law enforcement officials with valuable tools in investigating and prosecuting ... For purposes of legal analysis, the types of technology that are being used by ...
Technology-Enhanced Surveillance by Law Enforcement Officials
Ric Simmons Forthcoming, Annual Survey of American Law (2004)
Public Law and Legal Theory Working Paper Series No. 10 Center for Law, Policy and Social Science Working Paper Series No. 7 May 2004 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=539704
Technology-Enhanced Surveillance by Law Enforcement Officials Ric Simmons Abstract
Over the past thirty years, new surveillance technologies have provided law enforcement officials with valuable tools in investigating and prosecuting crime, but have also unavoidably raised questions about the need to protect Fourth Amendment rights and privacy generally. This commentary gives a general overview of the different areas in which law enforcement has been using these technologies. The commentary divides surveillance technology into three rough categories: virtual surveillance (technologies such as thermal imagers that are used to gather information in ways that may or may not be a search), “hyperintrusive searches” (technologies such as wiretaps that gather extraordinarily personal or private information and thus require extra restrictions on their use), and high volume collection (technologies such as facial recognition that collect massive amounts of data from various sources, and subsequently sift through the information to find the tiny percentage that is relevant to law enforcement). The commentary reviews and evaluates the various constitutional rules and restrictions that have been placed on these different types of surveillance technologies.
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Technology-Enhanced Surveillance by Law Enforcement Officials Ric Simmons* I. II.
III.
III.
IV.
*
Introduction Virtual Surveillance—When is it a Search? A. The Katz standard B. Applying Katz to Emerging Technologies 1. Satellite Imagery 2. “See-Through” Devices C. Ramifications of the Doctrine for “Binary Surveillance” of Protected Areas D. Unfinished Business: The Dubious Rationale of Smith v. Maryland Gathering Information--Hyper-Intrusive Searches A. Title III’s standard B. Covert video surveillance and the “constitutionalization” of Title III Collecting and Manipulating Data A. Homing Devices B. Facial Recognition Technology C. Carnivore Conclusion
Assistant Professor, Moritz College of Law, The Ohio State University.
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I.
Introduction Over the past thirty years, new surveillance technologies have provided law
enforcement officials with valuable tools in investigating and prosecuting crime, but have also unavoidably raised questions about the need to protect Fourth Amendment rights and privacy generally. The stakes for both sides were raised immeasurably by the events of September 11th, with law enforcement demanding even greater leeway to use new technologies in the face of potentially calamitous threats, and civil libertarians issuing dire warnings that it is times like these which require the greatest vigilance in safeguarding constitutional protections. The most obvious manifestation of this debate is the USA PATRIOT Act, passed into law on October 26, 2001, and under attack from various quarters ever since for its broadening of law enforcement powers. But the PATRIOT Act is merely the latest skirmish in a long-running war over the proper use of modern surveillance technologies; there are many other uses and restrictions of these technologies that have been controversial for years. In this commentary I intend to give a general overview of the different areas in which law enforcement has been using these technologies, and the various constitutional and statutory restrictions that have been used to limit their use. My goal is merely descriptive, not normative, so for the most part I will not be taking sides in the debate, although if there is an area in which I feel the public perception about the use or restrictions of a certain technology is so different from the reality, I may not be able to resist pointing out the dissonance between the two.
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For purposes of legal analysis, the types of technology that are being used by law enforcement break down into three rough categories, which I will call virtual surveillance, hyper-intrusive searches, and high volume collection. Virtual surveillance involves technologies that are used to gather information in ways that may or may not be a search, depending upon the interpretation of the Fourth Amendment. These surveillance tools, such as thermal imagers or pen trap devices (which are used to trace, but not tap, incoming our outgoing phone calls), do not provide extraordinarily intrusive information—perhaps a blurry image of the heat inside of a home, or a phone number that was called. But they do allow officers to see things and learn things they could never know without using the technology. The question surrounding these surveillance techniques is simply: is this action a “search” or not? In other words, can law enforcement conduct this surveillance without any constitutional restrictions, or is the surveillance covered by the Fourth Amendment? The second category covers hyper-intrusive searches: technology that gathers extraordinarily personal or private information—wiretaps of phones, interception of electronic transmissions, or video surveillance of a private area. The use of these technologies is unquestionably a “search”—that is, it violates a person’s reasonable expectation of privacy, and so implicates the Fourth Amendment.1 In fact, these technologies are so intrusive that legislatures and courts have devised special rules and restrictions beyond what the Fourth Amendment requires for traditional searches. The question that policymakers and judges face with regard to hyper-intrusive searches is: should they be allowed at all, and if so, under what specialized conditions?
1
See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
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The final category involves high volume collection—technologies that collect massive amounts of data from various sources, and subsequently sift through the information to find the tiny percentage that is relevant to law enforcement. These technologies frequently operate in the public sphere—for example, facial recognition technology which can scan thousands of individuals’ faces an hour and compare the pictures to mug shots of known fugitives. Other examples of this technology are used in private areas (and thus require a warrant or a Title III order)—for example, the FBI’s infamous Carnivore system, which is inserted into the network of an Internet Service Provider. Once installed, Carnivore is able to intercept all the e-mails coming to or from a certain suspect, and sort through the messages to present the law enforcement agent with only the messages relevant to the investigation. Unlike technologies in the other two categories, high volume collection devices do not do things that human law enforcement officers cannot do, like detect heat through walls or hide invisibly in rooms to eavesdrop. Instead, they essentially make the law enforcement agents more efficient in gathering and sorting information—so much radically more efficient, in fact, that law enforcement can undertake certain kinds of investigations (like scanning the entire crowd at a football game for fugitives, or reading through every piece of e-mail that is sent by various subjects) that would be so infeasible as to be virtually impossible without the technology. The question faced by courts with these technologies is more ambiguous: if the source is from the public arena, courts must ask if the high volume of information being processed somehow transforms the surveillance into a search, while if the source of the information is a private area, courts must ask whether extra restrictions are needed on the use of such devices.
