Law enforcement and intelligence agencies around the world use facial recognition technology and other AI in investigations to track targets’ movements and as evidence in prosecutions. While books and movies often portray this technology as highly advanced and foolproof, reality can be quite different. Recent cases have demonstrated that facial recognition technology is far from foolproof and may lead to even more misidentifications when identifying people of color.

Companies such as Clearview AI have contracts with law enforcement agencies across the United States. Clearview scrapes billions of photos from social media for its database. Photos from LinkedIn, Facebook, Instagram and the public web are uploaded to its database. For an annual fee, law enforcement has access to a face-based search engine. Obviously, a number of factors affect the reliability of the search results. The quality and resolution of the surveillance photo used for the search, the ethnicity of the subject, and the number and age of the comparison photos can all affect the results.

The most troubling, however, is that it appears that in a number of cases law enforcement failed to use other investigative means before seeking arrest warrants for the individuals “identified” by facial recognition software. As Clearview’s CEO made clear to the New York Times recently, when its technology comes up with an “initial result” that should be the starting point in law enforcement’s investigation, not the conclusion. In other words, facial recognition technology should only be used as one investigative tool that may provide a lead in an investigation that must then be coupled with other basic investigative steps.

A recent example of this is the case of Randal Quran Reid who was driving near Atlanta when he was stopped and arrested for alleged thefts in Louisiana. The police in Baton Rouge and Jefferson Parish had apparently used facial recognition from store videos purporting to show Mr. Reid stealing valuable items. Warrants for his arrest were issued and Mr. Reid was held for days pending extradition for crimes he did not commit. The NYT reports that it seems likely that local police simply used the faulty facial recognition identification to obtain the arrest warrants. It is difficult to know for sure because many law enforcement agencies do not reveal that such technology was used, or that it was the sole or primary basis for the warrant.

What should officials in Louisiana have done before issuing an arrest warrant based on facial recognition? First, actually compare the photos to Mr. Reid. According to the article, Mr. Reid is smaller, lighter and less muscular that the actual thief. Next, investigate to see if Mr. Reid was actually in Louisiana around the time of the thefts. How does one determine that? Examine credit card receipts for gas purchases or any other items in the state, travel records and EZ-Pass records, social media, license plate readers and the like. Conversely, look to see if there is evidence that Mr. Reid was in his home state during the thefts. In fact, had law enforcement checked, they would have discovered that Mr. Reid had never been to Louisiana.

Artificial intelligence is advancing at breakneck speed and law enforcement is eager to use all forms of technology to assist in their investigations. The key, however, is AI should only be used to “assist” not conclude. Traditional investigative techniques must be employed to corroborate and verify the alleged results of such database searches, lest more innocent people sit in jail hoping that their attorneys can free them.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively protect clients’ rights and challenge the use of such AI based searches in pretrial hearings and trial. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

When someone is being investigated or charged with a criminal offense, it is one of the most stressful and unnerving times of the person’s life. It is common to feel overwhelmed and uncertain about who to hire and what to ask in the initial consultation with a criminal defense attorney. Below are some tips on choosing the right attorney and the major questions a prospective client should ask the attorney.

First:

Look for an attorney and firm that specializes in criminal defense. But don’t stop there, find ones that have vast experience in the type of matter you face. If it is a federal investigation or indictment, make sure that the attorney has significant federal experience because federal cases are much different than state, county or municipal prosecutions. Focus on the type of charge as well. If the investigation or charge involves healthcare fraud, ask the attorney about his or her experience in healthcare fraud cases. Experience with both the type of case, and the prosecuting agency, is often critical to success. The more experience the attorney has usually results in better insights into the case, its defense and the type of resolutions that are realistic with the particular prosecuting agency.

Second:

An experienced criminal defense attorney should be able to talk, at least generally, about the strengths and weaknesses of the case. He or she should be able to identify the relevant issues, strategies going forward, and potential defenses. If the case is new, then the attorney can only give general insights because the prosecution has not yet provided any discovery – law enforcement reports, statements by witnesses or the client, recordings, photographs, documents, emails, text messages, etc. – that more fully detail the government’s case. But, the attorney should be able to explain how these types of cases are investigated and prosecuted, and be able to offer insights as to the type and scope of work that lies ahead. Be aware, however, that the attorney has no credible way of predicting the outcome of your matter at this early stage.

