The FBI investigated and arrested Michael Avery for posting on Facebook about a Black Lives Matter protest. We talk with a tech industry whistleblower about “snitch apps” and how law enforcement uses technology to “protect” you.
This is a rush transcript and may contain errors. It will be updated.
Taya Graham: Hello. My name is Taya Graham and welcome to the Police Accountability Report. As I never get tired of saying, this show has a single purpose; holding the politically powerful institution of policing accountable. To do so, we don’t just focus on the behavior of individual cops, but go beyond the headlines to explore how the system itself, both bolsters and incentivizes the growth of policing in American life.
And today we’re going to explore a growing and troubling new intersection between capitalism and law enforcement surveillance. How police are using technology to monitor us and in certain instances how we are voluntarily aiding the expansion of the power to observe us.
But before I get started, I want you watching to know that if you have evidence of police misconduct, please email it to us privately at firstname.lastname@example.org. And please like, and share and comment on our videos. You know, I read your comments and appreciate them. And of course, you can always message me directly at [Tayas Baltimore 00:01:01] on Facebook or Twitter.
Okay. We’ve got that out of the way. Now, as we know, there has been growing concern about the use of surveillance technology by police. With the prevalence of social media apps like Facebook and Instagram, law enforcement has a variety of new ways to track what you do and how you think. But those concerns have taken on a new urgency during the uprisings across the country after the death of George Floyd in police custody.
As communities have taken to the streets to protest police brutality, structural racism, and have called for political leaders to defund policing, law enforcement has used the opportunity to show us just how easily it can track our activities and how they are willing to act upon it.
Take the case of Michael Avery. Avery, a Black Lives Matter activist can be seen here in this video being arrested by, you’ll notice, men in non distinct uniforms for an unspecified crime. In fact, Avery even asked them, why are they arresting him? But the officers are tight lipped. Let’s watch.
Speaker 2: We’re going to do this as calmly as possible. All right.
Speaker 3: Could you please let me… Can I see some paperwork?
Speaker 2: You don’t have to see paperwork. It’s been signed.
Speaker 4: My husband’s in the house.
Speaker 2: It’s been signed. We’re going to put handcuffs on your wrists, take you to the car and take you to the police station.
Speaker 5: Sir, we’ll try and do this cool. Okay, we’ll walk over to the car and put the handcuffs [crosstalk 00:02:24].
Speaker 3: Can I hand my mom my phone real quick?
Speaker 5: Give it to her.
Taya Graham: We’ve learned that federal law enforcement was monitoring and making arrests based upon a single Facebook post. To get more insight on how this happened and the implications I’m joined by my reporting partner, Stephen Janis. Stephen, thanks for joining us.
Stephen Janis: Thanks for having me Taya, I appreciate it.
Taya Graham: So Stephen, up on the screen now is the arrest of a St. Louis activist, Michael Avery, which he streamed live on his Facebook page. First of all, why was he arrested and what were the charges?
Stephen Janis: Well, it took me a while to track down, but I finally tracked down the FBI agent who was in charge of this investigation and got ahold of these documents, which is the affidavit filed with the federal court justifying his arrest. And I’ve got to say that there’s not much in it.
We’ll show it on the screen right now. Basically it was based off a series of Facebook posts about protests that I think were widely misinterpreted, where Mr. Avery had posted about going down to protest the police department in Ferguson, Missouri, and that he said he wanted lots of shooters to come, which I think I believe means people with cameras and cell phones. And the FBI interpreted this as a person who is inciting a riot. So the charges are flimsy at best.
Taya Graham: Now prosecutors dropped the charges, but not before they tried to keep him locked up in prison. What did they say and what was the reality? You reached out to the FBI, what did they tell you?
Stephen Janis: Well, when I asked the FBI the question, when I got these documents I said, “why did you drop the charges?” They did not answer. One thing is interesting is that they tried to keep him incarcerated saying he was a danger to the community, even though he had no criminal history that indicated he would be violent. And they also said that they didn’t think he lived in St. Louis, which he in fact did live in St. Louis. So it was a bizarre set of circumstances and they won’t answer my questions as to why they thought he needed to be detained.
