Law Enforcement Surveillance
As technology has advanced, so has the ability of law enforcement to track individuals. Some privacy advocates believe that New Hampshire needs to update state laws to protect citizens from intrusive surveillance. This article summarizes the emerging surveillance technology used by law enforcement in New Hampshire, and what laws exist to limit that surveillance.
Cell phone surveillance
Calls, texts, and other content
In general, New Hampshire law enforcement may not intercept or record conversations, phone calls, or other telecommunications without permission from the Office of the Attorney General or a court order. The U.S. Supreme Court similarly ruled in Riley v. California that law enforcement officers need a warrant to look at the contents of a phone.
Cell phone location data
The U.S. Supreme Court ruled in Carpenter v. United States that law enforcement needs a warrant to ask a cell phone carrier to provide the history of a cell phone’s location — not the cell phone’s contents or calls.
New Hampshire law already limits how law enforcement officers can collect information about cell phone locations. In 2017 New Hampshire passed a law requiring law enforcement to get a warrant before using a cell site simulator.
Cell site simulators (also known as stingrays) mimic cell towers and collect data from all nearby devices, such as the number and location of each cell phone.
The 2017 law also requires law enforcement to delete almost all of the data gathered by a cell site simulator at the end of each day.
Car GPS data and license plate scanners
The U.S. Supreme Court ruled in United States v. Jones that law enforcement needs a warrant before installing a GPS device on a car to track a person’s movements over an extended period of time.
New Hampshire also limits the ability of law enforcement to take snapshots of vehicles with automatic license plate readers (LPRs).
LPRs use a high speed camera and character recognition technology to record the license plates of cars driving by. Those license plates are compared against lists of vehicles involved in crimes.
According to New Hampshire law:
- LPRs cannot photograph the occupants of a vehicle.
- Any law enforcement agency using an LPR must register with the Department of Safety.
- Unless the car is related to a crime, the LPR must destroy the record of a license plate within three minutes.
Privacy and enhanced imaging technology
New Hampshire does not have any laws regulating the use of infrared cameras or backscatter x-rays, both of which allow the user to see into cars or buildings to identify people and other objects.
However, in 2001 the U.S. Supreme Court ruled in Kyllo v. United States that law enforcement needs a warrant to use a technology that is not commonly available to the public to see inside a person’s home.
Law enforcement use of drones
There are many possible law enforcement uses of unmanned aerial vehicles, commonly known as UAVs or drones. Law enforcement might use a drone to conduct surveillance over private property, conduct a search for a missing person, or pursue a suspect.
The New Hampshire Legislature has considered but never passed a law restricting law enforcement use of drones. Almost every bill would have required law enforcement to get a warrant before using a drone to record over private property.
In 2016 New Hampshire passed a law that regulates body cameras for any law enforcement agency that uses them:
- Officers must inform individuals they are being recorded.
- Individuals can refuse to be recorded in certain private settings, such as the home.
- Officers must turn off body cameras in many circumstances, such as during strip searches.
- Recordings must be stored securely and may not be submitted to facial recognition or data mining software.
- Unless the camera records the discharge of a firearm, death, serious bodily injury, or a complaint against a police officer, the recording must be deleted after 180 days. There are exceptions for recordings involved in court actions.
A body camera recording may be subject to the right-to-know law if it shows an officer using force or restraint, the discharge of a firearm, or an encounter that results in a felony arrest. That means the public can demand access to the footage. However, the law states that body camera recordings may be exempt from public disclosure if they “constitute an invasion of privacy of any person.” Courts must determine on a case-by-case basis what body camera footage to release.
Facial recognition technology
In 2014 New Hampshire passed a law that prohibits the Department of Motor Vehicles (DMV) from using any facial recognition technology on driver’s license photos. New Hampshire accordingly does not share license photos with the FBI.
In 2018 the New Hampshire Legislature established a committee to study the use and regulation of biometric data, including photos used for facial recognition technology, by the government and private companies. That committee issued its report at the end of the summer and a related bill is making its way through the Legislature.
Social media privacy
Law enforcement uses social media to learn about people, just like other users do. Officers can view public profiles, try to connect with witnesses or suspects, and gather information about a criminal’s associates. Law enforcement may also compel social media websites to release private information with a warrant.
Some law enforcement agencies in the U.S. also use software that aggregates all public social media posts. That software allows officers to search by geographic location, hashtag, and keyword to identify possible threats. For example, in 2014 Durham, New Hampshire police used such software to search for possible witnesses of an abduction of a University of New Hampshire student.