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I.
Virtual Surveillance—When is it a Search? A.
The Katz standard
The starting point for any discussion of the constitutionality of technologyenhanced surveillance is the landmark case of Katz v. United States.2 In Katz, FBI agents attached an electronic listening device to the outside of a telephone booth and thereby eavesdropped on the defendant’s conversation.3 In holding that this surveillance was a “search” for the purposes of the Fourth Amendment, the majority noted that “the government’s activities…violated the privacy upon which [defendant] had justifiably relied….”4 In a concurring opinion, Justice Harlan picked up on this language and crafted a test for future cases: “first that a person exhibit an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”5 The first prong of Harlan’s test quickly became obsolete,6 and courts for the past thirty-seven years have been struggling to determine when the use of a certain technology has infringed upon an individual’s “reasonable expectation of privacy.” B.
Applying Katz to emerging technologies 1.
Satellite Surveillance
2
Id. Id. at 362. 4 Id. at 353. 5 Id. at 361 (Harlan, J., concurring). 6 As courts have noted, the subjective prong is meaningless because almost all defendants will have a subjective expectation of privacy or they would not be carrying out the illicit activity that is the subject of the criminal case. See, e.g., United States v. Nerber, 222 F.3d 597, 603 (9th Cir. 2000). Furthermore, the government could too easily manipulate an individual’s subjective expectations by simply announcing that law enforcement agents were now going to begin reading everyone’s mail, thus putting every future defendant “on notice” and defeating any possible claim of a subjective belief in privacy. See, e.g., Smith v. Maryland, 442 U.S. 735, 750 (Marshall, J., dissenting). 3
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The Katz case itself, which reviewed the use of an electronic listening device that could eavesdrop on conversations, addressed an application of the Fourth Amendment to a technological kind of search, Katz sensibly held that an individual should have a reasonable expectation of privacy in the content of his speech when he is alone inside a phone booth. The Court has not been overly restrictive of technological surveillance since then; rather, it has carefully applied the Katz test to determine whether or not a given type of “virtual surveillance” is a search or not. For example, the Supreme Court has determined that using airplanes and helicopters to view open fields does not infringe on an individual’s reasonable expectation of privacy.7 There are two reasons for this: one, the flight overhead is not “physically intrusive,” and second, the information that law enforcement receives from such a surveillance—the content of an open field—has never been protected by the Fourth Amendment,8 whether the law enforcement official walks onto the land or flies over it to make the observations. This type of information has never been considered offlimits to law enforcement: as far back as 1924, the Supreme Court ruled that observations of occurrences in an open field made by law enforcement officers trespassing on defendant’s property are not restricted by the Fourth Amendment.9 The information is no more “private” simply because the government uses a new technology to acquire it—in fact, according to the Court’s analysis, new technologies are more palatable because they are less physically intrusive.10 7
California v. Ciraolo, 476 U.S. 207, 215 (1986). Oliver v. United States, 466 U.S. 170, 173 (1984). 9 Hester v. United States, 265 U.S. 57, 58-59 (1924) (“[T]he special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.”) 10 The degree of physical intrusion is not, of course, the only or event the primary consideration in determining whether or not a “reasonable expectation of privacy” has been violated. See, e.g., Kyllo v. 8
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Although no federal court has yet ruled on the issue, the same analysis would almost certainly apply to satellite surveillance—another form of “virtual surveillance” that will become possible with emerging technologies. As has been the case for eighty years, any surveillance of protected areas—inside the home or the “curtilage” of the home—will be considered a search, whether done with a satellite, a plane, or by trespassing. But surveillance of open fields near the home—by whatever method--will probably be acceptable.11 2.
“See-through Devices”
“See-through devices” are tools which allow law enforcement agents to detect information through an opaque barrier, whether the barrier is a wall, the side of a handbag, an automobile, or a person’s clothing. Unlike satellite surveillance or flyover surveillance, which is simply a more efficient (and more covert) method of observing an area that law enforcement has always been allowed to observe, see-through devices can potentially give law enforcement agents access to areas and information they previously were unable to observe without a warrant. The application of the Fourth Amendment to the use of see-through devices appears complex, but in fact is quite simple. Courts and commentators have wasted United States, 533 U.S. 27, 34 (2001). See also Christopher Slobogin, Technology-Assisted Physical Suveillance: The American Bar Association’s Tentative Draft Standards, 10 HARV. J. L. & TECH. 383, 39098 (1997) (describing “physical intrusiveness” as only one of seven factors that courts use to determine whether a “search” has occurred); Ric Simmons, From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century Technologies, 53 HASTING L.J. 1303, 1317-21 (2002) (highlighting a dissonance in the recent case law between cases in which courts focus on the physical intrusiveness of the surveillance and cases (such as Kyllo) where a non-invasive surveillance was still considered a “search.”). 11 Although there would be no Constitutional problem with using satellites to monitor open fields and public places, there are numerous statutes and executive orders which restrict the most sophisticated satellites—those belonging to the intelligence services or the military—from being used for law enforcement purposes. See, e.g. 18 U.S.C. § 1385 (2001) (prohibiting any part of the military from being used to execute the laws); Executive Order 12333, 46 Fed. Reg. 59941, 59951 (Dec. 4 1981) (prohibiting the CIA from engaging in surveillance within the United States). However, these restrictions do not extend to commercial satellites, and as technology develops, the resolution and accessibility of commercial satellites will make them more and more useful to law enforcement.
