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How cops’ use of kill switches will be closely scrutinized

Let’s get ahead of this one because we’re presently 0-2 when it comes to the Supreme Court and our techie intrusions

As the nation is waiting to hear from the grand jury in Ferguson — and the media is pre-hyping the aftermath. The media has painted police as heavy-handed, militaristic, free-speech violators and the protesters as rioters, looters, and thugs — depending on who you listen to. 

Today’s media has evolved into a ratings predator unrecognizable to someone who remembers when a news reporter named Walter Cronkite was called the most trusted man in America.

What happens after the grand jury decision will be dissected ad nauseam in terms of public safety and free speech. Any subsequent police intrusion on free speech will be viewed in that context — along with the remaining specter of Ferguson police allegedly using a no fly zone to keep media helicopters out.   

Cell Phone “Kill Switches” to Combat Theft
Cell phone theft has increased dramatically. Consumer Reports found that smart phone thefts nearly doubled between 2012 and 2013 — from 1.6 million to 3.1 million. The number of violent thefts of smart phones is also rising. According to the Federal Communications Commission, as many as one in three robberies in large cities involve a mobile device.     

Violence aside, the most disturbing aspect of such thefts is not the loss of the device but all the personal information on it. Lockout, a mobile security company, estimated that lost and stolen cell phones added up to $30 billion in annual losses.  

Law enforcement officials have been urging the telecom industry to do more to combat theft. One proposed solution is “kill switch” technology. It would enable a cell phone to be remotely shut down and wiped of its information. Proponents argue it would greatly dis-incentivize thefts of smart phones by making them a less attractive target. 

Two states — California and Minnesota — have passed legislation that will take effect next year requiring manufacturers to equip phones with a kill switch. Two other states — Nevada and New Jersey — are considering similar statutes.  And there’s proposed federal legislation.    

What’s the Downside?
The concern is that law enforcement might co-opt kill switches as an anti-protest tool under the guise of public safety. Privacy advocates and policy organizations worry that that police could commandeer kill switches to keep citizens from using their phone cameras and recording functions to capture police actions and to organize and communicate with each other during a demonstration

And it’s not just privacy advocates expressing such concern. The executive Director of CALinnovates — which advocates for tech creators and users in California — originally came out in support of that state’s kill switch legislation. Ferguson changed his mind

He cited the arrest of 11 journalists, police ordering journalists to turn off their phones and a letter signed by 48 news organizations demanding police stop harassing journalists who were just doing their job amongst his reasons.

The California kill switch statute incorporates earlier legislation that requires police to get a court order before interrupting communication services. The limiting legislation — Public Utilities Code Section 7908 — was previously passed after BART officials admitted shutting down the train’s underground cell phone network to stop people from organizing a protest in the wake of police shooting Charles Blair Hill, a mentally ill man armed with a knife.  

But if police decide there’s a risk of “death or great bodily injury” before a court order could be obtained, they can shut down communications unilaterally.

To date, none of the other proposed state or federal kill switch legislation specifically addresses law enforcement’s use of the technology.

Cops have been batting .000 in the Supreme Court with technology versus privacy. The U.S. Supreme Court decided 9-0 that police could not use GPS tracking devices without a warrant — rejecting the government’s argument the devices simply kept track of information the police could get without a warrant through the use of surveillance. The Court reasoned that the cost of 24-hour surveillance self-limited the police, whereas the cheap and easy technology did not.

Just this year, The Supreme Court again ruled 9-0 that police must obtain a warrant before searching cell phones of arrestees — rejecting the government’s analogy that a cell phone was akin to a wallet, which could be searched. 

What Does the Future Hold?
Kill switch technology is being legislated and may otherwise be provided to consumers through a competitive marketplace to combat cell phone theft. Whether future state or federal legislation specifically addresses law enforcement’s use of the technology, it will be highly scrutinized. Law enforcement better be ready for push back if they use it for purposes other than what it was intended for.

If terrorists are using cell phones to plot an act of violence, California’s exception to a court order is clearly met. Criminals using an otherwise peaceful, if strident, protest as a cloak to destroy property and loot is a much more attenuated justification for infringing on citizens’ free speech rights.

I suggest police consult with their local prosecutor’s office about policies and procedures that would self-limit the use of kill switch technology to ensure it complies with the intention of any current or future legislation and the First Amendment. We don’t need another loss like the last two Supreme Court decisions we got slam dunked in. 

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