Taya Graham: Steven, you examined the evidence filed with court, justifying his arrest, but the agency made a glaring error. What was it?
Stephen Janis: Yeah, the big error again was that they said that he lived in Minnesota. They thought he was from Minnesota and had traveled to St. Louis. When in fact he actually lived in St. Louis and was from St. Louis. But among that was just, I think the errors of misinterpretation, like saying it’s going to be a red event, or a high level red event, meaning they thought that it was going to precipitate violence.
But actually what that means is just that they feel the police are going to throw tear gas, don’t bring your kids. And they also gave him a hard time for recounting what was happening in Minnesota with looting, what looters had done, but he was merely conveying information. He wasn’t asking people to loot or encouraging people, just telling people what was happening. That’s it.
Taya Graham: When law enforcement apologists or politicians say concerns over the use of social media or other technology to monitor behavior is simply a more efficient means to nab the so called bad guys. The case of Michael Avery raises several troubling questions.
Bear in mind that concerns have already been raised about facial recognition technology. A report from the Georgetown law center on privacy and technology estimates, roughly 117 million Americans are already in some form of database primed for monitoring. And let’s not forget that those same systems are more likely to misidentify African-Americans and indigenous Americans and people of color. Or that the use of facial recognition software and social media will allow law enforcement to actually track your movements, friends, and associations.
Even if we set all that aside for a moment and simply focus on Mr. Avery’s case, we can’t help but recognize how this blend of technology and the culture of law enforcement in this country creates a troubling array of concerns.
That’s because for the entirety of the show, we have focused on one single, overarching trend that has defined American policing over the past two decades. It’s a unifying theme that ties all the aforementioned concerns into an unwieldy bundle of potential pitfalls. Policing, at least in this country is a growth industry.
Let’s remember the graph we used in the last show which demonstrated this fact quite effectively. Since the 1990s, despite the fact that violent crime has dropped significantly, police spending has grown simultaneously. In fact, the mission creep of American law enforcement is exactly what the protesters are trying to address when they call for defunding police departments across the country.
And now with the evolution of surveillance technology that has proliferated into every nook and cranny of American life, and as we’ve said, an ever expansive police bureaucracy, both are conjuring new ways to observe us that demand our attention.
Consider what is happening with the popular Ring security systems owned by America’s ubiquitous corporate behemoth Amazon. As you may already know, Ring allows homeowners to set up private surveillance systems throughout their homes that can be monitored remotely. The systems have proven so popular that Amazon has found a new partner to help sell them, local police departments.
That’s right, the company has teamed up with roughly 400 local police agencies to offer $500 rebates to install a Ring system in your home. It’s a match made in heaven. A law enforcement industrial complex, now under intense scrutiny for brutal tactics, partnered with a company that’s been accused of demeaning labor practices and of firing an employee who demanded better protections during the COVID-19 pandemic. I wonder what could possibly go wrong?
Well, to give us a sense of just how fraught that question is, I’m joined by a guest who has intimate knowledge of how fast the surveillance state is growing and what, if anything we can do about it. Because he has worked for the companies that are actively involved in some of the technology we’re discussing, he asked that we shield his identity and we have agreed. [Franson Code 00:07:54] , thank you for joining us today.
Franson: Thank you, Taya. I appreciate it and it needs to be said.
Taya Graham: So the case of Michael Avery is alarming because it seems to show that not only law enforcement is monitoring social media, but are willing to press charges based upon a single post. So my question is, are police really just relying on Facebook posts as investigative tools and does that apply to other social media platforms?
Franson: To think that the police are not using the social media platforms for their investigations would be naive. There’s documents coming out where it’s not just the local police and authorities, this actually extends further to federal three letter acronyms sending out notifications of these types of things. And they’ll put their, what I’d like to call the, “We didn’t do it” terminology at the bottom, saying not to take action based on this post. Well, why are you sending out the information in the first place, if you’re not expecting action to be taken?