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significant amounts of time trying to pick apart the different types of see-through devices, searching for a rule that could explain which kind of devices are permissible and which are not. A popular distinction is to classify these devices as either “sense-enhancing,” which merely amplifies inputs that a law enforcement official could already see or detect to a lesser degree (such as binoculars or parabolic microphones) or “sense-replacing,” which detect inputs that are beyond the realm of human perception (such as an x-ray machine or a metal detector).12 This distinction, like all such distinctions between different types of devices,13 is not terribly useful in determining whether the search is allowed under the Fourth Amendment. To begin with, the distinctions that they draw are rarely clear-cut: is a narcotics-trained dog a sense-enhancing or a sense replacing device? What about a thermal imager? Both tools sense inputs that are detectable to human beings (smell, heat), but they enhance the input to such a degree that they provide information otherwise unattainable to law enforcement. More importantly, the distinctions between types of devices is not relevant to the central inquiry: has an individual’s reasonable expectation of privacy been violated? The Supreme Court has recently made clear14 that the Fourth Amendment inquiry turns upon the type of information the law enforcement agents are getting and not the method they use in acquiring that information. The first (and only) question is: what kind of
12
See, e.g., United States v. Place, 462 U.S. 696, 719-20 (Brennan, J., concurring) (arguing that a narcoticsniffing dog is more intrusive from a tracing device, since a dog can sense things beyond the realm of human perception). See also David A. Harris, Superman’s X-Ray Vision and the Fourth Amendment: The New Gun Detection Technology, 69 TEMP. L. REV. 1, 14 (1996) (distinguishing between sense “enhancing” and sense “replacing” technology). 13 Other courts have distinguished between devices that can detect objects without actual entry or trespass onto private property and those that technically violate property rights. See, e.g., United States v. Bronstein, 521 F.2d 459, 464 (2d Cir. 1975). 14 See Kyllo v. United States, 533 U.S. 27, 34 (2001).
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information will the government get by conducting this surveillance? If it is information that society recognizes as private, the court will hold that the surveillance is a search, and vice-versa, regardless of the method used to acquire the information. A person has a reasonable expectation of privacy in the contents of her suitcase, and so that information will be protected, whether the law enforcement officer uses X-ray goggles to see through the sides, or whether he uses the most low-tech method imaginable and simply squeezes the bag to feel for contraband.15 Thus, the analysis applied to “see-through” devices is the same that we saw being applied to the flyover cases. An open field is easily observed by anyone flying overhead, so an individual has no reasonable expectation of privacy in its contents; once we have made this determination, it makes no difference if the government agent making the observation was legally in a plane overhead or illegally trespassing onto the fields on foot. Likewise, the thermal imager in the recent case of Kyllo v. United States16 was unconstitutional not because of the hi-tech method the police used in the surveillance, but because the police acquired information about the inside of the home, which is protected no matter how unobtrusively the police acquire the information. As the Court stated in Kyllo: if the use of the technology allows the government to obtain information “that could not otherwise have been obtained without physical intrusion into a constitutionally protected area,” a search has occurred.17 C. Ramifications of the Doctrine for “Binary Surveillance” of Protected Areas A counter-intuitive but inevitable ramification of the “type of information” doctrine is that properly tailored technological surveillance would theoretically be able to 15
See Bond v. United States, 519 U.S. 334, 337 (2000). , 533 U.S. 27 (2001). 17 Id. 16
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intrude into the most intimate aspects of our lives and not violate the Fourth Amendment. These are so-called “binary” surveillances, in which a machine or an animal conducts a somewhat intrusive search for contraband, but only gives a “yes/no” output to the law enforcement officer. Since the Court has held that nobody has a “reasonable expectation of privacy” in conducting illegal activity,18 a surveillance that merely reported the presence or absence of an illegal substance or activity—and nothing else—could not possibly infringe on an individual’s reasonable expectation of privacy. In short, police have the right to learn about illegal activity or the possession of illegal substances, no matter how “private” this activity or location of the substance might be—but with most forms of surveillance, law enforcement inevitably learns about many legal (and thus constitutionally protected) activity as well. However, advancing technology will allow law enforcement to design more and more sophisticated surveillance devices which can filter out the protected, legal activity, thus shielding it from the prying eyes of law enforcement, and merely report back the presence (or absence) of illegal activity. Two examples of this kind of surveillance already exist and have been approved by the Supreme Court: narcotic-sniffing dogs19 and chemical field tests to determine the presence of narcotics.20 As the Court explained, neither the sniffing by the dog nor the testing by the chemical intruded upon a “legitimate privacy interest” because “the governmental conduct could reveal nothing about noncontraband items.”21 The ramifications for future technologies are obvious: for example, a highly sensitive metal
1818
See Rakas v. Illinois, 439 U.S. 128, 143-44 n.12 (1978). In Rakas the Court noted that an individual conducting criminal activity may have a subjective expectation of privacy, “but not one which society is prepared to recognize as legitimate.” Id. 19 United States v. Place, 462 U.S. 696, 707 (1983). 20 United States v. Jacobsen, 466 U.S. 109, 122 (1984). 21 Jacobsen, 466 U.S. at 124 n.24.
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detector with built-in shape-recognition software could be programmed to react only when someone is carrying a gun on their person. Such a device could theoretically be used to “scan” anyone at any time without it constituting a “search” under the Fourth Amendment (assuming that it was illegal to carry a concealed weapon),22 since it would tell law enforcement absolutely nothing about the individual that was protected under the Katz standard. Or a piece of software could scan private e-mail cruising through the internet, and only react when a picture of child pornography is detected. Once again, the very private and constitutionally protected content of legitimate e-mail would never be communicated to law enforcement; thus the Fourth Amendment would not be implicated. D.
Unfinished Business: The Dubious Rationale of Smith v. Maryland
For the most part, Katz’s treatment of virtual surveillance by emerging technologies provides a rational and coherent framework for courts to follow in determining whether or not a “search” has occurred. However, there is an exception to this rule: the Court’s treatment of “pen/trap devices”23 —tools which allow law enforcement to detect the phone numbers (though not the content of the calls) for all incoming and outgoing calls. The constitutionality of using pen/trap devices was decided from Smith v. Maryland, 24 a troubling case from 1979 that would raise serious problems if it were applied to modern technological methods of surveillance.
