# Exposing the Shadow of Surveillance: ACLU Arms Defense Attorneys The **American Civil Liberties Union of Massachusetts** (**ACLU of Massachusetts**) has released a pioneering online toolkit this week, specifically crafted for criminal defense attorneys. The goal: to unearth whether police have secretly deployed an array of surveillance technologies—such as **facial recognition**, **automatic license plate readers** (**ALPRs**), and **gunshot detection systems**—to construct cases against their clients. This first-of-its-kind toolkit centers on meticulously designed legal motions. When granted by a judge, these motions will compel prosecutors to disclose any use of surveillance technology against a defendant. The scope of technologies covered is extensive, ranging from **“stingray” phone trackers** and commercially brokered location data to **AI-drafted police reports** and forensic tools capable of cracking phones or siphoning data from car infotainment systems. ## Preserving Digital Evidence Beyond disclosure, the toolkit also includes crucial preservation motions. These demands ensure that surveillance data is saved before it can be automatically deleted, targeting both government agencies and private vendors. These filings are rooted in a fundamental principle of American criminal law, established in 1963, which mandates that prosecutors must hand over all evidence that could aid the defense. Access to these motions will be provided via a password-protected library, exclusively for verified defense attorneys. Jennifer Herrmann, a staff attorney at the **ACLU of Massachusetts** and one of the toolkit's authors, highlights the dual front in their battle against unregulated surveillance tools. One involves pressuring cities to abandon technologies like **Flock**, the license plate reader network, and **ShotSpotter**, the gunshot detection system. The other, critically, is empowering defense lawyers to expose surveillance 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 offer attorneys a mechanism to "challenge what has already happened in the past," thereby building a legal record for future technological challenges. ## The Lag in Legal Oversight The project directly addresses what its creators identify as a persistent delay between the deployment of new police surveillance tools and definitive court rulings on their legality. For example, while cell phones became widespread by the late 1990s, the **United States Supreme Court** did not mandate warrants for cell phone location records until 2018. This delay isn't solely due to slow-moving courts; technologies with the poorest disclosure records often face the fewest court challenges precisely because defendants are unaware of their use. Accompanying materials from the **ACLU of Massachusetts** reveal that police sometimes deploy these tools "without even disclosing their use to the prosecutors handling the case." Historically, the **FBI** required local police departments to sign secrecy agreements before using **cell-site simulators** (commonly known as **stingrays**). In Baltimore, such an agreement even instructed prosecutors to drop criminal cases rather than reveal the device in court, despite its use over 4,300 times between 2007 and 2015. **FBI** records, later obtained by the **ACLU**, indicate these agreements continued until at least 2020. Real-world examples underscore this problem: * When Missouri investigators used **Fog Reveal**, a commercial tool mapping movements via app-harvested location data, in a 2017 murder investigation, no mention of it appeared in the trial exhibits that led to a conviction. * In 2022, Louisiana authorities obtained an arrest warrant for **Randal Quran Reid**, who was misidentified by **facial recognition** and jailed for nearly a week. The warrant attributed his identification to "a credible source," actively obscuring the software's role. ## Empowering Defense and Preserving Data **Gideon Epstein**, a Technology for Liberty policy counsel at the **ACLU of Massachusetts** and the toolkit's co-author, frames the issue not just as hidden evidence, but as defendants being entirely unaware of surveillance in their cases, and defense lawyers not knowing what to ask for. He cites the Massachusetts case, *Commonwealth v. McCarthy*, where the defense sought records for only a few cameras rather than the full statewide **ALPR** network. "A lot of the time they're not asking for the full scope of surveillance technologies in use," Epstein notes, emphasizing that the motions aim to prompt comprehensive demands from lawyers. The preservation motions tackle another critical issue: self-deleting surveillance evidence. **Axon's Draft One**, an **AI** tool for drafting police reports from body camera audio, discards its machine-written first draft by design. An **Axon** product manager reportedly told the **Electronic Frontier Foundation** (**EFF**) in July 2025 that this choice avoids "disclosure headaches." California legislators, however, disagreed, enacting a law last year that mandates agencies retain these original drafts. Similarly, **Flock Safety's** **ALPR** network deletes footage after 30 days by default, and Chicago's **ShotSpotter** contract declared gunfire data the vendor's property, not the city's. In such instances, crucial digital evidence needed by a defendant can vanish or become inaccessible before a defense attorney is even appointed. **Flock Safety** spokesperson Paris Lewbel states the company has procedures to maintain data integrity and authenticity, and tools to confirm unaltered images or reports. Lewbel also affirms **Flock**'s compliance with legal demands for customer data, referring non-binding requests to the customer while also notifying them. A spokesperson for **SoundThinking**, the maker of **ShotSpotter**, confirms compliance with subpoenas and court orders, and cooperation with "reasonable requests" for data in criminal proceedings. For confidential material, like trade secrets, the company requests court restrictions on dissemination. Epstein acknowledges the **ACLU** generally advocates for quick data deletion, lobbying Massachusetts to reduce **ALPR** retention to as little as two days. However, once an individual faces charges, that same data can be exculpatory evidence, which the preservation motions are designed to protect. ## Proving the Approach The efficacy of this approach has been recently demonstrated by Massachusetts's highest court. In 2024, the state’s **Supreme Judicial Court** permanently dismissed drug and firearm charges against a Boston man after police failed to comply with an order to turn over records of fake social media profiles, used for surveillance, featuring predominantly Black and brown avatars. Last year, the same court ruled that defendants can demand a hearing to force prosecutors to prove **ShotSpotter**'s accuracy before its evidence reaches a jury. These rulings highlight why the toolkit is grounded in Massachusetts law, which the **ACLU** believes can be adapted for other states, given the state’s high court's proactive stance on digital privacy.