Somebody's Watching You

Privacy is like oxygen: You only notice when it's gone.

After the mass killings in Paris and San Bernardino, it's likely that laws protecting our privacy will be threatened in the name of providing greater security for Americans.

"After Paris, we are going to have a new battle on our hands," says Dave Maass, of the Electronic Frontier Foundation in San Francisco. "After every terrorist attack, there's a rush to give the government new powers."

But the reality is that we already live in a surveillance state. Oregonians may not realize the ways in which law enforcement can already spy on them, in at least one case to a degree unmatched in any other state.

We do have some protections: The Oregon Constitution is a national model in safeguarding individual rights, and Oregon senior Sen. Ron Wyden is perhaps Congress' biggest critic of unfettered surveillance.

"Sen. Wyden has long opposed the mass surveillance of Americans, which violated core constitutional rights without making our country any safer," says his spokesman, Hank Stern.

Yet your life is an open book, in ways you may not realize.

Government agents tap phone lines and vacuum up cellular data. License-plate readers continually snap shots of your car, and airborne cameras fly over the state 24/7. Local, state and federal law enforcement agencies have tools to watch everything you do.

Surveillance can be a valuable and necessary tool for monitoring dangerous people.

"It's a completely different world now," says Ryan Lufkin, a Multnomah County deputy district attorney who's been in the thick of the battle in Salem between law enforcement and privacy advocates. "People are constantly changing phones, using sophisticated communication techniques and encrypted technology."

But high-tech tools can also violate a fundamental constitutional right—the Fourth Amendment right against unreasonable search and seizure.

Dozens of interviews with privacy advocates, criminal defense lawyers and law enforcement officials show that law-abiding Oregonians are on the wrong end of an arms race, involuntarily surrendering their rights to a well-financed, secretive law enforcement sector.

Law enforcement agencies regularly employ high-tech gadgets developed by the military industrial complex and funded by a Congress worried about terrorists and drug cartels. The result: We have no idea how closely we are being watched.

"Technology has put citizens' privacy at risk," says state Sen. Tim Knopp (R-Bend), one of the Legislature's leading privacy advocates. "I think there are blurred lines that have been created."

Here's how the cops are keeping an eye on you:

Wiretaps

Wiretaps—the secret recording of phone conversations—can be employed by police if they get warrants from judges.

That's supposed to be a high bar. Yet records show it's easier to obtain a federal wiretap in Oregon than in just about any state in the nation.

In Oregon last year, federal prosecutors obtained more wiretaps—59—than all but four of the 78 federal jurisdictions that reported figures (see chart below).

The number of federal wiretaps in Oregon is also disproportionate to the criminal caseload. It's nearly as many as the number of federal wiretaps U.S. prosecutors obtained in the western district of Texas (San Antonio), which handles 12 times Oregon's federal criminal caseload; it's almost three times as many as the southern district of Florida (Miami), which has three times Oregon's caseload.

Ann Aiken, chief judge of the District Court of Oregon, says the wiretap numbers are surprising.

"That is jaw-dropping," Aiken says. "I was not aware of it, and I have no explanation for it."

That's a common response.

"That number is shocking," says Portland criminal defense lawyer Matthew McHenry.

Wyden, who as senior senator will head the appointment of the next U.S. attorney for Oregon, was also unaware of the spike and is, Stern says, "interested in finding out the reasons for last year's increase in federal wiretaps in Oregon."

There is no clear explanation why federal prosecutors seek so many wiretaps in Oregon.

"It's impossible to say," says Tung Yin, who teaches criminal law at Lewis & Clark Law School. "But there was a management issue in that office."

He's referring to former U.S. Attorney for Oregon Amanda Marshall, who resigned in April. Although she cited health reasons, Marshall quit following an investigation into her relationship with Scott Kerin, her chief drug prosecutor in 2013 and 2014, when the reported number of wiretaps spiked.

Neither Kerin nor Marshall responded to requests for comment.

Cops and prosecutors say wiretapping phone lines helps build strong cases.

"Wiretaps are extremely useful," says John Deits, Kerin's predecessor as the chief federal narcotics prosecutor in Portland.