22
As of February 2004, 46 states allow citizens to carry concealed weapons. See http://www.packing.org/state/index.jsp/all+united+states. Thus, these “gun detectors” would be unconstitutional in most states, since they would give to law enforcement legitimate and thus constitutionally protected information about what a person was carrying on their person. 23 “Pen registers” are devices that law enforcement officials can attach to a phone line to determine which numbers are being dialed for outgoing calls. “Trap and trace” devices trace the phone numbers of all incoming calls. Neither device is able to record the contents of the conversation itself; such “phone taps” are clearly a search under Katz and are dealt with in Section II, infra. 24 442 U.S. 735 (1979).
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The holding of Smith—that the use of such devices does not implicate the Fourth Amendment25--might seem questionable at first glance. One might assume that this is precisely the kind of information that one might believe that society is prepared to recognize this information as private. The Court’s reasoning makes its holding even more suspect; essentially, the Court held that because the individual “voluntarily” turns over the information to the phone company (as is necessary in order for the call to be placed), he no longer has a reasonable expectation of privacy in that information.26 The Supreme Court held that numbers dialed into a telephone and thus communicated to the telephone company were in the same category as statements made to an informer: information that the individual has opened up to the world by sharing with a third party.27 Significantly, it made no difference that the information was transmitted to an electronic switching device instead of a human being—once the individual had made the information available to the phone company, he waived his right to keep the information private.28 The holding of Smith—that we have no reasonable expectation of privacy in the identity of people we call or who call us—makes sense upon closer examination, though not for the reasons advanced by the Court. The identity of the person with whom you are communicating is not a piece of information in which you have a reasonable expectation of privacy—before the advent of the telephone, an individual who wanted to directly communicate with another individual outside the home had two options: write a letter (in 25
442 U.S. at 742-43 (1979). Smith, 442 U.S. at 742-43. 27 Id. at 744. The Supreme Court has long held that statements made to a third party are no longer protected. See, e.g., Hoffa v. United States, 385 U.S. 293 (1966) (statements made to government informant); United States v. Miller, 425 U.S. 435 (1976) (financial information given to a bank). The doctrine also includes items given to a third party, such as garbage left on the curb to be picked up by the city. California v. Greenwood, 486 U.S. 35 (1988). 28 Smith, 442 U.S. at 744-45. 26
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which case the address on the outside of the letter is visible to the world),29 or travel to the other person’s house (in which case the travel itself would be visible to the world). Either way, law enforcement officials conducting an investigation could monitor whom you were speaking with (or at least the household or business with which you were communicating, which is all that a phone number tells them today). So although the result of Smith comports with the principles of Katz and its progeny, the Supreme Court’s rationale in the case is problematic. The rationale becomes even more problematic given the dramatic technological changes that have occurred since the case was decided. Today millions of pieces of e-mail are sent through the internet daily; each of them are routed through internet service providers (“ISP’s”) which are analogous to the automatic switching equipment that recorded the phone numbers in Smith’s day. One could argue that this “problem” is merely something for law professors to worry about, since all telephone and electronic communications (including pen registers and trap and trace devices) are covered by statutes such as the Electronic Communications Privacy Act (“ECPA”)30 that restrict law enforcement officials far more than the Fourth Amendment would even if it did apply to such surveillance. But as demonstrated with the recent passage of the PATRIOT Act, statutory protections are relatively easy to alter; they cannot be relied upon when the political climate shifts.31 If
29
See Ex Parte Jackson, 96 U.S. 727 (1877) (any information on the outside of a letter or package sent through the mail can be observed by law enforcement agents without a warrant). 30 Pub. L. No. 99-508, 100 Stat. 1848 (1986). 31 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 was passed on October 26, 2001, with very little debate. Critics are fond of pointing out that it was introduced hastily as a reaction to the terrorist attacks of September 11, implying that the Act was thrown together at the last minute and thus written carelessly in the heat of the moment. This is not entirely true: although there was little debate (and no House, Senate or Conference Report), the Patriot Act was a reconstituted version of the Anti-Terrorism Act of 2001, which had been drafted before
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the ECPA were amended to allow the government to read all the e-mails that are sent through the internet, the rationale of Smith v. Maryland would lead courts to uphold the new law, although it is likely that courts would follow the clear mandate of Katz and overrule or distinguish Smith somehow. As it turns out, what the government has done with a provision of the PATRIOT Act is to amend the ECPA to allow law enforcement to read the addresses of all the emails that are sent from a location—in other words, extended the pen/trap rule of Smith to electronic communications.32 If we accept that Smith makes sense, then the PATRIOT Act’s amendment is not actually very troubling. Again, the government has always been able to monitor with whom we are communicating—whether by personal meeting, by mail, or by telephone—so extending that ability to internet communications seems like a reasonable amendment. In other words, under the Katz analysis, this “virtual surveillance” is not a search—we have no reasonable expectation of privacy in the identity of the people we send e-mails to, nor in the identity of the people who e-mail us back. If we accept that phone pen/traps are not searches, (which one may or may not wish to accept, but which clearly the Supreme Court has accepted), this is little more than a logical adaptation of the doctrine for the new media of electronic communications.
September 11th. The Patriot Act was actually more liberal than its predecessor, chiefly in the sense that it contained sunset provisions for many of its broadest expansions of power. Nevertheless, the Patriot Act serves as a stark reminder that restrictions on surveillance that are not rooted in the Constitution are easily altered. For example, before the Patriot Act, law enforcement agents needed a warrant to gain subscriber information from a third-party internet provider. Now, law enforcement officials can force commercial providers to provide that information with simply a subpoena. See 18 U.S.C. 2703(c)(2) (amended by USA PATRIOT Act 210(1), 115 Stat. 272, 283). Thus, the actual reach of the Fourth Amendment becomes critical when Congress decides to scale back statutory protections as a limit to how far the scale-back is allowed to go. 32 See 18 U.S.C. 3123(a)(3)(A) (amended by USA PATRIOT Act 216(b)(1), 115 Stat. 272, 289). The Patriot Act also allows law enforcement to get a “roving” pen/trap authorization that will allow the agent to trace calls not just within the jurisdiction of the court issuing the authorization but also “anywhere in the United States.” See 18 U.S.C. 3123(a)(a), amended by USA PATRIOT Act 216(b)(1), 115 Stat. 272, 288-89.