Taya Graham: So given how much social media there is in terms of quantity, what type of technology are they using to do this? I know we covered a program that our own police department wanted to use to track people, but how does this work? And what are the pitfalls?
Franson: When you have very few phone manufacturers, you have this ability to truly track from point of concept all the way to point of sale to literally the death of the device. So it’s kind of one of those things, you think about a phone that’s been stolen, they can disable it. Well, do they completely disable it? Do they leave the tracking feature stuff on in there?
I would assume that, being that the best dog tag that I’ve ever seen in my life is a cell phone. And for you not to think that your Bluetooth is not giving a signal or your cell phone by itself is not giving the signal, I think that the tools that are available are astonishing.
There’s sites out there like Hackaday, and all you have to do is just go scrolling through it, hackaday.io. And there’s some amazing things like, Oh, I don’t know, temperatures for your gardens and things like that. But there’s also little toys out there on how to collect data. And that’s what this is, is a collection of data. And when you take everything, the human and everything else out of it, all you’re doing is tracking a device. Well, that device is attached to the human and if they want to turn on the audio, I think it’s very possible.
Taya Graham: So there’s been a lot of discussion about a company that created facial recognition software that uses social media to track associations and movement. I believe Clearview AI was the company that originally gave information to law enforcement, but has since pulled back a bit. What are the dangers of this technology and how concerned are you about it?
Franson: So am I concerned about it? No, because I’ve seen it coming. So it’s kind of one of those things it’s like, I even taught you how to build your first one. I have a video that shows you how to make an Ubuntu server, load programs onto it, use a program called OpenCV, and it will pick out the faces out of a YouTube video.
So what can we do next with that? You take this Clearview AI, and I was using YouTube because of the same reason Clearview did. It’s publicly available information, so why not use that information to train your little AI that you build and all your little algorithms. The problem that I have is there’s no, “I want to opt out.” It’s opt in literally by you just put your crap out on Facebook.
Taya Graham: So, as you well know, the fourth amendment is supposed to protect us from unreasonable searches. Shouldn’t the constitution apply to the technology we’re discussing?
Franson: One of the interesting things is, is that we’ve all seen these attempts to mute voices on these different platforms. And everybody gets up in arms and tries to throw a, “Well, this is America. This is this. This is that.” Does it say the United States government on there? No. Those amendments are there to protect you from the government, not from a private company. These things about all these little licenses and legalnese that you’re agreeing to, you might just actually be signing away your life. Matter of fact, I’m pretty sure you are.
Taya Graham: As I watched the rest of Michael Avery, I couldn’t help but think about Franz Kafka. Kafka is the famous early 20th century author best known for her short story, The Metamorphosis, which recounts the travails of a salesman who wakes up as a cockroach.
One of his most famous books, The Trial, opens when the main character, Joseph K, is arrested. But there’s a catch. When he asked why he’s being detained, the authorities won’t tell him. In fact, the story unfolds primarily around Joseph K’s search to simply find out what the charges were against him which, spoiler alert, proves futile.
Kafka is often associated with the term Kafkaesque, meaning to some, a sense that we live in a world defined by shadowy institutions that look over us and infiltrate our lives in both unseen and menacing ways. But I think of Kafka as more of a psychologist. Someone who understands intrinsically how we distance ourselves from the truths about our human nature, to our own detriment.
And in this sense, long before the technology existed, Kafka understood that the penchant for surveillance and entanglement exists within us already. And he knew this predilection could have treacherous consequences if we did not acknowledge it. Which is why it’s telling almost 100 years later, that we are failing to grapple with the looming threat of ubiquitous surveillance that is putting us in the same dilemma faced by Kafka’s protagonists.
Consider the case of Rakem Balogun. A long time police reform activist, he was awakened in the middle of the night in December of 2017 in his Dallas, Texas home by a [inaudible 00:14:15] of FBI agents. Unsure of why he was being hauled off to jail, Balogun was stunned to learn that the federal government had been monitoring his Facebook posts and was accusing him of domestic terrorism.