"The closer you get to the heart of an organization, the more important they are," Deits says. "The big guys don't touch drugs, and they don't touch money. The only way you get them is to catch them on their phones with their own words."

Defense attorneys say wiretaps are devastating. "How effective is a wiretap?" asks Tom Coan, a Portland criminal defense lawyer. "That's like asking how effective is a videotape of somebody stealing a six-pack from a grocery store."

At the same time, wiretaps can be intrusive and infringe on people's Fourth Amendment rights because they capture intimate details and contacts with people not suspected of crimes. "Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices," the U.S. Supreme Court said in a 1967 decision that became the basis for wiretap regulations.

Because wiretaps are so intrusive, they are supposed to be employed only when investigators have exhausted every other option.

The process for obtaining a wiretap is arduous: An agent drafts an affidavit, which is reviewed by a supervisor and then sent to a local assistant U.S. attorney for review. It's then sent to Washington, D.C., for two more levels of review, and only then submitted to a local federal judge for approval.

Federal court statistics show, however, that judges typically rubber-stamp prosecutors' requests for wiretaps.

In the past 10 years, prosecutors in all U.S. courts asked for 28,256 wiretaps. Judges rejected just eight requests. That's a batting average of .9997.

Earlier this month, a challenge to a federal wiretap in U.S. District Court in Portland showed just how flimsy some affidavits can be.

The case involved James Dang, who appeared in federal court Dec. 3. Dang, a compact man with a goatee and shaved head, flew in from Hawaii, where his family operates tuna boats and nail salons.

For nearly five hours, Dang watched as Morgan Matthies, a mountainous Drug Enforcement Administration special agent, explained why he placed a tap on Dang's phone in November 2014.

Matthies told the court the wiretap allowed him to "break through the iron curtain" surrounding Dang's business—and ultimately yielded a money-laundering indictment.

But under questioning, Matthies conceded that the 81-page affidavit he'd submitted to a judge to get the wiretap contained a major error—it falsely accused Dang of drug trafficking. Every federal wiretap approved in Oregon last year involved a narcotics investigation, so including that detail would have helped.

The claim about drug trafficking was "not an accurate statement," Matthies admitted to the court. "It was a mistake." (Matthies did not respond to a request for comment.)

Dang's lawyer, Mark Bartlett, served as a federal prosecutor in Seattle for 25 years, including more than a decade as the top deputy. He blasted Matthies for writing a false affidavit that Bartlett said was "reckless" and filled with "crummy, old information."

Judge Michael Simon—who initially approved the wiretap—nonetheless rejected Dang's motion to suppress the information gathered from his phone.

Billy Williams, the acting U.S. attorney for Oregon, declined to answer questions about his office's use of wiretaps.

Stingrays

While there's at least some tracking of wiretaps, law enforcement officials have been able to use other, less precise surveillance tools with even less scrutiny.

One powerful tool law enforcement agencies use is called an International Mobile Subscriber Identity-catcher, a device better known by the brand name Stingray. Many law enforcement agencies deploy Stingrays, although few admit it.

The News Tribune in Tacoma, Wash., recently uncovered documents showing Tacoma police had spent nearly $400,000 on a Stingray and used it more than 100 times, but they refused to acknowledge even having the device.

"I'm sure the Portland Police Bureau uses Stingrays," says Chris O'Connor, a public defender in Portland. "But they never turn over evidence of that."

Police Capt. Mark Kruger, who's in charge of PPB's Drugs and Vice Division, says the bureau does not own a Stringray, but he acknowledged officers may have access to devices "on a case-by-case basis."

Stingrays are small enough to fit into a suitcase but powerful enough to extract hundreds of phone numbers simultaneously.

They act as mobile cell towers, fooling nearby cellphones into sending their signals, phone numbers and locations to the Stingray, which records the data.

That allows police to determine which phones are associated with a particular location—such as a drug house or crime scene.

O'Connor says after a recent shooting in North Portland, a helicopter lingered overhead for a long time.

"I can't prove it, but I bet there was a Stingray onboard," O'Connor says.