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II.
Gathering Information--Hyper-Intrusive Searches A.
Title III’s standard
“Hyper-intrusive” searches are those that are so invasive of an individual’s privacy that the courts or Congress have decided that law enforcement must meet a higher standard than mere “probable cause” in order to undertake the surveillance. Although there are numerous different contexts in which courts have required a higher standard for hyper-intrusive searches,33 in this commentary we will focus on those that use new technologies: use of electronic listening devices, wiretapping of phones, interception of electronic transmissions, and covert video surveillance. Hyper-intrusive searches all share some or all of the following characteristics: they are overbroad (in that they retrieve far more information than they are seeking); they occur without notice, they are ongoing, and they pose an unusual threat to human dignity. Legislatures have recognized these factors and have created statutory rules and restrictions to control the use of such searches.34 However, before 1967, it was unclear whether the Fourth Amendment required anything extra beyond the usual requirement of a warrant before law enforcement agents could conduct hyper-intrusive searches with new technologies, and if so, the extent of these additional constraints.
33
For example, executing a search warrant without knocking and announcing the presence of law enforcement is more invasive than most searches and thus requires a specific showing of “exigent circumstances,--e.g. that the contraband being sought (usually narcotics) could be quickly and easily destroyed if the suspects were alerted to the search ahead of time. See, e.g., Ker v. California, 374 U.S. 24, 40-41. The Supreme Court has also held that a forcing an individual to undergo a surgical procedure in order to obtain evidence “implicates expectations of privacy and security” that are so great that the Fourth Amendment requires the government to demonstrate a significant need for the evidence in question. See Winston v. Lee, 470 U.S. 753 (1985). See generally Ric Simmons, Can Winston Save Us from Big Brother? The Need for Judicial Consistency in Regulating Hyper-Intrusive Searches, 55 RUTGERS L. REV. 547 (2003). 34 See, e.g., the Federal Communications Act of 1934, 47 U.S.C. § 605 (2000) (prohibiting wiretapping of phones after the Supreme Court had declared the practice constitutional in Olmstead v. United States, 277 U.S. 438, 466 (1928)).
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In 1967, the Supreme Court considered whether the scope of the restrictions set out by a state law governing wiretapping was sufficient to satisfy the Fourth Amendment. The law at issue came from New York state, and it was typical in many ways: it required law enforcement agents to provide particular descriptions of the person(s) being monitored, and of the purpose of the monitoring. In addition, the law stated that the order had to be issued by a state judge (not merely a magistrate) and would automatically expire (unless renewed for good cause) within sixty days.35 The Supreme Court struck down the New York law, stating that it did not meet the particularity requirements of the Fourth Amendment.36 Congress reacted swiftly by passing Title III of the Ominibus Crime Control and Safe Streets Wiretap Act of 1968, a set of provisions which has come to be known as “Title III” and has dominated the regulation of all emerging technology hyper-intrusive searches. Title III covers interception of all oral and wire communications. Before a law enforcement official can undertake such a search, she must seek and receive a “Title III” order” from a federal judge. The requirements for a Title III order are much greater than what is required for a standard search warrant: (1) the law enforcement officer must show that normal investigative procedures have been tried and failed, are unlikely to succeed, or are dangerous;37 (2) the surveillance must be conducted in a way that minimizes the interception of irrelevant information;38 (3) there must be probable cause to believe the interception will reveal evidence of a one of a list of specific predicate crimes;39 (4) the
35
N.Y. CRIM. PROC. § 813-A (1958) (overturned by Berger v. New York, 388 US. 41, 59 (1967)). 388 U.S. 41, 59 (1967). 37 18 U.S.C. § 2518(3)(c). 38 18 U.S.C. § 2518(5). 39 18 U.S.C. § 2518(4)(c). 36
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order must be authorized by a high-level Justice official and signed by a federal judge;40 and (5) the order is time-limited to thirty days (though the government agent can request an extension).41 Title III covers all electronic eavesdropping devices and wiretapping devices. These were the kind of devices at issue in the Berger case and they meet every criteria of a hyper-intrusive search: they are overbroad, since they not only intercept illicit information but also a good amount of innocent information. By their very nature they occur without notice and are ongoing, and precisely because individuals do not know they are being monitored, these searches can intercept the most private of information. Some of the statutory restrictions placed on these searches seek to partially remedy these factors—minimizing the innocent information that is intercepted and limiting the length of time for the ongoing search. Twenty years after Title III was passed, Congress expanded its requirements to the realm of electronic communications.42 The covert interception of e-mails and other electronic messages is also considered to be hyper-intrusive, for the same reasons as the interception of phone and oral communications, and so the same requirements apply.43 Berger was the Supreme Court’s last word on the application of the Fourth Amendment to electronic listening devices. Lower courts have unanimously approved of Title III, holding that a hyper-intrusive search using a bug or a wiretap is Constitutional if
40
18 U.S.C. § 2516. Id. 42 See ECPA, supra note 30. 43 See 18 U.S.C. § 2510(12) (1994) (including “electronic communications” as covered under the Title III requirements). 41
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it meets the Title III requirements.44 This means that the Title III requirements are sufficient to justify a hyper-intrusive search using these devices; however, it does not mean that they are absolutely required in order to satisfy the Fourth Amendment. In other words, it is theoretically possible that slightly less onerous requirements would be sufficient—all we know is that the Constitutional standard lies somewhere between the insufficient requirements of the New York law struck down in Berger (which were somewhat more onerous than those for a standard warrant), and the strict regimen proscribed in Title III.45 However, as we will see in the next section, the Title III requirements have been explicitly adopted by the appellate courts in the context of covert video surveillance, and based on that it is likely that any attempt to modify the statutory requirements downward would face Constitutional problems. D. Covert video surveillance and the “constitutionalization” of Title III Title III made no provision for covert video surveillance of private areas, probably because at the time (1968) it was hard to imagine cameras that could be small enough to secretly record an individual’s private home. Inexplicably, when Congress applied the Title III standards to electronic communications twenty years later, it did not
44
See, e.g., United States v. Cox, 462 F.2d 1293 (8th Cir. 1972); United States v. Cox, 449 F.2d 679 (10th Cir. 1971); United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973); United States v. Tortorello, 480 F.2d 764 (2d Cir. 1973). 45 The constitutional (as opposed to the statutory) requirements for interception of electronic transmissions is somewhat trickier. On the one hand, they are governed by the Title III statutory requirements, and courts have grafted the Title III requirements onto the Fourth Amendment, at least in the context of covert video surveillance. See infra notes 48-51 and accompanying text. On the other hand, Smith v. Maryland is still good law, and it technically allows government agents to intercept and read any communications that an individual has entrusted to a third party—even a mechanical third party. Most e-mail today is sent to a server maintained by an ISP (such as AOL) and then downloaded and read by the recipient. Smith’s rationale leads to the conclusion that the Fourth Amendment would allow the government unfettered access to any stored e-mail—which is essentially any e-mail that has been sent. This is another reason why Smith’s holding—which is sound—should be justified with a different rationale, such as that an individual has no expectation of privacy in the “address” information of the person to whom he is speaking. See supra notes 24-32and accompanying text.
