The video is chilling, but it's also a sign of the times.

"Your First Amendment rights can be terminated," yells the Chicago police officer, caught on video right before arresting two journalists outside a Chicago hospital.  One, an NBC News photographer, was led away in handcuffs essentially for taking pictures in a public place.  He was released only minutes later, but the damage was done. Chicago cops suffered an embarrassing "caught on tape" moment, and civil rights experts who say cops are unfairly cracking down on citizens with cameras had their iconic moment.

Tales of reporters, protestors and citizen journalists being threatened or arrested for filming law enforcement officials during disputes are on the rise, critics say, with Occupy Wall Street protests a lightning rod for these incidents. The National Press Photographers Association claims it has documented 70 such arrests since September and, in May, called on U.S. Attorney General Eric Holder to focus attention on the issue.

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"The First Amendment has come under assault on the streets of America," the photography association said in a letter to Holder that was also signed by several other interest groups. "Police have arrested dozens of journalists and activists simply for attempting to document political protests in public spaces.”

Such allegations are ironic, given the sharp rise in police surveillance technology, which gives cops vast capabilities to film citizens, said Catherine Crump, an American Civil Liberties Union attorney.

"It is true that Americans are photographed more and more today as they walk around in public spaces," Crump said. "And it is ironic that law enforcement agencies are objecting when the same activity is being used to film their activities. But it's not surprising because there's often a double-standard in this space."

There's always been a tense relationship between cops and cameras, but that relationship is being pushed to the brink now that half of U.S. adults carry smartphones, nearly all of them capable of filming and sharing visuals instantly with the whole world via the Internet.  Cops at Occupy Wall Street protests -- such as those at Zucotti Park in New York City -- routinely deal with dozens of amateur photographers shoving cameras in their faces, many of them aggressive.  It's not hard to see how the cameras can escalate an already tense situation.

But First Amendment law is clear: Citizens in public spaces have a right to film things they see in plain sight. Courts have repeatedly upheld that right in high-profile cases.

Court rulings sometimes have no bearing during intense situations, however.

"It wouldn't really matter with some police officers if you had an original copy of Bill of Rights with you," said Mickey Osterreicher, a lawyer for the press photographers association. He said he deals with new cases nearly every day involving photographers who he believes have been wrongly arrested.

"The sign on my desk that reads, 'Bang head here,' is getting worn out," he said.

In April, Connecticut's State Senate passed a law that clearly defined citizens' right to film, but the state's lower house failed to act on the measure. The proposal was introduced by Sen. Majority Leader Martin M. Looney , D-New Haven, after a series of incidents involving cops in that state's capital city. In one, a police officer is caught on camera saying “You don’t take pictures of us,” before making an arrest. In another incident, 26-year-old Luis Luna was arrested for filming an arrest, and video files on his iPhone were deleted.

"In the past several years, police officers have wrongly arrested members of public for using video cameras or cell phone cameras," said Adam Joseph, a spokesman for Looney.  "In the opinion of a number of senators, there were far too many instances, and that demonstrated the right to videotape needed to be codified and is unfortunately necessary." 

The proliferation of devices that can film and share has made this conflict almost inevitable, but there are other causes, too.

“So many mainstream journalists have been laid off and are freelancing,” said Osterreicher, the press association lawyer. ”Then you have people who consider themselves citizen journalists. They have ‘pro-sumer’ devices capable of taking video and still images with the same quality as pro equipment, and can share them with the world, without mainstream media. That’s something we've never seen, until recently.”

'Threatening act'
As a result, civil liberties lawyers have beaten a path to courthouses around the country, said Crump.

"We do hear about these more frequently now because everyone walks around with cell phone cameras,” she said. “Law enforcement officers sometimes react badly to this, and view it as a threatening act.”

The most celebrated case involves Simon Glik, who in 2007 filmed police arresting a homeless man near Boston Commons. Glick was arrested and charged with violating the state's wiretapping law.  His case was dismissed, but he then brought a federal civil rights lawsuit against the city. In August 2011, the First U.S. Circuit Court of Appeals for the First Circuit ruled unanimously in his favor.

"That decision is 24 pages of pure gold," Osterreicher said.  "The judges talked about the right to record in public. They said the First Amendment right is self-evident. They took judicial notice of the fact that news is as likely to come from someone with a cellphone as anyone. And they talked about the fact that police officers … should expect to be recorded when out in public."

In March of this year, Boston paid Glik $170,000 to settle the suit.

