As Capitol police officers move to block the doors to the JFC meeting, protesters pull out their phones to record. (Henry Redman | Wisconsin Examiner)
Pen register and trap/trace devices, which intercept phone numbers dialed on outgoing and incoming telephone calls, have long been basic tools in the surveillance tool-kit of law enforcement. Acting as a sort of wiretap, the technologies have evolved significantly over the decades, as have the devices they target. Sen. Andre Jacque (R-DePere) said this evolution is a main reason he’s now introducing legislation that would change the definitions of pen register and trap/trace devices. The bill would also modify the process used to obtain court orders for their use.
Jacque, who testified on the bill (SB-241) on June 2 before the Senate Committee on Judiciary and Public Safety, drew inspiration from Wisconsin’s law enforcement community. “I first became aware of the need for this legislation after discussions with DOJ [Department of Justice], the Wisconsin District Attorney’s Association and local law enforcement,” said Jacque. The bill is co-sponsored by Rep. Jeffrey Mursau (R-Crivitz), Rep. David Armstrong (R-Rice Lake), Rep. Mike Kuglitsch (R-New Berlin), Rep. Chuck Wichgers (R-Muskego) and Rep. Samba Baldeh (D-Madison), who’s the lone Democrat on the bill thus far.
Pen register and trap and trace devices, in essence, are methods of intercepting information about device-based communications. When the devices were first being utilized, a pen register on, say, a pay phone, would give officers access to details such as phone numbers dialed and call duration.
The intercepted data was limited, however, and officers would still need to identify who was using the monitored phones. Sometimes that would mean tedious work like physically watching a pay phone for hours to see who used it at what time. And just because a pen register was in place didn’t mean officers were able to actually listen to calls. Even so, pen registers and trap/trace devices are technically considered forms of wiretaps.
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Methods of interception have improved over time. Powerful devices like cell site simulators, better known as “Stingrays,” after a particular brand name, are capable of gathering the same information as a pen register and trap/trace device, and much more.
Jacque noted in his testimony that pen registers are currently defined as “a device that records or decodes electronic or other impulses that identify the numbers dialed or transmitted on a telephone line. And the attorney general or a district attorney can apply for a court order to install a pen register or a trap/trace device for the purpose of furthering a criminal investigation.”
The senator argued that under current definitions, “state law enforcement and prosecutors are struggling with enforceability and applicability of warrants for the placement of pen registers when it comes to modern electronic devices’ interactions with social media. With the growing popularity of social media for carrying out criminal activity, this has been a major hurdle for successful investigations.”
Jacque said that the bill “expands our current statutory definition to achieve parity with federal law, which has already adapted to the times.” He expressed hope that “these updates will provide clarity in light of technological advances to ensure social media communications are made available within the Wisconsin legal system when the existing standards for a warrant are met [to] aid members of law enforcement in successfully investigating crimes.”
Laws sometimes appear to be out-paced by the actual capabilities, technology and activities of law enforcement. During the protests of 2020, it became clear that even local agencies had accumulated vast and sophisticated capabilities around social media. Law enforcement in Milwaukee, Wauwatosa and Kenosha used social media to track the activities and identities of protesters. In many cases, these individuals were mailed hefty citations or arrested after being identified by police.
Part of an internal Wauwatosa PD powerpoint presentation made after a gun was fired outside the home of former officer Joseph Mensah during a protest in August, 2020.Wauwatosa PD social media slides
Milwaukee PD maintains its own Virtual Investigations Unit (VIU) as part of the city’s fusion center. Acting as a hub for collaboration, intelligence gathering, and counter-terrorism work Milwaukee’s fusion center has a variety of capabilities. These range from social media analysis to technology used to track and crack smartphones to accessing certain pole cameras and operating the city’s shot-spotter audio system which detects gunshots.
Protester surveillance in Wauwatosa was largely handled by Wauwatosa PD’s Investigative Bureau. Personnel from the Special Operations Group (SOG) and other units created lists of protesters, discussed pursuing warrants for social media profiles, and used Facebook Live videos to monitor marches. Federal agencies and resources were also, and often discreetly, involved in protest actions in all three cities.
Opening up the courts
A facet of Jacque’s bill which his written testimony did not mention is how it affects court orders for pen registers and trap/trace devices. Under current law, attorney generals and district attorneys must apply for court orders in the courts of the county where the device would be located. Jacque’s bill would allow law enforcement to seek such court orders in any county, not just the county where the device would be located.
Mike-Katz Lacabe, director of research at the Center for Human Rights and Privacy, wasn’t shocked by the part of the bill that affects court orders. “The part of the legislation allowing the DA to apply for installation/extension of pen register or trap/trace device in any county is not that unusual and has precedent,” Katz-Lacabe told Wisconsin Examiner. “Given the nature of crime involving phones, this doesn’t seem unreasonable.”
Milwaukee PD’s acting chief Jeffery Norman, when asked about oversight of surveillance technologies, expressed confidence in the court’s vetting process. “There are a lot of rules on the federal level, state level and also local level in regards to our procedures,” Norman said during a town hall event. “So I believe that process is vetted properly.”
Inspector Paul Formolo, who oversees Milwaukee PD’s fusion center, added in a separate interview that phone tracking orders go through layers of review from an immediate supervisor all the way up to the judge, who ultimately approves or denies the request. Formolo noted that, to the best of his knowledge, only certain prosecutors and judges are qualified to review such warrants or affidavits. He also said that the fusion center’s social media monitoring largely utilizes publicly accessible content, and that warrants are required to go any deeper.
A spokesperson for Rep. Baldeh said that he was initially on the fence about Jacque’s pen register bill. “We are typically wary of co-sponsoring legislative proposals from the GOP caucus,” David Ahrens, a spokesperson for Baldeh, told Wisconsin Examiner. “However, in this instance, we contacted the attorney general’s office to get their assessment of the proposal. They responded that they asked Sen. Jacque to propose the measure and, in part, drafted the bill.”
Attorney General Josh Kaul, Ahrens added, “is not seeking technologies or investigative methods that are abusive of an individual’s rights.”
Ahrens said Baldeh is conscious of the privacy implications of surveillance. “Privacy issues are important,” Ahrens added. “That’s why these activities require a court order. There are requirements for a judge to issue an order to use these devices. Obviously, there have been many cases of abuse by law enforcement at every level. But I don’t think it would be in the public interest to no longer use electronic records because of cases of abuse.” In 2016, the American Civil Liberties Union found that Milwaukee officers were not forthcoming to judges about the fact that they had used Stingrays to locate suspects.
“The purpose of the bill, generally, is to make the law relevant to the technology we commonly use,” said Ahrens. “The current law’s reliance on telephones-only is antiquated and as such limits investigations.” After looking at the bill’s language, Katz-Lacabe suggested that the kinds of communications the bill may affect go beyond what people may generally think of as “social media,” like Twitter or Facebook.
“The expansion of the definition of a pen register and trap/trace device seems to be designed to account for Voice over Internet Protocols (VoIP), in which phone calls are frequently being handled by internet routing and circuits and not POTS [Plain Old Telephone Service],” Katz-Lacabe explained. Popular services like Skype, Hangouts, and WhatsApp are able to use VoIP, and thus may apply to the pen register bill. Other applications and services like Signal either use other protocols, or may be able to protect some information against these kinds of intercepts.
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