Politico Magazine featured a story yesterday titled “The FBI’s Growing Surveillance Gap,” arguing that the Federal Bureau of Investigation is understaffed, which has led it to pursue controversial terrorism stings that some say amount to entrapment. But the Politico headline is ironic given some others this week.
The author of the aforementioned article, Garrett M. Graff, writes that the FBI is suffering from a “resource crunch,” and in terms of human resources, he makes a good argument.
“Particularly in the wake of the Edward Snowden scandals, we tend to think of the FBI and the sprawling homeland security apparatus as a giant surveillance machine—an all-seeing government eye reading emails, tapping phones, tracking purchases and sitting in vans outside homes as undercover agents infiltrate terror cells,” Graff writes. “But the circumstances behind the Orlando shooting, counterterrorism experts say, underscore the very different reality: The FBI actually isn’t big enough to tackle the new era of online radicalization and independent-acting lone wolves. It’s not that the FBI didn’t recognize (Omar) Mateen as a threat; it’s that there are too many people like Mateen and (Tamerlan) Tsarnaev and (Nidal) Hasan across America today for the FBI to track them all—leaving the vast majority of people who the FBI suspects might harbor terrorist aspirations to go about their daily lives without any regular government surveillance.”
But as we were reminded again this week, modern government surveillance doesn’t necessarily require agents in person “sitting in vans outside homes” – and some of the bureau’s most powerful resources are not human.
While the FBI dealt with criticism related to its previous contact with Omar Mateen this week, it also scored a legal victory that got less attention: getting a federal judge to block a Seattle public utility from releasing more records about the surveillance cameras the bureau has installed on some of its utility poles. There are at least six such cameras on Seattle City Light’s poles, a spokesperson for the Seattle City Attorney’s Office told the Associated Press, but there could be more.
“In such cases, publication of the number of FBI pole cameras, and the frequency with which they are used in any particular location, may diminish the effectiveness of the technique” of surreptitiously surveilling targets, according to the court filing on behalf of the FBI.
It is also unclear whether warrants were obtained before the cameras in question were installed, and as Ars Technica reports, “the law on the matter is murky at best.” In the November 2009 edition of the FBI’s Law Enforcement Bulletin, a government attorney wrote a detailed article on the issue.
“An effective law enforcement technique, especially in circumstances where suspects engage in counter-surveillance or where physical surveillance by law enforcement personnel is operationally impractical, is to affix a video camera to a utility pole,” the lawyer wrote. “The camera view is nothing more than a utility worker would have if he was performing maintenance or other job-related duties atop the pole. In many instances, this has been accomplished with the consent of the utility company and, thus, without either an installation order or one authorizing monitoring.”
The same 2009 article notes, however, that such constant monitoring was described as “Orwellian” by more than one federal judge, and ultimately concludes that the “use of video surveillance by the government to capture the activities of individuals is a sensitive issue,” which can implicate Fourth Amendment and, in cases involving things like monitoring political protesters, First Amendment issues.
“Any use of video surveillance by law enforcement should be scrutinized to determine whether privacy interests are implicated and a search warrant is required or advisable and whether the First Amendment is implicated,” the report’s author notes. “Furthermore, if a search warrant is required, investigators must be aware of additional judicially imposed components to this court order, similar to those needed for electronic surveillance, required in some jurisdictions for video surveillance.”
That last little bit about jurisdiction-specific requirements is worth paying attention to. Privacy activist Phil Mocek, who first made the public records request for information about the Seattle cameras, reportedly did so out of concern that Seattle City Light may have failed to comply with a local law that he says should require the FBI to get warrants for pole cameras.
The court filing arguing the FBI’s case notes that the only reason the bureau even told City Light about the cameras at all was to keep utility workers from interfering with them.
“At the behest of City Light, since approximately 2013, in order to prevent FBI pole cameras from being removed, tampered with, compromised, or destroyed by City Light employees, the FBI has shared limited information with City Light security personnel. Specifically, in order to guard against the loss or destruction of FBI pole cameras and the consequent interference and disruption to corresponding FBI investigations that would result from City Light utility personnel removing or destroying foreign equipment found on City Light poles, the FBI Seattle Division began notifying City Light security personnel when the FBI installed a camera on a City Light pole.”
Since the City of Seattle released some documents about the FBI’s secret utility pole cameras late last year, though, the situation has changed. “Because of the violation of the FBI’s rights under its confidentiality agreement with City Light, the FBI has ceased any further sharing of information with City Light,” according to the filing.
The filing, along with the Law Enforcement Bulletin article written several years ago, suggest that the FBI’s use of pole cameras may be widespread, although the FBI says secrecy is key to its effectiveness, noting that “if a particular concealment becomes publicly identifiable, subjects of the criminal investigation and national security adversaries of the United States will know what to look for to discern whether the FBI is conducting surveillance in a particular location.”
And pole cameras apparently are not the only surveillance technology that the FBI values for their usefulness in conducting warrantless surveillance of any member of the public who happens to walk past. Last month it was revealed that the bureau has for years hidden microphones in public places in the San Francisco Bay Area, such as in trees, under rocks, and at bus stops.
The FBI may indeed perceive itself as having a “surveillance gap,” but rest assured it is doing everything in its power to close it.
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