Third:

How long will it take to resolve the case? Experienced criminal defense counsel can inform you generally how long a case like yours usually takes, and what you can expect along the way. While each investigation and case are different, the attorney can give you a good idea of how long and what to expect for cases in the federal system or in each state or county that they practice.

Fourth:

How much will it cost to defend your matter? Most criminal cases are handled on a flat fee basis for certain portions of the case. A client needs to know that she can afford the representation and the attorney needs to know that the client has the resources to properly defend the case. In certain instances, particularly when the matter is still in the investigative stage and charges have not yet been brought, the representation will start on an hourly fee basis until the attorney has a better understanding of the scope and complexity of the case.

Fifth:

Who else will be working on your case, and does the firm have the time to handle your matter? These are important issues that the potential client should inquire about. The experience of the other lawyers in the firm, as well as their caseload, is critical to the quality of representation. Firms that handle a large volume of cases, with minimal staff, may not have the time and attention to detail that the client’s matter requires.

A Word of Caution:

These questions provide a good framework for the client to make an educated and informed decision about counsel. There are also the intangible areas of comfort and trust in the person and firm. But do not be lulled by boastful promises or talk of the attorney’s confidence that the case will be dismissed, or that charges will never be brought. Experienced and ethical counsel will reserve their opinions about the outcome until they have the relevant facts and can fully examine the evidence and the case law. Good defense counsel will tell you what you need to know, rather than what you want to hear for comfort.

Contact Stahl Gasiorowski Criminal Defense Lawyers

Stahl Gasiorowski Criminal Defense Lawyers have extensive experience in serious federal and state criminal cases. The founder of the firm, Robert Stahl, is a Certified Criminal Trial Attorney by the Supreme Court of New Jersey, a Fellow of the American College of Trial Lawyers and a former Assistant U.S. Attorney who tried some of the largest fraud and tax cases in the District of New Jersey. He has been aggressively defending serious cases in federal and state courts for more than 25 years.

ProPublica recently reported that Facebook hired 1000 workers around the world to review WhatsApp messages that are flagged as “inappropriate.” WhatsApp markets itself as a private messaging platform that secures those messages with end-to-end encryption that only the participants can view. Billions of people around the world use WhatsApp and other such “secure” messaging services to exchange private, sensitive business or personal messages.

When Facebook purchased WhatsApp in 2014, both companies assured their users that their messages could not be accessed by either company. However, we have now learned that Facebook not only reviews flagged messages, but has on occasion shared those messages with the Department of Justice and other law enforcement agencies in criminal investigations. ProPublica discovered that hourly contract workers in Texas, Ireland and Singapore review millions of users’ content using Facebook software to sift through private messages, images and videos that have been reported by WhatsApp users as improper. These workers then review the flagged content for claims of fraud, child porn, terrorism and the like.

The head of WhatsApp dismissed the report as a non-story, asserting that its end-to-end encryption platform is secure even as the company works with law enforcement to solve crimes. In fact, ProPublica discovered more than a dozen instances where data from WhatsApp was used in criminal prosecutions since 2017. WhatsApp defends its actions arguing that it hired the workers to identify and remove the worst abusers from the platform, not to control or moderate content.

While the benefits of uncovering crimes involving child pornography or terrorist plots may outweigh users’ privacy, the real question is whether contract employees of a for-profit company should be the ones making those decisions. When law enforcement seeks to review a user’s content – emails, web searches, messages – it must obtain a court authorized warrant based on probable cause. The standards used by WhatsApp, and its parent company Facebook, do not require probable cause or an independent determination by a judge. What standards and training, if any, are provided to these contract employees to review private communications is unknown. The old adage -let the buyer (in this case user) beware applies. End-to-end encryption is only as private as the platform it’s on.