There are no restrictions on the use of social media monitoring software by law enforcement in New Hampshire. However, in 2018 Facebook and Twitter made significant changes to how they share user data, which has limited the power of social media monitoring software.
Predictive policing software
Predictive policing software analyzes data about past crimes to predict where and when crimes are likely to occur in the future. Predictive policing software may be used by police to identify neighborhoods for patrols.
For example, the Manchester Police Department started using predictive software in 2015 to increase police patrols at certain times and locations. The department was criticized for this after the violent arrest of a young man parked in a location identified by the software; that man was only ever charged with resisting arrest.
There are no restrictions on the use of predictive policing software by law enforcement in New Hampshire.
Law enforcement surveillance in other states
New Hampshire is usually stricter than other states when it comes to how law enforcement may use technology to surveil citizens. However, some states and cities have additional restrictions, such as:
- Requiring public input before law enforcement purchase or use new technology;
- Requiring law enforcement to report any use of special technology, such as drones.
Federal law enforcement surveillance
New Hampshire law cannot limit the action of federal law enforcement officers, who are governed by federal law. That gives New Hampshire little power to respond to global digital surveillance programs such as those revealed by Edward Snowden in 2013.
In 2017 Rep. Neal Kurk introduced a bill that would forbid any state or local official from assisting federal officials in gathering a person’s electronic data without a warrant. The Senate killed that bill, in part due to concerns that it would inhibit information sharing between state and federal law enforcement investigating crime.
Constitutional right to privacy
In 2018 the New Hampshire Legislature approved a constitutional amendment (CACR 16) which will go before voters in November. The amendment states: “An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.”
This amendment would not have any specific impact on law enforcement surveillance, but it would create more opportunities for citizens to challenge unwarranted law enforcement surveillance in court.
“New Hampshire should do more to protect privacy by limiting law enforcement surveillance.”
- Citizens should not have to give up privacy just because they are using a cell phone instead of a landline, a GPS device instead of a paper map, or social media instead of greeting cards. New Hampshire must update its laws to ensure that technology is not enabling law enforcement to infringe on citizens’ reasonable expectations of privacy. If New Hampshire does not safeguard privacy, innocent citizens will be viewed the same as criminals, subjecting them to police harassment and chilling their free speech through cell phones and online.
- Predictive policing software bases its predictions on data from past police activity, so it tends to perpetuate any biases in policing. For example, if officers have historically focused on drugs deals on the street in poor neighborhoods, predictive policing software will indicate more crime is likely to occur in those areas — leading police to investigate more low income citizens rather than white collar criminals in affluent neighborhoods. New Hampshire needs to limit the use of predictive policing software to fight these biases.
- There are many examples of law enforcement across the United States using technology to surveil political protestors (such as Black Lives Matter protestors) and certain religious groups (particularly Muslims). By limiting the use of certain surveillance technology, New Hampshire can limit the ability of law enforcement to discriminate against large groups of people who are exercising their constitutional rights.
- Any time the government or a private organization gathers large amounts of private data, that data becomes a target for hackers. A 2016 poll from the nonpartisan Pew Research Center accordingly showed that half of Americans are not confident in the ability of the federal government to protect citizens’ data. The simplest and safest way to protect citizens from this is to prevent the government from aggregating large amounts of private data.
- While New Hampshire places more limits on law enforcement surveillance than other states, there are still several restrictions used in other states that New Hampshire could adopt, from limiting where police fly drones to requiring an annual report on the use of infrared cameras and other technology.
“New Hampshire adequately balances privacy and public safety when it comes to law enforcement surveillance.”
- Any time New Hampshire requires administrative approval or a court order to use a surveillance technology, it slows down an investigation. Given the speed of modern life, these delays can hinder the ability of law enforcement to catch criminals.
- Policies that require law enforcement to disclose how they use technology provide criminals with the information they need to evade law enforcement detection.
- In this day and age, citizens are willing to give up some privacy in exchange for safety. A 2016 survey from the nonpartisan Pew Research Center showed that roughly half of Americans believe the government’s anti-terrorism policies have not gone far enough to protect the country, while only one-third believe those policies have gone too far restricting civil liberties.
- If you have not committed a crime, you have no reason to fear law enforcement surveillance. Similarly, citizens can take action to enhance their privacy, for example by avoiding social media and using encryption on cell phones.
- Although there are many factors that contribute to crime rates, from the economy to the weather, some studies suggest that the use of predictive policing software substantially decreases crime.
- Officials say that because New Hampshire law forbids the DMV from using facial recognition technology, New Hampshire has become a haven for criminals getting driver’s licenses with fake identities.