"It's really not up to police officers to decide what is and isn't newsworthy," Osterreicher said. "It's a shame Boston had to learn an expensive lesson."

Other rulings have offered a similarly strong endorsement of the right to film, Crump said.

"The First Amendment is strongly protective of right to video and record in public spaces. There’s obviously a good reason for that. Sunlight is the best disinfectant," she said.  She said court rulings have been so consistent, she’s not worried about any weakening of the First Amendment –  but she is worried about the more practical side of the problem.  Glik's settlement -- most of which paid for his legal fees -- took five years to arrive.  In most real-life situations, police officers have wide discretion, and few observers have the time, money or wherewithal to see a First Amendment case through to completion.

Osterreicher, both a former journalist and a reserve police officer, prefers far more practical methods.  He travels the country training police officers in First Amendment law. Invited by Chicago police brass, he offered such training in advance of recent NATO meetings in Chicago, which attracted sizable protests.  He thinks it worked: To his knowledge, only one photographer was arrested during those protests. 

He also offers suggestions tips to would-be cop videographers.

"The First Amendment is not absolute," he said. "It is subject to reasonable time, place and manner restrictions. But the key word is ‘reasonable.’ Is it reasonable when covering a protest to ask someone to stand back or get on a sidewalk? Absolutely. Is it reasonable to expect the press to go away when there is an order to disperse? No."

One rule that is fairly absolute, he said: While there are situations when police can seize cameras and cellphones, they have no right to destroy data, such as pictures or videos, without consent from the owner.  In fact, doing so could be considered destruction of evidence.

The ACLU hosts an information page designed to help amateur photographers understand their rights on its website.  But Crump offered a thumbnail sketch of the law that draws an important distinction between public and private property.

"Generally, when you are in a public space where you have the right to be, you have right to photograph anything in plain view, and that includes police who are executing their duties,” she said. “But if you are on private property, the property owner gets to set the rules.”

But Osterreicher said any advice photographers receive should come with a warning:  "It's complicated."

"I can't give you an answer that covers all situations. You’re going to have to make an assessment,” he said “Is this officer nonchalantly asking you to move? Or is he getting real cranky? A lot of situations can be defused with conversation. … You want it to end well.”

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Why would the well-heeled suburb of Gilbert, Ariz., spend a quarter of a million dollars on a futuristic spy gadget that sounds more at home in a prime-time drama than a local police department?

The ACLU caused a stir Monday with its extensive report of cellphone surveillance by local police departments, which routinely request location information and other data from cellphone providers, often under vague legal circumstances.

But one bit of information provided by Gilbert officials suggests that cops sometimes try to cut out the middle man. Buried in the 380 public records requests sent by the ACLU is a response from Gilbert which indicates that the town purchased a device that allows it to track cellphones on its own for $244,195.

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"The Gilbert Police Department obtained a $150,000 grant from the State Homeland Security Program," the agency wrote to the ACLU in response to a public records request. "These funds, along with $94,195 of R.I.C.O monies, were used to purchase cell phone tracking equipment in June 2008 (total acquisition cost of $244, 195)."

 

Gilbert didn't offer additional details about the device to the ACLU, and Chief of Police Tim Dorn didn't immediately respond to requests for comment.

But several surveillance experts said the device sounds like a gadget that's sometimes called a stingray.  

The stingray, made by Harris Wireless Products Group of Melbourne, Fla., lets users set up what amounts to a fake cellphone tower and trick all phones nearby into connecting with it. That data can then be used to track the physical location of anyone nearby carrying a powered-on cellphone -- even if the citizen isn’t on a phone call. A stingray can also register other data, such as the phone numbers dialed by all phones while connected to it. The device reportedly cannot record or intercept the content of a phone call, so it does not act like a wiretap.

Still, the stingray is at the heart of a hotly contested criminal case involving an identity thief named Daniel David Rigmaiden, who allegedly stole $4 million through a fake tax return scheme. Federal authorities used a stingray to find Rigmaiden in California in May 2008, then sent him to Arizona for trial.

Perhaps Gilbert was impressed with the result -- it says it acquired its device one month later.

In September 2011, a federal court in Arizona heard Rigmaiden's request to receive all details about the government's secretive use of the surveillance technology. Federal prosecutors are resisting disclosure because they say it will jeopardize use of the critical law enforcement technology in other cases.

