it, on every street corner in the land.
You know, it took like six years or something to get to finish.
Well, we're not quite there yet.
But yeah, I mean, the police, the cameras are going everywhere.
And part of the reason is that, you know, a lot of these police departments are getting grants from the federal government.
So some big bag of money lands in their lap from the Justice Department.
And they don't have to go to their local city council and get approval from the elected representatives to get the money for these surveillance technologies, not just cameras, but also, you know, license plate recognition, sting rays.
It goes on and on.
So, you know, we need transparency here.
And some of the ACLU affiliates have been proposing legislation, which we think is a really good idea, that requires the police, if they're going to start using a new surveillance technology, to get permission from their local Democratic overseers and prevent them from just doing what's sometimes called policymaking by procurement.
You know, you need a policy decision here.
Well, we're just going to make that decision by just buying it.
Right.
And starting to use it.
Hey, that's a good phrase.
I hope I can memorize that for later.
Policymaking by procurement.
Well, we got this tank, so we don't want to leave it sitting in the garage.
So we're going to bring it on every warrant service that we do from now on.
Yeah.
Yeah.
Boys with toys.
There's a lot of that going on, too.
And that's one of the reasons why.
And so, you know, this article that we've written is just about how police departments are resisting transparency.
Number one, transparency is more important than ever, as I was saying.
And number two, police departments are resisting transparency, sometimes in ridiculous ways.
Well, and, yeah, let's talk about that, especially in terms of the Stingray device here.
This is where the cops have – I guess they fly around in a plane usually or however they do it.
They mimic a cell phone tower and they can track all kinds of information from people's cell phones and, I guess, listen in if they want and who knows what.
But as you guys illustrate in the article, they routinely refuse in court to really discuss this.
And it seems like something that was a scandal when we first heard of it, that, wow, there's this thing, parallel construction, where the DEA is breaking the law to surveil people.
Or at least they're surveilling people in a way where they can never use the evidence in court anyway, never mind what rules they change to allow themselves to do it.
But then they just whisper and pass on that information to other cops, but they say you have to make up your own probable cause for stopping the guy.
It's parallel construction.
But now the way you guys describe some of the testimony in the court cases and whatever, it sounds like parallel construction is just an official part of the policy now, that this is how they do it.
They can use any lawless means of surveilling you as long as they can come up with a lawful, plausible excuse for how their investigation began later on when it comes to telling the story in court.
And even if the judge calls him out, he'll just say, screw you, judge, and refuse to come off with the information.
Am I really understanding that right?
That's what they're trying to do.
They can't do it under the law and under the Constitution, but they're trying.
But yeah, you are understanding it right.
Parallel construction is basically the construction of a parallel story for how law enforcement got information that they really got through a highly controversial technology that they don't want to have to run by the public.
In this case, yes, the Stingrays, which are fake cell phone towers.
They're basically like the children's game Mother May I.
The cell phone tower sends out a signal like – I'm sorry, like Marco Polo.
Marco and every cell phone within range that's on the network says, Polo, and here's my ID number.
The police can suck up information about large numbers of people beyond the person that they're looking for.
And there's a huge potential for abuse in that.
And we're seeing weird things like police departments having the marshal service sweep in and take records, take over records that we've lawfully requested under open records laws in states.
And so – and refusing to testify about the technology in front of judges saying that they've signed nondisclosure agreements as if a nondisclosure agreement trumps legal requirements and the rights of defendants in court.
And so it's just – it's highly irregular, if not illegal, and weird.
And it just goes to show what the – how much impulse for secrecy there is in law enforcement around new technologies.
Of course, law enforcement has the right to keep like the details of a particular investigation.
If they're investigating somebody they suspect of wrongdoing, of course, they have that right to keep that secret.
But when it comes to the actual tools that they use, a lot of law enforcement seem to think that they have the right to keep that secret from the public.
But the public and the public – or democracy, the public gets to decide what law enforcement gets to use and what it doesn't.
Yeah.
Well, you know, it's just like Neil Postman wrote in his book Technopoly, which I talk about all the time because it's one of the only real smart guy books I ever read.
Usually I just read current events and stuff, you know.
But he makes all these brilliant points about the role of technology in our society and how the old law that was written in a time when the government wasn't really that much more powerful in real terms than the population.
And they basically had to concede to a bill of rights and that kind of thing.
That old law is all we have left protecting us because our culture isn't hellbent on liberty enough to protect us.
And the cost, just the simple dollar cost of all these technologies is dropping so rapidly that they can all be implemented so widely.
But you have little caveats.
