The Intel Intelligencer: Berman (Domestic Intel); McEwen (Mobile); Eways (Gang Intel)

Posted on 28 March 2011 by


Tell me if you’ve heard this one before: there is a duality, a dichotomy, present in many of the aspects of things we use in our law enforcement careers. Like a hammer – which can be used to build a house or kill someone – many of the tools we use have a double-edged nature.

In that spirit, it’s duality day at PLI. We look at two new reports which examine the need for intelligence technologies, training and capabilities while recognizing the potential for going too far.

First up are a recent event and publication from the Brennan Center for Justice at New York University School of Law, which has produced a range of opinion on law enforcement intelligence.

Then we look at a paper from University of Toronto researcher Rhonda McEwen which looks at the use of mobile communications devices by drug dealers and by police.

Finally, we link to an excellent article by Sgt Andrew Eways of the Maryland State Police on the importance of honest self-assessment and analysis supporting courageous action against gang violence.

Title: Domestic Intelligence: New Powers, New Risks
Author: Emily Berman
Publisher: The Brennan Center for Justice at New York University School of Law

On 18 March, The Brennan Center held a symposium entitled, Intelligence Collection and Law Enforcement: New Roles, New Challenges in New York City. White House Assistant to the President for Counterterrorism and Homeland Security John O. Brennan said in a speech to the symposium,

Intelligence is absolutely critical to identifying and disrupting terrorist networks. It empowers law enforcement, informing their operations and enabling them to identify and disrupt plots before they are carried out … Law enforcement is equally indispensable. Through aggressive investigations, we have been able to identify members of terrorist networks and detect their plots. The tools available to law enforcement allow us to act swiftly to disrupt the plots we uncover, and to incapacitate dangerous individuals through successful prosecution and conviction.

Earlier, the Brennan Center published Emily Berman’s report, Domestic Intelligence: New Powers, New Risks, in which she proposes changes to the guidelines for domestic surveillance – primarily by the FBI, but in general as well. You should read it, as she makes cogent and clear arguments while providing a great overview of current and historic domestic surveillance and intelligence gathering policy.

“…[U]nless the [Guidelines for Domestic FBI Operations] effectively enable law enforcement to counter the terrorist threat, the risks they pose to civil liberties are too high. It is therefore also critical to know how the Guidelines are being administered and whether they are effective.”

The report contains clear charts comparing and contrasting policy changes from the 1976 Levi Guidelines through changes under Ashcroft. It then moves to the current Attorney General’s Guidelines For Domestic FBI Operations, which Berman states includes practices and procedures that would have Libertarians quivering with anger.

Berman states that the potential is strong under current guidelines for invasion of privacy, disincentives against protected speech, racial profiling and excessive collection. Then she questions whether all this is even effective in the stated purpose of gathering homeland security intelligence.

Ultimately the report calls for more clear guidelines overseeing a wide range of surveillance techniques, and while recognizing that we cannot know the extent of such surveillance, civil libertarians, groups concerned about overzealous surveillance (particularly of Islamic groups) believe that there must be new and more specific guidelines.

The report makes two catagories of suggestions for guideline modification which Berman avers will be “relatively easy” to implement. The first is for enhanced procedural mechanisms to ensure oversight of the guidelines’ effectiveness and use, which sounds reasonable enough.

The second suggestion is also relatively easy to implement – if, by “relatively easy” you mean:

…some of the most dramatic expansions of FBI power should be scaled back, both to ensure that intrusive investigative methods are used only when there are facts indicating a need for further investigation and to guard against improper consideration of race, religion, ethnicity, national origin, or political ideology in investigative decisions

While that sounds like a piece of cake*, the specific recommendations within the report are straightforward (if complex to implement) and don’t appear to try to lean too far the other way – essentially it requires establishment of wrongdoing before intrusive techniques are used; and a concept of least intrusive effective method required. It doesn’t ask for blanket “anti-racial-profiling” but rather sensibly argues against “improper consideration of race, religion, ethnicity, national origin, or First-Amendment-protected activity in investigative decisions.”

*That was sarcasm.