Information about who owns Stingrays and how they are used is shrouded in secrecy.

Nationally, the American Civil Liberties Union and the Electronic Frontier Foundation have filed numerous public information requests seeking disclosure about the devices.

Those requests have yielded little, in part because of secrecy agreements between the manufacturer of Stingrays, Florida-based Harris Corp., and federal law enforcement agencies.

The ACLU this year reported that 58 agencies in 23 states use the devices. Task forces combining federal and local agents conduct complex investigations in Oregon and around the country. Federal agencies are exempt from state public records laws, which provide more transparency than federal disclosure laws.

Coan, who defends clients in federal criminal cases in Oregon, says investigators could only have built one recent case against a client of his with a Stingray.

"There was a device hidden inside a van," Coan says, "and they were able to park the van near the suspect, and the suspect's phone data was captured."

Stingrays are indiscriminate: If an officer parked a Stingray-equipped van outside Lloyd Center, he could trick the phone of every shopper in the mall into providing his or her location. Yet most people are not suspected of committing a crime, which is the legal threshold for surveillance.

The ACLU of Oregon proposed legislation earlier this year that would have required warrants for Stingray use. The measure was stymied in part by a Catch-22—since the device's use is shrouded in such secrecy, it's difficult to demonstrate abuses. The legislation died.

"There are agreements that prevent law enforcement from discussing whether they use them," says Kimberly McCullough of the ACLU. "So while we've gotten reports they are being used in Oregon, we haven't gotten a clear answer on the extent of their use."

Cellebrites

When police know somebody's phone number, they can use a Universal Forensic Extraction Device, also known by the brand name Cellebrite.

Not much larger than a brick, a Cellebrite allows an investigator to vacuum up everything on a person's cellphone—text messages, phone numbers and history, emails, photos and browsing history.

That means if a phone is seized in the course of an arrest, the police could access everything on the phone—and they often have. Police can also gain access to a cellphone remotely, using a Bluetooth connection, without the owner ever knowing.

Even when police seize a phone that is password-protected, the Cellebrite includes a program that allows it to decipher passwords.

PPB's Kruger says the bureau owns about 10 such devices. The Oregon Department of Justice also owns one, and the Oregon State Police own an undisclosed number of Cellebrites.

One might think the devices are used to investigate terrorism or drug cartels. But as recently as July, state police used a Cellebrite to investigate who had leaked former Gov. John Kitzhaber's emails to WW.

The police report revealed that officers used a Cellebrite on at least four state employees' phones, presumably to determine whom they'd been communicating with.

The Oregon State Police declined to answer questions about their use of Cellebrites.

Courts have slowly caught up with Cellebrite technology, which has been around since at least 2007. The U.S. Supreme Court ruled in 2013 that police need to get a warrant to use such a device—except in cases of emergency.

Lufkin, a Multnomah County deputy district attorney, has been prosecutors' point man in Salem. He says even before passage of the new bill, police were seeking warrants in nearly all cases when using Cellebrites.

In June 2015, the Oregon Legislature passed a law specifically requiring warrants. The law goes into effect in January 2016.

Privacy reforms have sparked bipartisan cooperation in Salem. A group led by one senior lawmaker from each party in both chambers meets regularly in an attempt to balance law enforcement needs with privacy rights.

"We get concerned when law enforcement uses devices that are essentially search-and-seizure tools with no outside oversight," says House majority leader Jennifer Williamson (D-Portland). "It's not that we don't want police to use them; it's that we don't even know whether they are being used in the first place."

Drones

Two years ago, the Oregon Legislature passed a pioneering bill prohibiting police use of drones without a warrant—except in cases of emergency.

But privacy advocates have come to realize the new law left loopholes—it is silent, for example, as to whether police can acquire data gathered by drones deployed by other government agencies, such as the Department of Forestry, or numerous private contractors.

Lufkin says such concerns are overblown. "I have no reason to believe that happens," he says.

Kruger says the Portland Police Bureau employs two airplanes equipped with a heat-sensing camera for surveillance, but it doesn't use drones.

"I wish we did use drones," he says. "We spend a lot of money on planes, and the work could be done cheaper with drones."