This is something you guys mentioned in your article too.
You have little caveats where, for example, the courts have said, OK, you can put surveillance cameras everywhere.
But you can't put microphones on them in public places because people assume that they can still have a conversation amongst themselves in a public place that other people can't hear.
And so that should be the same standard.
And so the courts have ruled that.
And yet there was just a story the other day about how they're wiring up what, Boston?
I forgot what town it was.
I think it was Boston that the feds are wiring up with microphones.
And you guys mentioned something about microphones in public places here, I think, on transit and that kind of thing.
So, I mean, I swear, and you know this and that's why you're there.
But there's basically there's the Bill of Rights and there's the ACLU and then there is the totalitarian police state.
And basically you guys suing them and trying to get the courts to limit the executive branch is basically the only thing we've got.
And we don't even really have that because they redefine all these terms as fast as they can, as much as they can.
But that's, you know, you are literally the Dutch boy with his finger in the dike here holding this whole thing back.
Because without that old law and they, you know, just go ahead and pass the Reversal Freedoms Act of 2017 or whatever and just forget it.
There's virtually no limit to how these technologies can be implemented.
And I don't know if you want to comment on that or if you.
Well, it sounds like an interesting book.
I'll have to check it out and read it.
Yeah, Neil Postman.
Yeah, he's the same guy that wrote Musing Ourselves to Death and the End of Education.
Yeah, I've seen those books.
I haven't read them.
Yeah, Technopolis is the best one.
Anyway, so.
Yeah, I think that broadly, broadly speaking, that vision is correct that, you know, that we have this technological revolution and it's happening fast.
Everything's getting cheaper and cheaper and that the laws are outdated.
And, yeah, certainly we at the ACLU are out there trying to make sure that, you know, technology serves us, serves the people and increases individual power and happiness.
And it doesn't just increase the power of, you know, government and other large organizations over us.
I don't think we're the only source of hope on the horizon.
The courts are often too weak, but they often aren't.
And so we're seeing the courts are really starting to push back against this secrecy around stingrays and say, no, you've got to tell a judge if you're using a stingray.
And I think that, you know, in some ways technology itself can be a help.
The fact, I mean, a lot of these police, we talked about police body cameras, but a lot of the videos of police officers doing bad stuff comes from bystander cameras.
The fact that we all have a video camera you have to put up on your shoulder.
Now we all carry one in our pocket and we can whip it out and we can help bring accountability for what our government agencies are doing now.
Of course, you know, the police have pushed back against that and they've harassed and arrested people for filming them.
And we've done lawsuits all around the country defending the right to photography and your right to photograph police officers.
As you said, surveillance is power.
Yeah, I mean, so it's kind of like a, it's kind of a battle that's going on there.
I mean, government wants to surveil you, but doesn't want you to surveil it.
And we think that, you know, the people have a right to monitor their government, but the government shouldn't be monitoring the people unless it has, you know, individualized suspicion that you're engaged in wrongdoing.
So, you know, that's the era we're in.
And, you know, as our founding father said, you know, every generation has to fight for freedom anew.
And this is our fight in some ways.
It's making sure that technology works for us and not just for big organizations and government.
All right.
Now, one more thing for you to scare the hell out of everybody with is, to me, the very gnarliest part of this.
This is the, this is what I think Postman, you know, was really getting at.
And that is the predictive policing and the enslavement of populations by algorithm.
Yeah.
So, you know, everybody loves data.
Everybody thinks we're in an age of data.
You know, everybody thinks that data is a solution to everything.
We can just get data on it.
We can see what's happening.
We can solve every problem.
And policing is no different.
We're seeing a lot of products being sold to police departments and police departments experimenting and seeing what they can do with, you know, this idea of predictive policing.
If you can get data about where crimes are happening and you can run it through algorithms, you'll be able to, you know, predict where crimes are happening.
In some cases, what kind of crimes happen.
In some cases, who's going to be doing the crimes.
And this is, you know, this is brand new stuff.
And there may be some ways in which, you know, crunching data can help police be more efficient and police where, you know, when and where needed and not other places.
But there's also a lot of ways for this to go bad.
You know, a lot of the data that they're using is inherently biased.
You know, for example, you know, marijuana use is pretty much the same among different ethnic groups.
But black people get arrested for marijuana at far higher rates than white people do because the police stop them more, frisk them more, pull them over more, et cetera.
And so they, you know, they uncover the marijuana use in the black community more than they uncover the marijuana use in the white community.
And so if you look at the crime statistics, you know, and you go by that, you're going to put those numbers into some algorithm.
