Legal/Privacy Aspects of New Technology

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Drone legal expert and local attorney James Arrowood will discuss the emerging privacy and legal aspects of drones, fake cell phone towers, license plate readers and other new technology.

Ted Simons: Drones, fake cell phone towers, license plate readers, all new technology that can negatively affect your right to privacy. Here to help explain what's out there and what is watching and listening to is attorney James Arrowood of the Frutkin law firm in Scottsdale. Welcome back to "Arizona Horizon."

James Arrowood: Thanks for having me again.

Ted Simons: We will start with drones and kind of take it from there. The privacy concerns, especially when it comes to commercial use or of investigative use how much of a concern is that?

James Arrowood: Well, it kind of depends. It depends on whether you're a good guy or bad guy, I think, partially. People are justified in being concerned about their constitutional rights and the right to privacy. The technology has far outpaced the law. The law moves slowly so we have now technology that's 20 or 30 years ahead of the law.

Ted Simons: OK. So basically, as far -- let's to go commercial use here real quickly. How strict are the FAA rules for commercial use?

James Arrowood: Presently, the FAA has been very strict with issuing permits for commercial use or certificates of authorization. You have had to go through a lengthy process. They have been backlogged. There's not a good framework yet for commercial use which prevents your average realtor for instance where we could see a great use of this tool. There's a broader technological economy that's at issue here. Which is surveillance.

Ted Simons: Yes.

James Arrowood: For instance a drone is just a bird. If it has no technology attached to it, it's really just a model aircraft. So it has very little economic value until you put technology in it or attach technology to it. And that's what's really the issue. That's what has people concerned.

Ted Simons: Yes. Are they right to be concerned?

James Arrowood: Well, I think in a sense, yeah. Because there's not a good legal framework for how some of this technology is used. And it is absolutely being used. And I am going to be careful about talking about what's called sources and methods, and a lot of this information is what we call open source information which means it's available publicly on the internet with some research. OK. But what the technology now does is, it can intercept phone calls. Not just the fact that you are making a phone call but it can intercept you speaking. It can intercept your text messages. And this technology can be attached to a drone or it can be put in a briefcase or put in your pocket or whatever it may be. And there's antennas that make it larger and the network larger, for instance but, yes, the technology exists where we can listen to your phone call.

Ted Simons: And fake cell phone towers as well?

James Arrowood: Right. That is called mobile network spoofing. And what that is is we can put a device in a vehicle or on, if you are in the desert, for instance, and we know that the 10 is a major drug corridor so that's where it's relevant. You can put a device on a drone and fly it overhead and it can spoof a cellphone tower. So when your cellphone - It has to connect to a tower to essentially amplify the signal and get on the network to transmit the communication. Well, there's a period of time where your signal is going from your hand set to that tower, as you know. Everybody is kind of familiar with that. Imagine if you were able to fake that cell phone tower and make your phone think that you were, that I was talking to you when in reality I am talking over here and it's transmitting back to the tower and broadcasting out. So you don't notice an interruption of the signal. That technology is open source. You can learn about it online. But I am not giving away any secrets here. But I am not going to get into specifics but there are interesting names associated with that technology.

Ted Simons: There are interesting legal questions as well. How much evidence can you use if you gather by that particular technique?

James Arrowood: Well, that's another good question. And I remember a law professor used to call, it's called fruit of the poisonous tree. If we take fruit of that poisonous tree, can we use that evidence against you? The answer is no but you can back into the case different ways. That's frequently how it's used. For instance, I just need the information that you are going to be X place at a certain time and then I can make sure a police car passes you and pulls you over for a tail light violation. Right? That's kind of how it's used in that sense. And the device itself isn't important without software. So really the software that's cyphers all this stuff is critical, too. That's the next generation.

Ted Simons: What about this license plate technology that also, license plate technology is kind of been out there for a while reading license plates. Now they are starting to reading faces with the license plate?

James Arrowood: There's facial recognition technology that can combine with license plate readers and that combines with the cell phone spoofing. And those sorts of things to where ultimately, you know, the idea that you have any privacy in public, I think is false. And I think that that's not subject to necessarily to 4th amendment constitutional rights against search and seizure, for instance.

Ted Simons: Why don't you think so?

James Arrowood: Well, because, for instance, if you use a cell phone and you transit a signal and you know that it goes to AT&T's tower, presumably at some point AT&T or Sprint or any one of the networks, they have some access to that information and it's a permissible use to transit it on ward. Is the same thing as a piece of mail, so when the post office gets your mail, are they allowed to open it? In certain circumstances they are. If you are sending drugs in the mail, for instance. Now, that begs the next question which is probable cause and warrants. And judges typically oversee those sorts of things. One of the major issues has been law enforcement's use of certain devices, in particular what's called a stingray device. Or trigger fish or harpoon devices, and there's some more that I am not going to say. But their use of those devices to collect cell phone information is a step removed from even what AT&T does which is to transmit or distribute the signal. They are storing and gathering that information and data centers you just talked about a data center for instance.

Ted Simons: Right.

James Arrowood: One of the uses of data centers is to store terabytes of this information.

Ted Simons: We've talked about this on the show as far as the court cases are concerned. The courts have said you can't search cell phones if those are found in cars. Correct?

James Arrowood: Well, that was a very, very, very recent case.

Ted Simons: Yes.

James Arrowood: It literally came out in the 9th circuit in December of 2014. And that was US V. Camou. If an officer picks it up and wants to search through it if it's not incident to an arrest or if it's not relevant to a criminal act at that time then it's not a container they can be searched in the vehicle. That's good news. But the East Coast has been different. There's been what's called a split of authority legally. There have been courts that have said police can search your phone. And so now you have an issue that may, in fact, may end up in front of the Supreme Court and probably should.

Ted Simons: So we have the society and law trying to catch up to technology and the courts trying to catch up to the law in the first place.

James Arrowood: That's right. And what's happening is some of these judges are issuing warrants just because the police tell them, oh, we are going to do a pen register or a wire tap and they don't understand that this is way beyond that. Because the law is a slow moving technological entity and these judges frankly have no idea, what is a stingray? What is that device? And people don't really understand that.

Ted Simons: Last question. We have got about 30 seconds left. Are you concerned about your privacy?

James Arrowood: No. Because I don't have an expectation of privacy with anything that's public. I simply don't expect it.

Ted Simons: You don't expect it. But even so does it concern you?

James Arrowood: Well, it concerns me that the law hasn't caught up to the technology. Absolutely as an attorney and as a private citizen, absolutely.

Ted Simons: All right. Great stuff. Good to have you back. Thanks for joining us.

James Arrowood: Thank you.

James Arrowood:Attorney, Phoenix;

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