01/29/16 – Rachel Levinson Waldman – The Scott Horton Show

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All right, y'all.
Welcome to the show.
It's my show, the Scott Horton Show, here on the Liberty Radio Network.
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Our first guest today is Rachel Levinson Waldman.
She is the Senior Counsel to the Brennan Center's Liberty and National Security Program at New York University's School of Law.
And I can't read you the rest of her bio, because it would take the time that we need for this entire interview.
Welcome back to the show.
How are you doing, Rachel?
Good.
Thanks so much for having me.
Very good to have you back on the show here.
And so there's this very important article that I had overlooked last summer, and I'm very happy to have you on here to talk about it.
The article was at JustSecurity, JustSecurity.org, Armed Drones and the Influence of Big Business on Police Surveillance Technology.
And great the way all that is in just the headline right there.
I'm trying to tell you everything you need to know.
Yeah, pretty much.
I think...
Did I read you right here that when North Dakota took up the legislation, what they meant to do was to ban the use of weapons on drones in their use by police against the people of North Dakota?
That was the reason that they started in the first place, but then it all got turned around?
Yeah, this is such an interesting example, both of the impact of private industry and sort of the legislative passage making that goes on.
So you're exactly right that the initial aim of this bill was to prevent armed drones flown by anyone flying overhead in North Dakota.
That was the original intent.
That was the original text of this bill.
But then some lobbyists got involved, including the Police Association lobbyists and kind of involvement from local business interests.
And so what ended up being removed from that was a ban on law enforcement using armed drones.
So everyone else was still prevented from it, but law enforcement was not.
So when we talk about armed here, you know, we're not talking about literally drones with guns, but lots of, quote unquote, less than lethal weapons.
So tasers, pepper spray, rubber bullets, things like that, which can still pack a pretty heavy punch.
Yeah.
I mean, especially rubber bullets.
They're bullets with rubber coating on them.
I guess sometimes they're steel instead of lead to make them a little lighter or something like that.
And even tasers.
You know, there's a list of people killed by law enforcement and people killed by tasers are on that list.
So, you know, even some of the ones that seem, you know, painful, but a little more innocuous in some ways can also have pretty significant consequences.
Well, and, of course, the other thing is, once you tell the deputy sheriff that here's your drone, go find out, you know, if you can figure out a way to use it somewhere, they're going to find a way to use it.
And that was the thing with I don't think anybody told them that they could.
The city council or anybody else, maybe there was a policy decision made inside the Austin Police Department.
But I believe here in Austin, Texas, APD were the first to deploy a drone during surveillance while they were preparing a raid on a house.
And they sent the drone up ahead to to show them the way it wasn't armed yet at that point.
But, you know, if it's up to them, they'll bring them with them everywhere they go.
Right.
I mean, that's whenever they can.
Right.
And I think that's one of the concerns that mostly sort of the drone that we've seen so far that's getting covered is mostly in sort of what seemed to be emergency circumstances, although certainly not always.
And I think one of the concerns is that, you know, all surveillance technologies are rolled out for emergencies.
They're rolled out ostensibly for national security purposes, for counterterrorism.
But they become cheaper and cheaper.
They become easier and easier to use.
A police department has a drone.
And boy, it'd be super helpful to use it in lots of other circumstances.
And then it becomes used a lot more either just in circumstances for which it wasn't originally intended or to track protesters, to watch people, you know, exercising their First Amendment rights and things like that.
Yeah.
Well, and that's the thing of it, right, is any of us can think of a thousand reasons why you would want cops and other first responders to have drones.
If they're looking for a missing kid and they can put the heat sensor out there in the woods.
We all just read, right?
Maybe this was in England, but same thing.
Their media is ours now about the little boy who got lost in the woods and died out there of exposure.
If only they had some drones.
And that's true, right?
It makes sense.
And yet that means we're going to live in a world where these things are just living in our skies all day long.
There's nothing we can do about it forever.
Well, you know, I think there may be some in between, because a lot of people are calling for some sort of warrant requirement to put a drone in the air or to use the data that's collected from a drone.
But any warrant requirement constitutionally, there's going to be exception for exigent circumstances.
So if a police department has a drone and they are generally kind of circumscribed by this warrant requirement, they have to go to a court and say, you know, we're going to have probable cause to believe that using this drone will get information that's, you know, relevant to a crime or suspected crime.
There is always going to be an exception for basically imminent danger to life and limb.
So the idea is that if there's somebody out there, as you say, who is in immediate danger of dying from exposure, there's, you know, some sort of domestic incident where there's, you know, really immediate danger as a practical matter and as a constitutional matter.
The police are going to be able to put that drone up in the air anyway.
And so in some ways, it's a little bit of a red herring because you can have both.
You can have pretty strong protections.