Stahl Gasiorowski Criminal Defense is here for all your criminal legal needs. We are experienced in all types of complex criminal matters involving a many types of electronic evidence. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

Much has been written and tweeted about this past week concerning this topic. Politics aside for the moment, what does the government need to demonstrate to a court that a place should be searched, or a person’s phone calls should be intercepted?

To search someone’s home or office, the government must show that there is probable cause to believe that evidence of a crime is presently at the location to be searched. Probable cause exists “where the facts and circumstances within the agents’ knowledge, and of which they had reasonably trustworthy information . . . are sufficient in themselves to warrant a man of reasonable caution in the belief that . . .” a crime has been or is being committed, and that seizable property can be found at the place or on the person to be searched. The probable cause must be timely and the place to be searched must be described with particularity. If information comes from an informant, his or her credibility must be established, either by reciting prior information that has proven to be reliable, or by independent verification of a number of the details provided by the informant.

In the case of a Title III intercept, commonly referred to as a wiretap, there are extra statutory factors that must be met before electronic surveillance will be authorized. Only certain enumerated crimes are subject to a wiretap as an investigatory tool. Most importantly, the affidavit must establish investigative need and that traditional methods of investigation have either failed, are likely not to succeed, or are too dangerous.

What if the affidavit provided to the court for the warrant contains false information? Does that mean the warrant should never have been issued, or that the evidence gathered should be suppressed? Generally, a warrant issued by a judge is presumed valid. In challenging a warrant, the person must demonstrate that (1) the affidavit contained a materially false statement; (2) the false statement was made knowingly and intentionally, or with reckless disregard for the truth; and (3) the allegedly false statement is necessary to the finding of probable cause. If these three points are demonstrated, then a Franks hearing must be held.

The key point is that the warrant will survive, and the evidence gathered admitted in court, if there is sufficient probable cause remaining once the alleged false statement(s) are removed from the affidavit. Generally, even if a warrant was issued with a materially false statement, that was known to be false when made, the evidence will not be suppressed unless the judge would not have issued the warrant if those statements were not included in the application.

Pertinent to recent press reports and the 24-hour cable news cycle, when a Title III warrant has been issued, it is only valid for a specified period of time. After which, the agent must apply for an extension(s). In that application, the agent must demonstrate to the court that material evidence of the crimes being investigated have been intercepted and that the continued authorized interception will likely yield additional evidence. Thus, any renewals will necessarily mean that evidence of the specified crimes have been electronically gathered and that continued electronic interceptions will likely yield additional material intercepts.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes.Founder Robert G. Stahlis recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001for our NJ office and 212.755.3300for our NYC office, or email us at rgs@sgdefenselaw.com.

You’ve just enjoyed a great vacation in Europe and are now on your way home. After suffering the hassles of long lines and security at the airport and a cramped flight in coach, you arrive back at Newark Airport. You patiently wait in line for the Customs and Border Entry check and sail through after casually chatting about your trip with the officer who stamps your United States passport and welcomes you back home. While waiting at the luggage carousel and hoping that your luggage hasn’t been lost, you’re approached by a Customs and Border Protection officer (“CBP”) and asked to come with him to another room. In that room, CBP officers ask you about your travels – why you were there, how long you were gone, who did you meet and what did you do. You explain that it was a simple, straightforward holiday trip that you had saved up for over the past year. The officers then ask for your cellphone, iPad and computer. You ask why and they say that it is routine. They examine the devices and find that they are all password protected. They ask you to unlock your devices so that they can examine the contents. You are shocked, you are a U.S. citizen with constitutional rights to privacy. Doesn’t the Fourth Amendment protect you from unreasonable searches and seizures, and require the officers to have a warrant supported by probable cause? Usually it does, but not at the border. When you re-enter the United States, you enjoy significantly fewer protections against searches and seizures.
Recently we have all read about non-citizens being stopped, detained and searched at the border – be it an airport or crossing into the United States from Canada or Mexico – what is less known is that the same intrusive questioning and searches can happen to citizens. According to the most recent statistics, these types of searches have greatly increased, from 8,500 in 2015 to over 24,000 in 2016.

