An anonymous Facebook plea recently went viral, asking people to check in to the Standing Rock Indian Reservation to thwart police surveillance of the Dakota Access pipeline protesters. The plea was based on the rumor that police were monitoring social media to identify protesters and that inaccurate check-ins would confuse them – a rumor that has swept the Internet before. This time, more than a million people responded.
But at the protest camp, the Morton County Sheriff’s Department denied following Facebook check-ins. And, the Sacred Stone camp indicated the plea did not originate with them, although they appreciated the gesture of solidarity. Indeed, it is unlikely the department was relying only on Facebook check-ins to monitor protesters. If the department is conducting social media surveillance, it would probably use more sophisticated means than tracking self-reported locations. Nonetheless, law enforcement and private surveillance of the pipeline protesters is a real and present concern. In fact, this very graspable, if false, worry about surveillance obscures more subtle and important ones.
My colleague Collin Anderson and I have been tracking surveillance of the pipeline protesters since August. Here, we discuss what we know about surveillance at the Dakota Access pipeline protests and sketch the likely parameters of what we don’t know. We also outline how we aim to find out more so that we can produce a reliable report of surveillance practices around Standing Rock.
The North Dakota situation involves two groups that have traditionally been subject to extensive surveillance. Additionally, any tools at work here are more notable because the state and local actors employing them are not particularly well-resourced. Any surveillance going on at Standing Rock demonstrates the pervasiveness of these surveillance practices.
Regardless of one’s opinion of the Dakota Access pipeline or the protests against it, the rules governing local and state use of electronic surveillance equipment in the US are opaque, piecemeal, and subject to fluctuations in the political climate. Guidance from the federal government on this issue is also changeable. The upcoming change in administration in Washington also highlights how important transparency and scrutiny of these practices and the rules that govern them are.
The Need for Informed Public Debate
Protesters have repeatedly claimed that authorities are engaging in surveillance and disrupting communications around the contested pipeline site. Pervasive physical monitoring, such as filming cars passing through police checkpoints, adds to the perception that local authorities are systematically identifying protesters. The increasing number of arrests also adds to the potential implications of such surveillance. However, a reliable narrative of surveillance of the pipeline protests remains elusive. Law enforcement agencies are generally close-lipped about their use of electronic surveillance in investigations, and media reports often relay second-hand information that is not rigorously sourced.
This lack of accurate data is troubling from a public accountability standpoint: both protesters and law enforcement or company representatives can advance their own narratives. In the absence of trustworthy information, the public might assume that phenomena such as poor mobile signal or battery life indicates cell phone surveillance, while the police can deny use of surveillance, and misinformation persists.
What We Know: Helicopter Surveillance
In addition to filming license plates at checkpoints, at least one local law enforcement agency, the Morton County Sheriff’s Department, has used helicopters to conduct aerial surveillance of pipeline protesters. Individuals in the Sacred Stone Camp and other protesters have posted images to social media of a recurring set of helicopters. Police have also released aerial night vision footage. The Sheriff’s Department confirmed that they used helicopters for surveillance in a press release on October 23, in which they discussed a police helicopter encountering a drone presumably belonging to protesters.
Although use of aerial surveillance is a common law enforcement practice, guidelines and limitations on its use exist, and these guidelines may have been violated in North Dakota. Someone – we don’t know who – broke the law in the course of conducting this surveillance. An aircraft flying over the protest camps carried an altered FAA registration number. Altering a registration number carries with it a fine and/or imprisonment for up to three years, according to federal law. Journalist Georgianne Neinaber investigated this alteration, submitting FOIA requests to the FAA. A document returned as part of the FAA’s response reports that the owner of a different helicopter company, Double M Helicopters, claimed the registration number was altered in support of law enforcement officials as a protection against threats. However, the aircraft in question is actually registered to Johnson Flying, not Double M. We still don’t know definitively the relationship between law enforcement, Double M, and Johnson Flying, or who requested the altered registration number. We have submitted FOIA requests to learn more.
Aerial surveillance is not necessarily illegal and has become fairly routine. The Supreme Court has ruled that “the Fourth Amendment does not require the police traveling in the public airways at an altitude of 400 feet to obtain a warrant in order to observe what is visible to the naked eye.” Still, the presence of bad faith practices in physical surveillance raises at Standing Rock concerns about the same possibility in electronic surveillance.
The Reasonable Realm of Possibility
As one petition calling for the FCC to investigate reports of cell phone surveillances suggests, there’s still a lot the public does not know about the use of physical and electronic surveillance in response to the Dakota Access pipeline protests.
Let’s now explore what we believe to be the reasonable realm of possible surveillance, which formed the basis for our recent FOIA requests to local and state agencies. We based these hypotheses on conversations with local actors and the practices of other local and state law enforcement actors elsewhere, especially in places that have experienced large-scale protests.