And still, if the police department have the drone and obviously that sort of step one, we may not want them to have one, but if they do, they can use it in cases of true emergencies.
Right.
Well, you know, the other thing is here, too, is a big part of why cops are so quick to kill everybody now is because the training has changed from protect the suspect's rights to protect yourself at all costs.
And, you know, that, you know, officer safety or whatever, you know, their code words are for and forget you.
And so it seems like once they all have these things and they're shooting beanbags from shotguns with them.
Well, what about a truly dangerous situation?
You're saying that if somebody is a real, you know, danger to life, that that's when we definitely should not use a drone and instead sacrifice one of our deputy sheriffs.
No way.
That's the best time to send in a drone, an armed one.
Give it a R-15 and go take out those bad guys without endangering the life of the law enforcement officer, as they say.
Right now, I think that is probably, you know, to the extent that we're moving into a world where there actually are armed drones, whatever it is that they're armed with, whether it's truly lethal or sort of, quote unquote, less than lethal.
I think you're right that that's going to be a really powerful argument because needless to say, that's the argument that is very much sort of winning overseas.
Right.
That's why we're deploying so many drones overseas.
It's sort of this notion of it provides, you know, our military, our soldiers with safety.
You can you can, you know, kind of pilot and control all these things remotely.
We're not in any danger.
Also, needless to say, there's a lot coming out about the inaccuracy of the drones and the inaccuracy of the decisions that are being made when you're operating remotely.
There's only, you know, the judgment calls that you're making are different.
There's less that you can see about, OK, who's actually involved.
So I think you're right that if we're moving into this world, it will be very tempting to use them to protect the officer's safety.
But you have exactly the same concerns and so much more so because we're on domestic soil.
We're talking about a police community relationship, not a military relationship in which what the police are supposed to be doing is, in fact, primarily a protective role, right, not an antagonistic role.
And certainly having armed drones piloted by law enforcement flying through the air really tips that model, I think, even more than we've seen already.
Well, and yeah, and it's just, you know, with the different technologies as they're adopted, it's always a double edged sword.
Right.
So they introduce the taser to say, well, this is less lethal so they can use it instead of a gun and so they can win and take, you know, take someone into custody without taking their life.
And that's great.
Except it's also an alternative to a good punch in the face or maybe a nightstick to the back of the knee.
And sometimes is, you know, and so is is easier to resort to when the cop wouldn't have reached for his gun in that situation before.
He might have just knocked the guy down or something like that.
So it always becomes easier and easier.
And of course, it's a lot easier to kill somebody with a drone than it is with a bayonet or it is with a, you know, a gunshot at point blank range.
But anyway, I'm sorry we got to take this break.
We'll be right back with Rachel Levinson Waldman right after this.
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All right, you guys.
Welcome back to the show.
I'm Scott Horton.
It's my show, The Scott Horton Show.
I'm talking with Rachel Levinson Waldman from the Brennan Center about the drones in our skies and well, the ones under police control, most importantly here, the evolution of technology and as it's implemented.
And I swear some of the things you say there sound exactly like right out of Technopoly by Neil Postman about how, hey, once these things become cheap enough to implement, they are implemented.
And there's, you know, as he put it, there's nothing left in our culture that can withstand the onslaught anymore.
As soon as the gadgets can be ubiquitous, they will be no matter what they are, even if they'll destroy every last bit of our privacy and freedom.
And that seems to be where we're at.
And then I love the whole banality of it where, you know, they're they're trying to ban the thing.
And then a couple of lobbyists from a couple of businesses show up and say, yeah, but we'd really like to go on the dole.
And so then the government, in this case of North Dakota, says, oh, well, in that case then, sure, by all means, arm up police drones in North Dakota.
And again, with less than lethal, so-called less than lethal weapons.
But still, that's really what it's all about, huh?
Just a couple of lobbyists drop a couple of quarters on the floor and we're done.
Well, you know, who knows kind of, you know, what the intent was or if there is, you know, if there was a mercenary, you know, people wanting to then go back to private industry and make money.
Certainly, I think this example shows that the private industry lobbying has some significant clout, right?
And that the people who are going from these surveillance technology manufacturers, their main driver is their company, right?
The company, it's the shareholders, it's whoever's owning it.
They are working off the assumption that the more of these they can manufacture, the more they can sell, the more they're used, the better.
And if there are restrictions on how they can be used, if there are restrictions on their capabilities, then that's not good for business, right?
They don't necessarily have kind of the public trust in mind.
That is not to say that they are intentionally acting in antithetical ways to the public trust, but that's simply not their motivation, right?
And so they then go and lobby on these issues and end up having some, you know, in some cases, a pretty significant impact.
Yeah, so that's the whole, that's the key to the whole thing.
This is not, quote unquote, corruption.
This is the system.
This is how it works.