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extend the extra requirements to video surveillance.46 Thus, federal statutory law is silent on the legality of covert video surveillance of private areas.47 The first appellate court to address the constitutionality of covert video surveillance was the Seventh Circuit, and the court made it clear that not only was this activity a search, it was a hyper-intrusive search, qualitatively different from most other searches. Therefore, a higher standard applied to these searches, and even a warrant might not be enough to make the search “reasonable:” …[A] search could be unreasonable, though conducted pursuant to an otherwise valid warrant, by intruding on personal privacy to an extent disproportionate to the likely benefits from obtaining fuller compliance with the law.48 Here for the first time since Berger a federal appellate court was considering the constitutionality of a hyper-intrusive search using new technologies. The Seventh Circuit then did something quite remarkable: it imported the statutory particularity requirements from Title III into Fourth Amendment jurisprudence, and held that in the context of covert video surveillance, the Fourth Amendment required no more and no less than the statutory requirements set out by Congress in the context of electronic listening devices.49 Since then, six other courts have accepted this interpretation of the Fourth Amendment,50
46
In fact, Congress explicitly stated that the ECPA did not apply to video surveillance. The Senate committee report repeats the statutory definition of "aural acquisition" and remarks: "Other forms of surveillance are not within the proposed legislation. " S. Rep. No. 1097, 90th Cong., 2d Sess. 90 (1968). See also United States v. Torres, 751 U.S. 875, 883 (7th Cir. 1984) (holding that the plain meaning and legislative intent of the ECPA clearly support the finding that the statute does not cover video surveillance). Of course, if the video surveillance includes a sound recording, it will be regulated by the Title III requirements. 47 Video surveillance of public areas poses no Fourth Amendment issues at all, since individuals have no reasonable expectation of privacy in their actions in public. See United States v. Harris, 390 U.S. 234, 236 (1968) (holding that there is no Fourth Amendment protection for items in “plain view” of a police officer). 48 United States v. Torres, 751 U.S. 875, 883 (7th Cir. 1984). 49 Id. at 885. 50 See United States v. Biasucci, 786 F.2d 504, 510 (2d. Cir), cert. denied, 479 U.S. 827 (1986); United States v. Cuevas-Sanchez, 821 F.2d 248, 252 (5th Cir. 1987); United States v. Mesa-Rincon, 911 F.2d 1433, 1437 (10th Cir. 1990); United States v. Koyomejian et. al., 970 F.2d 536, 542, cert. denied, 506 U.S. 1005
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and so in effect the Title III requirements have become “constitutionalized,” at least for video surveillance. Given this elevation of Title III standards to the constitutional level in this context, it seems likely that the courts would insist on these standards for the other forms of hyper-intrusive searches that use new technology—use of electronic listening devices, wiretapping, and interception of electronic communications.51 In other words, although it is theoretically possible for a legislature to lower the requirements for hyperintrusive searches through statutory amendment, any Congress that tried to do so would likely find that the statutory scheme of their own creation was now carved indelibly into Fourth amendment jurisprudence.
III.
Collecting and Manipulating Data— In this section we consider high volume collection—technologies that collect
and/or manipulate massive amounts of data from various sources, and subsequently sift through the information to find the tiny percentage that is relevant to law enforcement. These technologies can be used on data in the public domain, or they can be “piggybacked” onto either of the first two categories of surveillance. For example, law enforcement officials are allowed to observe individuals in public places and even take their pictures to compare them with known fugitives. Facial recognition technology adds a high-volume collection aspect to this procedure: the device takes pictures of thousands of individuals in a public place and then compares the images to photographs of known felons. Conversely, a high-volume collection tool could be used to collect or sort the data collected from a type of virtual surveillance: a computer program could be designed to (1992); United States v. Falls, 34 F.3d 674, 680 (8th Cir. 1994); United States v. Williams, 124 F.3d 411, 416 (3rd Cir. 1997). 51 Although as noted above the Court might theoretically allow the interception of “stored” e-mails under the rationale of the Smith case. See supra note 45.