Nonetheless, privacy advocates hope to tighten drone restrictions next year.

"We are trying to close that gap so law enforcement can't do an end run around the statute and subcontract with others for data," says Rep. John Huffman (R-The Dalles), a leader of the Legislature's bipartisan privacy group.

License-Plate Readers

Oregon lawmakers succeeded in requiring warrants for Cellebrites, but they failed to limit another widespread surveillance tool—automatic license-plate readers.

In 2008, the Portland Police Bureau began placing cameras on patrol cars that would automatically scan license plates for stolen or wanted vehicles.

The license-plate readers also give police a digital road map of motorists' movements: where they work, eat, shop and spend the night.

"Looking at where somebody goes on one day is not an invasion," says McCullough of the ACLU of Oregon. "But over a long period of time, it moves from a reasonable search to unreasonable. If a government had an agent who followed every person every day, we'd probably all agree it's unreasonable."

The U.S. Supreme Court previously ruled that a similar type of surveillance, the placing of a GPS tracking device on a person's car without a warrant, violated Fourth Amendment protections. But the court hasn't ruled on plate readers.

Although police are supposed to access plate information only when they have probable cause that a crime has been committed, they are continuously gathering information about citizens without any such suspicion.

The ACLU of Oregon proposed legislation this year that would have restricted the retention period for license-plate images to 24 hours. That would have marked a major shift—Portland police, for instance, had until recently a policy of storing images for four years. The bill died in committee.

"My big concern is that they are sitting on that data and are unwilling to purge it," Williamson says. "They just say, 'It will help us solve crimes.' End of story."

Unlike other information—such as police reports—license-plate data is off-limits to the public, and is supposed to be used by police for criminal investigation only.

Recent investigations by the Electronic Frontier Foundation and others, however, have found that the data in other cities is sometimes misused and not always secure.

An EFF investigation found that Internet users could access data from license-plate trackers used in California, Florida and Louisiana.

"Right now, law enforcement says it wants that data for stolen cars, warrants and Amber Alerts," the EFF's Maass says. "But we think you'll see them try to use it for far more purposes in the future."

Maass says surveillance technology continues to advance more quickly than oversight."It's easy to regulate something before it's adopted," he says. "It's harder to take away something law enforcement is already using. Unless massive abuses come to light, there's less impetus to do anything about it."

You Don't Know What You Don't Know

If police gain information by means they want to keep secret, how can they use that information to arrest someone, without showing their hand?

Simple. It's called "parallel construction," or a "wall stop."

In October 2013, for instance, police in Klamath County pulled over a woman named Sandra Guillen-Avila and found 22 pounds of methamphetamine in her vehicle.

Her attorney, Bill Gourley, a former Oregon state trooper, doubted the pretext for the traffic stop—going too slowly and failing to signal a lane change.

His skepticism grew out of the coincidental presence of four state troopers and a drug detection dog."This is a highly unusual use of state resources for a mere traffic infraction," Gourley wrote in a November 2013 court request for information about the stop.

Parallel construction occurs when police gather information from surveillance and then "pass the information…along to another law enforcement agency with the caveat that the receiving agency should develop their own probable cause for stopping and searching the vehicle," Gourley wrote. (Guillen-Avila was sentenced to five years in prison and is pursuing an appeal.)

Some agencies call such arrests "wall stops," because disguising the original source of the information used in the arrest erects a protective "wall."

USA Today recently reported that massive amounts of data the National Security Agency gathered in warrantless wiretapping aimed at counterterrorism has been shared with drug investigators—but only if the local agencies agreed to hide the source of their information.

Tung Yin, who teaches criminal law at Lewis & Clark Law School, says the U.S. Supreme Court ruled "pretext stops" are legal, and courts have been reluctant to allow defendants caught in such stops to fish for information.

Criminal defense lawyers say it is increasingly obvious that prosecutors are bringing cases that originate from sources they never disclose.

"If government can bring a case based on secret evidence gathering," says Portland criminal defense lawyer Bronson James, "that's a violation of due process and the concept of public trials." NIGEL JAQUISS.

Willamette Week