So, what if you refuse to provide the passwords? Well, you can be detained and your devices can be seized. Faced with that, most citizens simply provide the passwords and begrudgingly let the officers scroll through their devices. But, in the age where even our smart phones contain so much of our lives – personal photos, texts and emails with our loved ones, private and confidential business dealings and the like – it is an enormous invasion of privacy that should require a judge’s determination that probable cause exists to compel the disclosure of the password and the search. Our constitutional rights should not stop at the airport or the border.

Several notable organizations and members of Congress agree and are sponsoring legislation that would require a judicial determination of probable cause before CBP would be allowed to search electronic devices. As expected, however, these proposals have been met with opposition citing the country’s need to protect itself from terrorists and other threats. These competing interests must be balanced and reasonable solutions advanced.

If you or your family members have been detained and your electronic devices seized, the attorneys at Stahl Gasiorowski Criminal Defense can help. Stahl Gasiorowski Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success.

To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rgs@sgdefenselaw.com.

Between the President’s accusation that the prior President tapped his phones, and WikiLeaks recent exposure of alleged CIA hacking tools and techniques, much has been reported in recent days about the government’s ability to intercept and listen to our conversations over our cellphones; computers; smart home devices such as televisions and baby monitors; products such as Alexa and Amazon Echo; encrypted messaging apps such as Signal, WhatsApp and Telegram; and home security cameras and systems. All of these devices provide potential ways for the government and hackers to enter our seemingly private worlds and eavesdrop. The difference between the government and a hacker, however, is that the government must obtain a court authorized warrant to do so.

Federal and state law enforcement investigating many types of criminal activities can apply for a court authorized warrant to intercept calls, text messages, emails and other forms of communications if they demonstrate that there is probable cause to believe that the person is committing the specified unlawful activity and using the specified type of communication device in furtherance of the criminal activity. In addition, law enforcement must demonstrate to the judge that normal investigative techniques have either failed, or would likely fail, to uncover the full scope and extent of the activity or coconspirators. These normal investigative techniques include, interviews, subpoenas, search warrants, undercover investigations and the use of informants.

In most cases of foreign espionage, terrorism and foreign agents, law enforcement must obtain a court order through a FISA application to a FISC court (Foreign Intelligence Surveillance Act authorized Foreign Intelligence Surveillance Court) to intercept communications. The application again requires probable cause that the target of the intercept or surveillance is a foreign power or agent committing certain offenses.

Hackers, however, require nothing more than the skill and access to these common household devices. Routers, security cameras, baby monitors and the like are all known as IoTs – Internet of Things. These products are vulnerable to compromise by malware because of poor factory administrator security settings that are easily hacked. Thus, your family’s security camera can be hacked and used to spy on private activities within your home. Similarly, the camera on your laptop for Skype calls and video conferencing can be hacked to spy on you. While this is certainly a frightening invasion of privacy, and highly illegal, there are many readily available articles by experts that offer detailed instructions on how to change the factory settings on these devices to make it much harder for hackers to get through.

Authorized law enforcement interceptions compel the provider of the service to cooperate and assist law enforcement in effectuating the intercepts and prohibit the provider from revealing the interceptions to its customer. While there are strict compliance standards set by law and reporting requirements at specified intervals to the court, these interceptions not only capture alleged communications about criminal activities, but many times capture innocent conversations, texts, emails and the like between unsuspecting third parties and the targets themselves. It is a very intrusive type of investigative technique that must be used sparingly and adhere to strict guidelines.

The evidence gathered from such interceptions may provide powerful evidence against the accused. However, in many cases those communications are claimed by law enforcement to involve “coded language” that requires “interpretation” by an expert, usually another agent or detective claiming to have specialized training and experience, to inform the jury what the targets “really meant.” Thorough examination of those conversations, experience and vigilance is required by the accused’s attorney to ensure that the supposed expert witness is not misinterpreting the meaning of the conversation and providing unreliable and misleading testimony to the jury. Experienced criminal defense counsel can also attack the basis for the warrant to intercept the communications and the procedures followed during and after the period of interception in an effort to suppress any evidence gathered through the interceptions.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.