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analyze thousands of images produced by a satellite camera in order to detect illegal activity, such as unauthorized logging in national forest land. When one of these images from the surveillance seemed suspicious, it might be passed along to a human agent who would investigate further. Or a computer program could be used to sift through thousands of e-mails being sent from a certain target, and presuming the program read through the content of the e-mails searching for specific names or word, it would be conducting a hyper-intrusive search.52 These technologies do not do things that are otherwise impossible without the technology, but they do increase—sometimes dramatically—the efficiency of such searches. The increase in efficiency is so great that certain methods of surveillance that would otherwise be infeasible become relatively easy. A team of law enforcement agents working around the clock could conceivably look at every image produced by a satellite camera, or every piece of e-mail that passes through a server, but the amount of resources it would require would make the search practically impossible. Thus, courts are faced with a question as to whether adding a “high-volume collection” device on to an existing surveillance alters the fundamental nature of the search and transforms a non-search into a search, a search into a hyper-intrusive search, or a hyper-intrusive search into an even more intrusive search that requires greater restrictions. As we shall see, the answer to this question is no—the rules regarding the surveillance or search will be identical with or without the addition of the high volume collection/manipulation device. To see this, we
52
See 18 U.S.C. 2510(12) (1994) (including “electronic communications” as covered under the Title III requirements). The government-sponsored software “Carnivore” is designed to do just this. See infra notes 61-65 and accompanying text. Of course, under Smith, if the program only read through the address lines of the e-mails, it would merely be conducting a virtual surveillance, not a hyper-intrusive search or even a search—and under the recent loosening of Title III restrictions by the Patriot Act, this would be allowed with fewer statutory restrictions as well. See supra notes23-32 and accompanying text.
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will examine three different forms of high-volume collection: homing devices, facial recognition technology, and the government’s “Carnivore” system. A.
Homing devices
One example of the “high-volume collection” technology is electronic tracers that are attached to an object or an automobile in order to track the target’s movements. These devices allow law enforcement to monitor the location of any number of individuals easily and efficiently, and are an early example of high-volume collection technology applied to information in the public domain—law enforcement officials driving in a car are perfectly free to follow a car or an automobile wherever it goes in public. Thus, using the electronic tracer merely allows law enforcement to “follow” an individual or a car much more efficiently and covertly. The Supreme Court ruled on the constitutionality of such methods in the 1983 case of United States v. Knotts.53 In Knotts, law enforcement officials inserted a tracer into a container of chemicals purchased by the defendants, and monitored the location of the container as the defendants drove it up to a cabin in the mountains. The Supreme Court held that any information revealed about the location of the container while it was visible from the public domain was fair game. As the Court noted “[v]isual surveillance from public places along [the] route or adjoining [defendant’s] premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but also on the use of the [tracer]…does not alter the situation.”54
53 54
460 U.S. 276 (1983). Id. at 282.
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The Court made it clear that if the defendant had moved the container around inside the cabin, where law enforcement officials could not ordinarily see what was happening, the government could not use the electronic tracer to monitor the movement.55 In other words, as long as the high-volume data collection did not “see” anything that an ordinary law enforcement official could not have seen, the nature of the surveillance does not change—a surveillance of movements in public locations is not a search, regardless of what method is used to conduct the surveillance or how efficient the method might be. B.
Facial Recognition Technology
Facial recognition technology is one of the newest forms of high-volume collection devices. These devices take pictures of individuals in a crowd and then compare the facial features of each individual to pictures of known fugitives, using standard biometric measurements (distance between the eyes, length of nose, etc.). In theory, this technology would allow law enforcement to scan through thousands of faces in a crowd and alert officers to the presence of any known fugitives that might be present. This technology was used at the Super Bowl in 2001in Tampa Bay, and the government has experimented with using it at the United States-Mexico border.56 It has also been adapted for use in numerous airports across the country to scan for terrorist suspects.57 Although no court has yet to rule on the constitutionality of this type of surveillance, the Knotts case and the Katz doctrine lead to the nearly inevitable 55
Id. See http://archive.aclu.org/issues/privacy/facial_recognition_faq.html. 57 See John J Brogan, Facing the Music: The Dubious Constitutionality of Facial Recognition Technology 25 Hastings Comm. & Ent. L.J. 65, 80-81 (2002). In practice, the technology has not been very effective. For example, in the Super Bowl at Tampa Bay, of the tens of thousands of individuals scanned, only nineteen were flagged, and some of them were false positives. Numerous studies have shown that the technology fails to identify target individuals if the camera angle has changed, or if the target has grown or shaved facial hair. Id. However, the current level of viability of the technology does not affect whether it is constitutional; this commentary assumes that eventually such software will become sophisticated enough to be accurate and widespread. 56
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conclusion that the use of this technology—provided it occurs in a public place—is not a search.58 In order to find that surveillance of individuals in a public place is a violation of the Fourth Amendment, the Court would have to reconsider one of the central aspects of the Katz doctrine—that a person is only protected if they enjoy a reasonable expectation of privacy in their actions. When this standard is applied to activity in the public sphere, it is hard to conclude that the Fourth Amendment is implicated. Some commentators have argued that a “seizure” of some kind occurs when a person’s picture is taken, akin to (but less than) a “stop and frisk” situation that is regulated by Terry v. Ohio.59 Given the fact that the individuals who are scanned are not stopped or held for any amount of time—indeed, they may not even know they are being scanned—this is a difficult argument to make. Although it may seem troublesome that everything we do in public can now be monitored with cameras and compared to massive computer databases, the solution is to undertake legislative action. A person has no reasonable expectation of privacy in their activity in public,60 regardless of how the government collects that data or how they choose to process it. C.
Carnivore
“Carnivore” is a poorly-named government surveillance tool61 which does to electronic transmissions over the internet what facial recognition technology does to
58
Most commentators appear agree on this issue, though most do so reluctantly. See, e.g., Christopher S. Milligan, Facial Recognition Technology, Video Surveillance, and Privacy, 9 S. CAL. INTERDIS. L.J. 295, 318 (1999); Thornbugh, Comment, Face Recognition Technology: The Potential Orwellian Implications and Constitutionality of Current Uses under the Fourth Amendment, 20 J. MARSHALL J. COMPUTER & INFO. L. 321 (2001). But see Brogan, supra note 57, at 86-90. 59 392 U.S. 1, 16 (1968). See Brogan, supra note 57 at 86-90. 60 See United States v. Harris, 390 U.S. 234, 236 (1968) (holding that there is no Fourth Amendment protection for items in “plain view” of a police officer). 61 The device was named “Carnivore” because it is actually less invasive than other means of monitoring electronic communications—instead of reading through all the e-mails that pass through the system, it searches only for those from or to a target individual (the meat) and lets the rest pass by untouched.