The charges stem from a rally he attended after the deaths of several African-American men at the hands of police. The sole basis of the case were some Facebook posts that express general support for the man who had killed five Houston police officers. But the case fell apart because authorities could not point to anything specific in threats Balogun had made. He had simply expressed his opinion. He had not acted, he had written. He had not expressed intention to harm anyone in particular. He simply voiced his dissent.
The point is, the charges against him were based solely on a Facebook post expressing an opinion and participation in a protest, fundamental first amendment activities that are supposed to be sacrosanct in this country. But apparently not for him. And along with spending five months in jail for a crime he didn’t commit, the consequences for Balogun were devastating. He lost his house and his car, his 15 year old son who was living with him prior to his arrest, had to leave school and move. And he missed the birth of his daughter. All of this because of speech posted on Facebook.
I guess the question is, would these charges even be possible, for example, if Facebook didn’t exist? Which is part of the fundamental question of the show. We already know that social media platforms like Facebook and Instagram monitor your preferences and interactions to sell the data to advertisers. We know that so-called surveillance capitalism has spawned some of the wealthiest corporations in history, and we know that many of the techniques and algorithms used to hold onto our attention are bolstered by media that engenders fear and distrust.
And now those same platforms are offering our opinions and discussion to an ever-growing law enforcement industry to hunt for potential charges of domestic terrorism. Are we supposed to accept that they both profit and criminalize our opinions and passions? Is this the final frontier for fortifying our [carceral 00:16:26] state, our thoughts? Have we finally reached the dystopian nightmares of a society where opinions are monitored and then criminalized for profit.
The point is that the evolution of technology that is supposed to connect us is also raising the specter of a Kafkaesque reality that seems more relevant than ever. I mean, think about the question Mr. Avery asked over and over again in the video. “What are the charges?” Think about the fact that appears from our own investigation, FBI agents based their entire case on a Facebook post that was wholly misunderstood.
Think about all the things you’ve posted, the opinions you’ve shared, what would happen if the FBI could parse them and decide to take away your freedom based solely on their interpretation of what you said. Think about what it means if they were free to track your associations, vacations, groups you’ve joined and pronouncements you’ve made. Sounds like The Trial on a daily basis.
I want to thank my guest, Franson Code, for his insights and for stepping forward to tell us about this industry from an insider perspective.
Franson: Taya, I appreciate you and Steven out there doing what you all do. Keep hitting the bricks and like, you all are, thank you.
Taya Graham: And I have to thank my Intrepid reporting partner, Steven Janis, for his writing, editing and reporting on this piece.
Stephen Janis: Taya, thanks for having me. I appreciate it.
Taya Graham: And I’d like to thank visual producer, Andrew Corkery for his research on this piece as well. And I would be remiss if I did not thank friend of the show, [Nollie D 00:17:56] , for her support. Thank you Nollie D.
And I want you watching to know that if you have evidence of police misconduct or brutality, please share it with us and we might be able to investigate. Please reach out to us. You can email us tips privately email@example.com and share your evidence of police misconduct.
You can also message us at Police Accountability Report on Facebook or Instagram, or at Eyes on Police on Twitter. And of course you can message me directly at Tayas Baltimore on Twitter or Facebook. And please like and comment, you know I read your comments, appreciate them, and I try to answer your questions whenever I can.
My name is Taya Graham and I am your host of the Police Accountability Report. Please be safe out there.
Host & Producer
Taya Graham is an award-winning investigative reporter who has covered U.S. politics, local government, and the criminal justice system. She is the host of TRNN's "Police Accountability Report," and producer and co-creator of the award-winning podcast "Truth and Reconciliation" on Baltimore's NPR affiliate WYPR. She has written extensively for a variety of publications including the Afro American Newspaper, the oldest black-owned publication in the country, and was a frequent contributor to Morgan State Radio at a historic HBCU. She has also produced two documentaries, including the feature-length film "The Friendliest Town." Although her reporting focuses on the criminal justice system and government accountability, she has provided on the ground coverage of presidential primaries and elections as well as local and state campaigns.