Title: Tools of the Trade: Drugs, Law and Mobile Phones in Canada
Author: Rhonda N McEwen
Publisher: New Media Society

In the last episode of the PLI Podcast, Aaron Turner talked about some innovative ways that mobile technologies were being used by criminals, and Mike Vallez talked about some of the mobile device applications that cops can’t live without. On the podcast, I even said something like, ‘Lest we all go and cancel our cell-phone subscriptions, because of Aaron’s gloom-and-doom, here’s Mike with the Good-Guy stuff,” alluding to the duality not just of mobile devices but indeed of life itself.

Last July, Rhonda N McEwen at the University of Toronto published Tools of the Trade: Drugs, Law and Mobile Phones in Canada which looks at exactly this phenomenon by studying the way cops and robbers both use mobile phones technologies to achieve their divergent goals. Along the way she calls for an entirely new way to think about our relationship with mobile communications devices, and our concept of privacy as it pertains to them.

The paper first sets out a summary of research showing that, far more than other forms of information and communications technology, mobile phones become a digital extension of social norms, but also have created their own distinct social practices. She makes a good supporting case to show that mobile phones, being personalizable and ever-present, become a mode of expression beyond the communication on calls: “…the mobile phone can be conceptualized as a socio-technical actor within a wider social network, and mobile communication as a process involving a network of actors.

We use them to express self image, McEwen says, and to be more efficient. And increasingly, we use them to break the law – the paper has some fascinating global examples of mobile phones being tied to teenage prostitution in Japan, clubbing and excessive drinking and drug use in the UK, and, of course, the use of mobile technology by drug dealers for many obvious reasons.

McEwen begins by discussing new ways law enforcement has sought globally to tie owners to mobile phones, by increasingly stringent controls on purchase, and the resultant increase in ways to subvert and avoid those controls altogether in the name of illicit (or merely private) communications. The report continues on issues surrounding lawful intercept and controls and guidelines governing agencies attempting to track mobile phone use, and points out that these have failed to keep pace with technology – in Canada, she notes, there has not yet been a challenge to the police using mobile phones as tracking devices, for example.

She asks “What does privacy mean when the device used to provide surveillance is the device used to evade, and when the activities in question are suspect?” The paper is more a rallying call for research into exactly this highly important question and the societal and legal ramifications any answer would bring.

McEwen argues that, “…legal doctrine is embedded in an instrumental view of the mobile phone that limits law enforcement activities. A more substantive view would include an assessment of the role that the device itself plays in the construction of activities.

Title: When Good Men Do Nothing: The Price of Denial
Author: Sgt Andrew Eways

Some of the stories relayed by 17-year veteran officer Andrew Eways in this well-written, researched and organized article are frustrating, but some are inspiring. We wish there was no need for articles like this – but they are indeed necessary. In this one, Eways does an admirable job of outlining the perils of ignoring intelligence – from officers, from specialized units, from the community, and from crime analysts.

Eways describes how Maryland officials, striving to maintain a politically correct stance in the face of evidence of mounting gang activity, allowed the problem to grow until the gangs had become entrenched. Despite best efforts by officers to document the gangs, and provide actionable intelligence, reluctance at many levels of officialdom slowed the response to the detriment of the community and at great risk to all. He  details similar inaction – and similar disastrous results – in Catalina, California.

He contrasts these stories with those of the actions of innovative and courageous administrators, officers and citizens in Salinas, California, where in 2009, Eways says, the city squarely faced the challenges it saw with increased gang activity, spoke out about the problems, mobilized its resources, and, when it felt it needed outside help, it brought in military consultants with expertise in counterinsurgency operations.

And similarly, in El Paso Texas, where,

After much convincing by EPD’s gang intelligence officers and supportive commanders, the El Paso Police Department formed the first ever Drive-By Shooting Response Team. The officers assigned to this team responded to the scene of drive-by shootings and developed valuable information about the victims, suspects and existing gang rivalries that contributed to these incidents. They worked alongside case detectives and together they assembled strong criminal cases against those gang members who committed drive-by shootings.

The result was a dramatic reduction in drive-by shootings.

The article argues that the cost of doing nothing, or hiding behind politically correct platitudes and euphemisms, is just too great. In Eways’ words, “the cost of taking immediate action is much lower than the price of denial.”