ACLU Equips Lawyers to Uncover State Surveillance Secrets

The American Civil Liberties Union of Massachusetts is launching a new online resource this week aimed at helping criminal defense attorneys expose whether police used surveillance technologies to secretly build cases against their clients. The toolkit, which the organization calls a first-of-its-kind initiative, provides pre-drafted legal motions that, if approved by a judge, compel prosecutors to disclose whether tools like facial recognition, automatic license plate readers, or gunshot detection systems were deployed during an investigation.

The motions cover a wide spectrum of technologies, from “stingray” phone trackers and commercially sold location data to AI-generated police reports and forensic tools that unlock phones or extract data from car infotainment systems. They also include preservation motions that demand surveillance data be saved before automatic deletion, targeting both government agencies and private vendors. The legal foundation for these filings rests on a 1963 criminal law principle requiring prosecutors to share all evidence that could benefit the defense. Access to the motions will be restricted to verified defense attorneys through a password-protected library.

Jennifer Herrmann, a staff attorney at the ACLU of Massachusetts and one of the toolkit’s authors, says the group is fighting on two fronts against unchecked surveillance. One approach involves pressuring cities to abandon tools like Flock license plate readers and ShotSpotter gunshot detection systems entirely. The other equips defense lawyers to expose surveillance practices in court. “The amount of time that it can take for that initial use of technology and investigation to actually get to a court and constitutional challenge is long,” Herrmann explains. The motions, she adds, allow attorneys to “challenge what has already happened in the past,” creating a legal record that applies to future tools as well.

This initiative addresses a persistent gap between when police adopt new surveillance technology and when courts finally rule on its legality. Most Americans had cell phones by the late 1990s, but the U. S. Supreme Court didn’t require a warrant for cell phone location data until 2018. The delay stems not only from slow judicial processes but also from the fact that technologies with the poorest disclosure records face fewer court challenges. A defendant cannot contest a tool they were never told about.

In materials accompanying the launch, the ACLU of Massachusetts notes that police sometimes use these technologies “without even disclosing their use to the prosecutors handling the case.” For years, the FBI required local police to sign secrecy agreements before using cell-site simulators, suitcase-sized devices known as stingrays that impersonate cell towers to locate phones secretly. In Baltimore, one such agreement instructed prosecutors to drop cases rather than reveal the device in court, even as police used it over 4,300 times from 2007 to 2015. FBI records later obtained by the ACLU show these agreements continued until at least 2020.

In Missouri, investigators used Fog Reveal, a commercial tool that maps movements using app-harvested location data, during a 2017 murder investigation. The Associated Press found no mention of it in trial exhibits that helped convict the victim’s wife. Similarly, when Louisiana authorities obtained a 2022 arrest warrant for Randal Quran Reid, a Georgia man misidentified by facial recognition and jailed for nearly a week, the warrant attributed his identification to “a credible source” rather than software, according to The Washington Post. The document authorizing his arrest actively obscured how police came to suspect him.