If you're in business, you lobby for the government to give you money to sell them stuff at high prices.
If you can, that's what you got to do.
And if the democracy is going to stop you by lobbying the other way, well, then let them.
It's all fair game, but that's the way it goes.
It's not even considered to be corrupt, even though if the same thing was going on on Afghanistan, you would go, well, that's corruption.
Well, and I think one of the main issues here, I mean, to some extent you could say, OK, look, this is all sort of on the up and up.
If it's all transparent, then anyone can go and lobby.
Right.
So a drone manufacturer can go and lobby and a group of citizens can go and lobby.
The legislators make their decision about sort of, you know, what what's the best move, what the best decision is.
I think one of the issues here, and this isn't necessarily so much in the drone context, but thinking about some other surveillance technologies, is how little transparency there is.
So there's a kind of surveillance technology that's usually called a stingray.
It's a way to collect a lot of information about people's cell phone calls, not usually the content of the call, usually information about, you know, where is somebody making a call, trying to identify somebody you can't otherwise identify, trying to figure out who they're calling and when, things like that.
And one of the big scandals really has been how little information has come out about this.
There are non-disclosure agreements between the manufacturer of those.
And then when the FBI shares them with local and state law enforcement, with police, they're often saying, please don't reveal anything about this, including to the courts.
And so then judges are approving orders for these surveillance technologies to be used, literally not even understanding what it is that they're sanctioning because there's not enough information out there.
And I think when you have that level of kind of opaqueness, when we're talking about pretty significant, pretty strong surveillance technologies, that is a real concern.
And that very much also ties into the role and the power that private industry has.
Yeah, well, and wasn't there even a case in New Jersey or somewhere in the East where they dropped a major case rather than follow the judge's order to explain their use of the Stingray?
They just said, well, I guess we'll just let this guy go then, judge, forget you.
Right.
No, exactly.
And that's been one of the pieces.
And the FBI literally has said, they are now saying that they didn't direct this, but based on documents that have come out via Freedom of Information Act request, it seems that they did.
But the FBI had said to local and state law enforcement, you can use these devices.
Please describe them in a certain way.
They were describing them kind of under the name of another kind of information collection.
And if it really gets to it and if either the judge is really pressing you or if you would have to disclose something to defense counsel, drop the case.
Right.
So it is more worth it to us to potentially even let somebody go who should you know, who should be a defendant, who should be a defendant in a criminal case.
It is more worth it to us to let them go than to have the existence and the scope of these surveillance technologies basically see the light of day and really be kind of weighed and examined by the courts and by the public.
Well, I mean, it sounds like they're they think they know they've been breaking the law.
And for some reason, they're unreasonably worried that they could somehow be held accountable for that.
But well, and it's in one of the difficult pieces, you know, that the law is really trying to catch up with these technologies.
So the sort of specifics of, you know, what kinds of information is it that the technologies are getting?
So especially something like this stingray.
Certainly, if the government were doing something like wiretapping and actually listening in on somebody's conversations without a warrant, 100 percent that would be against the law.
Some of these are in gray areas and the courts are really catching up.
They are starting to understand much, much more about what they are, how they're used and sort of their their their power.
And so recently you are starting to see judges really pushing back against the government and saying, we understand about more more about what these are.
You have to disclose much more about them and you have to have very stringent protections in place in terms of what you're collecting, how it's used, how long it's kept, who it's shared with, because otherwise we really have no assurance that it's going to be used properly and that it's not just pulling in tons of data that's going to be kept really to be sifted through and data not just about the particular sort of target and criminal defendants have very strong protections under the Fourth Amendment, but also innocent people's data that's just going to be sort of swept up in the same process.
Right.
Yeah.
And, you know, that's a real sad irony, too, is that it's really the human rights activists who have pushed and including me, you know, and maybe you to have body cams on these cops to try to protect the citizenry from their brutality, that if they believe that there's a slightest chance of accountability, maybe they'll dial it down a notch or two.
And yet it won't be long if it's not already the case that these cameras will have the ability to do facial recognition of everybody on the sidewalk and download that, you know, upload that into the database all day long.
And and, you know, that body cam will be a double edged sword.
It'll help protect us from the cops a little bit, but it'll give them a lot more ability to invade the rights of all of us.
You know, you can't go outside.
You can't be part of a crowd without that being on your permanent record somewhere, you know.
Right now, and I think that really is one of the sort of concerns and tensions about body cameras is that they could and they already have in some cases played a really significant role when it comes to accountability and transparency.
Right.
I mean, there are there are indictments, there are criminal convictions now of police officers based on something that was captured on a body camera.
You know, there's one story that an officer and his colleagues were given, were giving, and another story that actually comes out to the video.
And so that that is incredibly important on the flip side, as you say, there are these privacy concerns.
Right.