Rigmaiden's case, as yet undecided, is largely seen as a test of the constitutionality of stingray and related police surveillance technologies. Would use of a stingray constitute a search, and thus require application for a time-consuming search warrant? Or do cellphone users give up their expectation of privacy by turning on a phone and carrying it in their pocket? The issues were discussed extensively in this recent Wall Street Journal story.

Use of a stingray-like device raises even thornier issues than cellphone records requests, said Catherine Crump, the lawyer who headed the ACLU project.

"I think when law enforcement starts purchasing technology that allows them to track cellphones in that manner, it raises a whole host of questions about how that technology is being used that are even more serious when they track people through carriers," Crump said. "At least when a carrier is involved, there's a third party that may raise concerns if the request is of questionable legality. But when a law enforcement agency can do on its own surveillance, that raises even more serious questions about whether there is appropriate oversight."

No other local police department that responded to the ACLU's public records requests mentioned purchase of a stingray-like device -- one other community mentioned borrowing such a gadget -- but Crump said that's because she didn't specifically ask about them.

"If I had to write the requests it over again, I would,” she said. “We didn’t realize how big an issue these devices were at the time. We know that there are others purchased by other agencies around the country, mainly from press reports."

The Miami police department, for example, asked Harris for a price quote in 2008. The firm's response is still on the city of Miami's website. A more extensive price list from Harris can be found at this website. 

A spokesman for Harris Wireless said the company didn't comment on clients' purchases and referred questions to Gilbert's Police Department.

The use of fake cellphone towers by law enforcement has caught on outside the U.S., too. Britain's Metropolitan Police, which serves the greater London area and is that nation's largest police force, began deploying similar technology provided by England-based Datong PLC last year, according to The Guardian. The disclosure began a round of debate about civil liberties in Britain.

Matt Blaze, a computer science professor at the University of Pennsylvania and an expert on stingray-like devices, said they are a mixed bag.

"Certainly these devices are powerful surveillance tools that, if misused, have the potential to be quite invasive against the privacy of innocent people," he said.  "But, then again, so do many other law enforcement investigative methods -- physical searches, hidden microphones, informants and so on. The question is how they are used, how often they are used and the oversight mechanisms in place to prevent and detect misuse."

Devices like stingrays are technologically limited in scope, however -- they can only monitor a limited physical area in real time -- so Blaze is less concerned about them than he is the revolving door of data between private companies and law enforcement.

"I'm less worried about law enforcement agencies with stingrays and other targeted surveillance gadgets than I am about location and other kinds of tracking through the carriers, especially when done without strong legal oversight or without probable cause," he said. "While I do worry about abuse of these kinds of electronic surveillance devices, the fact that they are inherently rather targeted in what they can collect acts as something of a built-in safeguard. I'm more concerned, in the long run, about large-scale surveillance capabilities being included in our communications infrastructure."

Still, privacy researcher Chris Soghoian – who has written extensively on law enforcement use of cellphone technology for surveillance – said police use of the stingray device is among the most troubling privacy developments in years. Some phone companies allow police officers to use a website to download customers’ GPS location data easily, “from the comfort of their own desks,” he said, and charge as little as $5 for the information. With phone company record access that easy and inexpensive, there’s no need for stingray, he argued.

“The real issue is that this device is about allowing police to perform surveillance when the phone company would say no,” said Soghoian, who is Graduate Fellow at the Center for Applied Cybersecurity Research at Indiana University. “This is not about saving time and money … it’s about the fact that there’s no one to insist that the law be followed when a stingray is used.”

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The "Universal Forensic Extraction Device" sounds like the perfect cell phone snooping gadget.

Its maker, Israel-based Cellbrite, says it can copy all the content in a cell phone --  including contacts, text messages, call history, and pictures --  within a few minutes.  Even deleted texts and other data can be restored by UFED 2.0, the latest version of the product, it says.

And it really is a universal tool. The firm says UFED works with 3,000 cell phone models, representing 95 percent of the handset market.  Coming soon, the firm says on its website: "Additional major breakthroughs, including comprehensive iPhone physical solution; Android physical support – allowing bypassing of user lock code, (Windows Phone) support, and much more."  For good measure, UFEC can extract information from GPS units in most cars.

The gadget isn't a stalker's dream; it's an evidence-gathering tool for law enforcement. Cellbrite claims it’s already in use in 60 countries.

That apparently includes the U.S. The American Civil Liberties Union in Michigan says it has learned that state police there have purchased some of the gadgets.  What is it doing with them? So far, Michigan authorities aren't telling. A public records request for information by the ACLU was met with a prohibitive $500,000 bill to cover the supposed cost of making the documents available.