Morton County, North Dakota (pop. 28,990) makes for a unique setting for the clash between protesters and police. Resource and training constraints are different in North Dakota, highlighting the need to examine the borrowing of tools, tactics, or trainees from other police departments – which can exacerbate concerns about the lack or appropriateness of legal frameworks governing the use of electronic surveillance. According to the Sheriff’s Department, local police have received equipment from other North Dakota counties and nearly 1,300 additional personnel from nine states. At least three of these states possess some of the tools mentioned below.
Cell Phone Surveillance
Media reports suggest ongoing cell phone surveillance at the pipeline protests, citing “tell-tale” signs of devices that simulate cell phone towers for the purpose of surveillance, including rapidly draining batteries and poor signal quality. These devices (often referred to as Stingrays) trick phones into transmitting information to them. If Stingrays are being used in Morton County, their ability to identify participants and capture communication could have substantial privacy implications that would warrant public scrutiny.
Yet because they are difficult to detect, as is identifying the actor operating them, we do not know definitively whether or not Stingrays have been operating in the pipeline area (though Stingrays have recently been used in cities with active Black Lives Matter protests). Complaints about the quality of connectivity have plagued Sacred Stone Camp and surrounding areas from well before the protests and led Standing Rock to establish its own mobile provider. Weak signals or searching for signals, as often happens in rural locations, can also drain batteries in ways that could suggest a Stingray.
Still, at least sixty-eight agencies in twenty-three U.S. states have Stingray equipment. At least three states that have sent assistance to law enforcement in North Dakota possess such equipment – Wisconsin, Minnesota, and Indiana – raising the possibility that equipment could have been shared. Shared devices raise more questions about effective oversight – would the North Dakotan agencies borrowing such equipment have adequate use policies in place? To facilitate an informed public dialogue on effective public accountability on the use of Stingrays and similar devices, we need stronger proof of their use in North Dakota. To this end, we have submitted related FOIA requests to the agencies listed at the end of this post.
Social Media Surveillance
Law enforcement agencies have conducted social media surveillance of other recent protests, including Black Lives Matter demonstrations. If law enforcement or private actors are conducting surveillance of pipeline protester social media, they could be relying on software programs that automate collection of a range of information from social media, rather than manually monitoring Facebook check-ins. Tools like Geofeedia provide sophisticated social media surveillance that can pull together information from different sources and collect public or topic-based data in an automated manner – gathering much more information than a typical user browsing Facebook profiles manually could. For instance, the Baltimore County Police had a partnership with Geofeedia, and apparently used it to monitor protesters during protests over police racial bias.
The North Dakota Department of Emergency Services denied a FOIA request about social media surveillance filed by journalist Christopher Thomas, claiming three exemptions from public disclosure. The denial is intriguing, since other agencies, such as the North Dakota National Guard, replied to Thomas’ request with no relevant documents. Our FOIA requests to the agencies listed at the end of the post complement efforts on this topic by Thomas and others.
Then there is the question of the “false” Facebook check-ins. Some have wondered whether, in theory, checking in to Standing Rock on Facebook from afar constitutes hindering law enforcement. Under North Dakota law, hindering law enforcement includes preventing the discovery of a criminal or knowingly giving false information to an officer. We believe an argument that such check-ins constitute interference is questionable. Facebook is a multi-use platform, not primarily intended for law enforcement use. Anecdotally, Facebook users often check-in to places where they are not physically present (e.g. “dreaming of the beach…”). Checking in to Standing Rock could be defined as “misleading” under Facebook terms of service, but doing so falls well within the typical vernacular use of Facebook and is generally understood by Facebook users. Using a social media tool not intended for a police audience in a generally accepted manner seems unlikely to qualify as hindrance.
Drone Surveillance
We have even fewer signs of drones being used by law enforcement or the pipeline company. That said, we have received some reports of drones flying at night, when they are harder to detect and identify, and other small aircraft are known to fly in the area. Protesters have been seen using drones, and North Dakota has a unique history with respect to drones and policing, both in their use and in legislation regarding their use. North Dakota law does require warrants for law enforcement drone flights in many situations, and also requires documentation of all unmanned surveillance flights. We have filed FOIA requests with multiple agencies, listed below, to find out more.
What We’re Doing to Find Out More
We have submitted requests under North Dakota’s public records access law on cell site simulators, helicopter surveillance, social media surveillance, and drone surveillance to the following agencies: the North Dakota Attorney General’s Office (seeking information from the North Dakota Bureau of Criminal Investigation and the North Dakota State and Local Intelligence Center), the North Dakota Department of Emergency Services, the North Dakota Highway Patrol, the Morton County Sheriff’s Department, and the North Dakota National Guard. Our efforts complement ongoing efforts by the North Dakota ACLU and the National Lawyer’s Guild, as well as journalists from Unicorn Riot. Promoting an educated public discourse on the use of electronic surveillance tactics by law enforcement requires rigorous documentation, backed by data and connected to its broader implications.
Thanks to our colleagues in North Dakota who contributed to this research. If you want to help us document surveillance, you can reach the authors at mfidler@cyber.harvard.edu