So there are other people who are walking by who are going to be captured on the body camera.
An officer walks into somebody's house wearing a body camera.
What happens then?
An officer goes to a demonstration and is capturing that video.
And then as you say, then it's a question of, well, OK, how much video is there?
How long is it kept?
And then really, are you applying things like facial recognition technology?
Because it's one thing to say, well, we have a thousand hours of video.
You know, in theory, we could have somebody sit down and watch it.
But that's not really practical.
Where are you going to use it?
It's a very different matter with powerful facial recognition technology, which is, you know, very much not only in development, but but really sort of starting to to reach levels that I don't think we even would have thought of a few years ago to say, well, you know, we're looking for this one person.
We're looking for this one activist.
Let's see it in the picture and see where we get a match.
And that is incredibly powerful.
Right.
Yeah.
You know, the remake of Robocop was just horrible.
I mean, they took all of the cynicism out of the Paul Verhoeven version.
But one thing that's very valuable about it is they show basically a near near future, well operated software system for the integration of all the surveillance of all of Detroit, where every camera is all tied to the central database in real time.
All all the different surveillance technologies are all tied into the database and are instantly retrievable by Robocop as he goes around the block and whatever.
And so anyone who's looking for any time they they already the database already knows where they were at least five minutes ago or something like that.
And and it shows real totalitarianism if you look at it that way.
You know, right.
And it's it's a little futuristic, but not super, super futuristic.
There was an article a few weeks ago about a center in Fresno, California, and the idea is that when an officer gets a call or when a dispatcher routes a call to an officer saying, you know, please go to, you know, whatever the 2000 block of K Street, that information is then sent to the system.
And the person that made the call or the person to whom they're responding basically gets sort of a threat score similar to how you would get a credit score.
So I think it was colored.
I think it was green, yellow or red sort of keyed to how much of a threat are the officers going to be facing when they arrive there?
So you could see circumstances, you know, if it turns out that that person has been the aggressor in, you know, twenty nine previous domestic disputes and is usually packing a gun.
That's useful information to know.
On the other hand, that that's simply information.
You don't actually need a color coded score to elicit that.
The more concerning thing is to what extent is that score based on the neighborhood as a whole, based on who used to live there, based on other kind of ineffable characteristics that are somehow creating the score and could really change how an officer who presumably him or herself is packing a gun and maybe, you know, coming with other colleagues, how they respond to that person, what their first instinct is, what the kinds of judgment calls are that they're going to be making.
And they tried this out with a city council member and who had a higher score, in part because of the person that used to live in the house that he lives in now.
And so it's sort of a similar, you know, having this wide angle lens, but it's very opaque to the public how those decisions and how those judgments are being made.
Right.
Yeah.
Again, Neil Postman in Technopoly, where he just talks about how.
But yeah, you know, truth is a matter of quality, not quantity.
And computers are stupid and there is no such thing as artificial intelligence.
And yeah, they're tools, but it's just numbers and and and the whole outsourcing and the diffusion of responsibility to.
Well, the computer said that I better bring a machine gun to this guy's house tonight or whatever it is.
You know, you can imagine a computer says you're not allowed on the airplane and all these kinds of things where the decision making is turned over to computers just on the assumption that somehow they are the the thing they are wiser than we are.
They know what the truth is better than we can know.
And and it's just it's a it's a bloody cul-de-sac to head down, basically.
And as and we've already seen that Will Gregg has written about a guy who had he was on the record saying that he thought the government should have to obey the Constitution.
And that gave him, of course, he's a must be a right wing terrorist, you know, some kind of Timothy McVeigh type to talk about the Constitution.
What does he mean?
So that put his threat matrix number three three points higher, which meant they came with a SWAT team.
That was the only thing they had on him in his prior record was that he had mentioned the Constitution as being relevant to what the government is supposed to be doing.
Right.
Which is which is pretty incredible.
And I think you're right.
Sort of thinking about, you know, not only is there much more sort of computer aided decision making, but that it in some ways it can sort of be sold as more neutral.
Right.
We have computers involved, so it must be right.
All it's doing is taking this data and crunching it.
How can get how can I get it wrong?
And as you're saying, there are so many ways that that it can get wrong and ways that will be very, very hard to unearth.
Right.
And I'm sorry that we're out of time.
I can't bring this up other than the title that this this article that you sent earlier along these lines to that's running in Defense One dot com refugee or terrorist.
IBM thinks its software has the answer.
And just down this rabbit or rat hole we go.
And I'm sorry we're out of time.
I got to let you go.
But thank you so much for coming back on the show, Rachel.
You're great.
Oh, thank you, Scott.
I appreciate it.
OK, y'all.
That is Rachel Levinson Waldman from the Brennan Center at the New York University School of Law.
And we will be right back with Steven Zunes in just a sec.
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