"They did produce documents which confirmed that they have them," said Mark Fancher, a staff attorney at the ACLU office. "We have no idea what they are doing with them."

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 Technology and the Fourth Amendment have had a rocky relationship. When The Founding Fathers created protections against unlimited search and seizure, they never imagined the kind of tools that would be available to 21st century police officers.

Cell phone data is an indispensible tool in both investigations and prosecutions. A drug dealer's contact list is an obvious treasure trove. Location information stored in the phone can prove (or disprove) an alibi.  Texts are at least as valuable as emails. Increasingly, smartphone s are used as mini-laptops, placing even more ready-made evidence in one small package -- as long as law enforcement can get to it before it's destroyed. 

Because handsets are nearly always with suspects, it's easy for a would-be criminal to delete information during a traffic stop.  Remote wiping programs exist that mean critical evidence could be destroyed even after a police officer takes possession of a suspect's phone. That means law enforcement official s have great interest in slurping up all the secrets that a handset might contain as quickly as possible.  Enter Cellbrite.

But how fast is too fast?  Fancher and the ACLU argue that most cell phone searches  are an invasion of privacy that requires law enforcement officials to get a court order before rummaging through a suspect's handset data.  While UFED could be used after an order is obtained, its obvious focus is on time-critical searches -- those that would occur, for example, right after a "routine traffic stop."

"The Fourth Amendment protects citizens and allows them to have some confidence that law enforcement can't go in on a whim and take a look at most private details of our lives," said Fancher.  "Our concern is that the device can empty a cell phone within 90 seconds, offering law enforcement a powerful ability to intrude on and infringe on people’s rights."

Do cops need a court order to search the contents of a cell phone?  The law is still evolving, but at least one recent major decision chose police over privacy. The California Supreme Court recently issued a ruling that allowed police to use text message evidence they'd obtained without a court order. The ruling seemed to open the door to widespread use of warrantless cell phone searches in California.

But Fancher cautioned against generalizing too much from a single search-and-seizure case.

"They often involve a lot of nuance," he said.  "You really have to go case-by-case when searches are involved."

There are clear-cut cases where court orders wouldn't be required to search cell phones -- if police are in hot pursuit of a crime or have probable cause to believe that evidence is in immediate danger of being destroyed.  Such situations are exceptions, however, Fancher said. He's concerned that the easy-to-use gadgets in the hands of field officers would make cell phone searches the rule, rather the exception.

Cellbrite didn't immediately respond to a request for comment. On its website, the firm says it was founded in 1999 and was purchased by a Japanese company in 2007. Its data-slurping technology grew out of products it sells that are used to transfer contact information from old phones to a new phones at cell phone retailers.

The Michigan State Police did not respond to a request for comment.

Technology continues to throw major legal headaches at law enforcement officials and Fourth Amendment rights advocates. 

The U.S. Supreme Court is currently mulling a related issue involving the use of persistent GPS monitoring of suspects without a warrant.  In that case, the FBI placed a GPS monitoring device on a suspect's car without a warrant and then tracked his driving for driving weeks. The Department of Justice says the technique is akin to surveillance on public roads, but a federal appeals court ruled that such aggregation of movements over time constituted a Fourth Amendment violation. Because the ruling conflicts with other appeals court rulings in similar cases, the Department of Justice recently asked the Supreme Court to take the case and settle the matter.

Fancher said his quest for information about the cell phone data copying device from the Michigan State Police began in 2008. After receiving a $500,000 bill for records requests, along with a demand for a $250,000 down payment, the ACLU tried to narrow its requests to reach a more reasonable cost. It filed 70 FOIA requests last November, for example. But the method also proved fruitless.

"We have tried everything we know of to work with FOIA personnel to get the documents we seek and had no success, so we've taken the opportunity to go to the top and try to shake things loose," Fancher said.  On April 13, the ACLU sent a letter to State Police Director Kriste Etue, and made that letter public to the media.

"The ACLU should not have to go on a fishing expedition in order to discover whether the state police are violating the privacy of individuals through the use of new, sophisticated technology," the letter read.

The ACLUs real concern with the gadgets is that they will prove too tempting for state troopers, and abuses will occur.

"We're not accusing the state police of using them improperly.  It's not illegal or improper for them to have them," he said. "Our concern is, what are they doing to insure they are complying with constitutional requirements? ... We'd be interested, for example, in what kinds of supervision there is over their use."

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