When you can’t trust the Judge

By David Siffert and Julie Lee

As Yankees star Aaron Judge stepped up to the plate on May 15, he took an uncharacteristic look to the side, then crushed a 462-foot homer against the Toronto Blue Jays pitcher. That may seem innocent enough, but the baseball world has been burned before, most notably by the Houston Astros, when they implemented a complicated electronic surveillance conspiracy to identify their opponents’ secret strategy signals called “signs.” The baseball world never forgot it, so fans quickly accused Judge of similar sign stealing.

Sign stealing in baseball has grown increasingly easy with the advance of better and cheaper video camera technology. In 2017 and 2018, Houston used cameras to steal signs of opposing teams when playing at home. By the time they got caught, they had already won a World Series and a division championship. It was a scandal that rocked baseball worldwide, and Major League Baseball quickly implemented rule changes to prevent it from happening again.

With the rise of computer vision algorithms, stealing signs will only be easier as time passes.

But the proliferation of cameras powered by advanced AI software (like facial recognition) isn’t limited to baseball. These advanced cameras are increasingly monitoring our every move, in stadiums and on the street. When we aren’t on camera, we are traced by our cell phones. And even at home, most of our communications – whether over a cell phone or computer – pass through countless intermediaries that view, package, and sell our information.

All this data, collected and stored, is almost always unprotected and accessible by law enforcement without showing any valid reason for needing it. At best, when a court order is required, law enforcement just asks for a judge’s sign-off before they pour over the most intimate details of our lives.

But increasingly, judges are willing to sign off on warrants, turning over our data even when police have no reason to believe we have done anything wrong. Take geofence warrants: Police think a crime was committed in a general area at a general time, say Yankee Stadium, during a game. They then go to a judge asking for a warrant demanding that Google turn over extensive location data on hundreds if not thousands of people simply because they were in or near the stadium at that time. Usually, the Constitution requires the police to show “probable cause” before searching each particular person. However, judges have not been enforcing this rule when it comes to geofence warrants, and New Yorkers are searched simply because they were in the wrong place at the wrong time.

Similarly, police can request a warrant to identify everyone who Googled a specific search term, even if those individuals are not suspected of committing a crime. For example, in a state where abortion is illegal, police could issue a “reverse keyword search” warrant on the term “abortion clinic near me.” In New York, they might request the identity of anyone who searched for “Yankee Stadium.” Judges grant warrants like these every day.

There is, however, something we can do about this abuse of our Constitution. The New York State legislature is considering a first-in-the-nation plan to ban geofence warrants and reverse keyword search warrants. If that sounds exciting to you, check out S.217 (Senator Myrie) and A.3306 (Assemblymember Solages).

It would be great to live in a world where we could trust Judges – Aaron or otherwise. But, if we pass this bill, at the very least, we can keep our data – if not our signs – safe from prying eyes. If the umpire is striking back against electronic surveillance, it’s long past time for lawmakers to do the same.

Lee is a research intern at the Surveillance Technology Oversight Project (S.T.O.P.), a labor organizer, and postdoctoral researcher at New York University. Siffert is the Legal Director of S.T.O.P.