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faces in a crowd. The FBI attaches Carnivore to an Internet Service Provider, where it searches for transmissions that come from or to a certain individual. When it identifies a transmission related to a target individual, it stores the transmission for a law enforcement official to read.62 Since this interception and reading of the e-mails is covered under Title III (and thus protected by statute and by the Constitution), the government must acquire a Title III order before installing Carnivore onto an ISP to seek out messages. Carnivore presents us with the same problem we saw in Knotts and with facial recognition technology—specifically, does the high-volume aspect of Carnivore’s work somehow change the nature of the search and make it more intrusive? In this context we should remember that intercepting and reading e-mails is already a hyper-intrusive search, subject to greater restrictions than we would put on a standard search. If law enforcement agents use special software to sort through great numbers of e-mails, essentially trolling the entire internet for the transmissions that they are authorized by the Title III order to intercept, does the search become even more intrusive, and should it be subject to even greater restrictions than a standard wiretap or reading of electronic mail? There appears to be no reason to do so. In fact, the actual sifting through e-mails which is done by Carnivore does not itself implicate the Fourth Amendment—it is equivalent to an FBI agent going to the post office and looking at the writing on the envelopes of the letters there in order to find the ones that are addressed to a specific individual.63 Of
However, the name has proved to be so unappetizing that the FBI has re-christened the system the “DCS1000.” See Jennifer DiSabatino, FBI's Carnivore Gets a Name Change, ComputerWorld, February 12, 2001 62 Id. 63 The address on the outside of a letter is public information, and a law enforcement officer reading that information does not implicate the Fourth Amendment. Ex Parte Jackson, 96 U.S. 727 (1877).
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course, the sifting itself is pointless unless the law enforcement official then has the authority to open and read the target letters (or e-mails) once they have been sorted out— and this is a hyper-intrusive search that requires compliance with the Title III rules. But the actual sifting itself is nothing more than looking at addresses of the e-mails—which, whether analogized to regular mail64 or telephone calls65 does not implicate the Fourth Amendment.
V. Conclusion
It is undeniable that new technology, if unchecked by courts and policymakers, has the potential to erode basic liberty and privacy rights. Some technologies allow law enforcement to conduct hyper-intrusive searches that are fundamentally more invasive than traditional searches. Once a court acknowledges that a certain kind of search is more intrusive than a standard search, there are a number of possible responses. If a search is extremely overbroad or abhorrent to human dignity, the search could be banned altogether. If not, policymakers could force the government agents to meet stricter requirements for these searches. This was the route chosen by Congress after Berger (in the case of electronic eavesdropping, wiretapping and interception of electronic transmissions). Courts have adopted this method for covert video surveillance, and it seems likely that the same standards would now be constitutionally required for any hyper-intrusive search now covered by Title III. These kinds of higher standards—and this kind of vigilance and critical examination of the uses of new technologies—is
64 65
Id. Smith v. Maryland, 442 U.S. 735, 742-43 (1979).
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essential if we are to prevent new technologies from revealing intimate details to law enforcement officials. But not all surveillances involving new technologies are by definition hyperintrusive—some may not even be “searches” at all. Katz tells us that in evaluating virtual searches we must ask if we have a reasonable expectation of privacy in the information being sought. In short, we shouldn’t let the technology being used scare us (as when the government proposes using satellite imagery to examine open fields, binary gun detectors to look under our clothes, or software to intercept and record the addresses in our emails). On the other hand, we shouldn’t net the “non-intrusive” nature of the technology being used lull us into a false sense of security (as when the government agent stands across the street and unobtrusively records the heat emanating from our house or uses a slightly different version of the same software to intercept and record the content of our e-mails). We should always ask: what is the nature of the information the government is receiving? If the information is reasonably expected to be private, then the search is unconstitutional (and is likely hyper-intrusive), regardless of the method. High-volume data technologies that merely increase the efficiency of investigations that law enforcement agents should be evaluated with the same questions: what is the nature of the information that is being collected and sorted? Just because a certain kind of surveillance is being conducted more efficiently by a machine does not mean that the nature of the surveillance is fundamentally altered. If a piece of software sifts through all the e-mail on a server and delivers specific packets to a human law enforcement officer, it is still the reading of the e-mail itself which should concern us, not the sorting through what is essentially public information.
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In some cases the use of virtual surveillance or high-volume data collectors can increase both liberty and efficiency. For example, compare the use of facial recognition technology at a concert or a sporting event with its low-tech equivalent: asking every individual to stand against a wall for fifteen seconds while a stranger in a uniform scrutinizes their face and compares it to a sheet of photographs. Furthermore, by focusing more specifically on conduct that has a higher likelihood of being illegal, virtual surveillance techniques can provide increased privacy compared to non-mechanical methods: a magnetometer, for example, only scans for metal items, which have a higher probability of being weapons than other items. Using such devices in airports provides an increase in privacy and dignity compared to a non-focused manual search such as a full body pat-down or strip search for every passenger who enters through the terminal. It is true that both virtual surveillance techniques and high-volume collectors currently have a significant number of “false positives” that require human agents to investigate a suspect unnecessarily (which detracts from both efficiency and liberty). However, as technology gets more sophisticated and refined machines and software will be better able to focus on illegal behavior and thus narrow the scope of the surveillance— perhaps even to the point where the surveillance only alerts a human law enforcement agent when there is a near certainty of illicit conduct. At that point, only the mindless computers and detectors will “know” the private information about what we are carrying, saying or writing, and they will quickly and unconsciously examine and discard any private innocent information they discover. In the meantime, the human law enforcement agents will leave us alone.
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