And it's garbage in, garbage out.
You put in racially biased data, you're going to get racially biased results coming out.
Only it's disguised by the aura of science and officialness and objectivity and ones and zeros and numbers.
And how can you question it when the computer says?
Yeah, that's a really good point.
I mean, people think, you know, some guy tells you something and you're like, all right, that's coming from some guy.
And you know that, you know, humans are biased and not always trustworthy and everything.
But, you know, it's coming off your computer screen.
I think a lot of people have a bias and think that it's in some ways objective when it's just not.
And so, you know, again, we get back to it.
This stuff's brand new.
There might be ways in which it can work well and fairly and everything.
But we have to be very careful here because there's a million ways this can go wrong.
And so, again, the bottom line is we need transparency because, you know, we need to know what the police are doing.
Are they doing it fairly?
And since it's all so new, we don't even know as a society what works and what doesn't.
So we need to be able to experts from academics, the community, to look at what the police are doing and to judge it.
And yet again, you know, we're seeing companies selling these predictive analytics programs and they won't reveal what their algorithms are, what their secret sauce is.
So, you know, it's another way in which, you know, technology is playing all these dynamics that we were talking about.
Well, you know, it seems like it's the same old story that you always had with internal affairs is the best you got.
And that's nothing right because they're cops from the same damn department.
So, you know, the guys lower down to have to be really corrupt for internal affairs to really intervene and stop them.
And, you know, with all these police killings, whether there's footage or not or whatever it is, you know, even the local prosecutors might as well be a cop.
And most of the grand jury are cops or spouses of cops or whatever.
You know, the whole thing is so rigged and there's no accountability.
And just like, you know, as you're saying, the big problem is transparency.
It seems like, you know, the other big one is is really accountability.
And we're never going to get it as long as there is a monopoly on self investigation by these cops.
It seems like at the least we could do when the cops are accused of real crimes or, you know, a bad shooting or something like that would be to bring in cops and prosecutors from other districts in the same state or something to have a little bit of faux objectivity and check and balance there where, you know, you could make money betting.
I mean, not too much because the odds are pretty obvious that when the Austin D.A. takes a police shooting before the grand jury, it's nothing but a conspiracy after the fact to help the cop get away with it.
Simple as that.
So that's the thing that seems like it goes kind of unmentioned and unremarked in all of this is how about when the cops break the law with the way they use the stingray?
They go to prison because they're breaking the law.
And then maybe some of the other stingray abusers might have to think twice about whether they're going to abuse the stingray or not.
But instead, it seems silly to even bring it up.
It just goes out saying no cop will ever go to jail for the way he uses a stingray ever.
And we all know it because there really is no law.
There's just law enforcement.
Yeah, I mean, I think that one of the things that everybody's realizing is, you know, what you say is right.
Like, there just aren't sufficient checks and balances on police people.
I think there's a larger cultural deference to police, you know, especially, you know, people who haven't had problems with police like the poor minority communities have tend to trust the police.
They want to trust the police.
They want to believe that the police are, you know, are all heroic good guys.
And so, you know, the part of the problem is structural.
You know, we don't have the right sort of adversarial proceedings and objective oversight that we need.
And part of it is cultural.
Everybody from judges on down to juries just wants to, like, give police the benefit of the doubt based on, you know, there are definitely very brave police officers out there who risk their lives to help protect the public.
And I think that a lot of people want to think that all the police are like that all the time, which is just naive.
And so you see everybody from judges to juries, you know, even when, you know, even in ridiculous situations, the jury is giving the benefit of the doubt to police officers who clearly are guilty.
So, you know, it's a problem multilevel, but I totally agree.
You know, we need a hard reform when it comes to trying to make sure that justice is done.
Hey, great interview.
I'm sorry for talking so much during it.
Ever since I quit the live show, I've been talking more than usual during the interviews.
No problem.
It's good to have a real conversation.
Yeah.
No.
Well, listen, it's a great piece of work here.
Thanks a lot.
Yeah.
Appreciate it.
All right, everybody.
That is Jay Stanley.
He is a senior policy analyst at the ACLU's Speech Privacy and Technology Project and the editor of their blog Free Future.
And that is at ACLU.org slash free future.
And this one's at TomDispatch.com and it'll be running on Antiwar.com tomorrow.
It's called Policing the Dystopia.
Power loves the dark.
Thanks, y'all.
Check out the archives and sign up for the podcast feed at ScottHorton.org.
Support at ScottHorton.org slash donate.
Follow me on Twitter at Scott Horton Show.
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