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Apple and Google recently announcedthey will jointlylaunch digital contact tracing tools to combat COVID-19. Their Bluetooth technology will allow Android and iOS phones to communicate and track when individuals pass within six feet of someone who tested positive for the novel coronavirus. Apple and Google are not alone. Around the world, countries including the UK, China, Taiwan, and South Korea have implemented comparable programs.

While these steps appear desirable, they raise serious risks for autonomy, privacy, and data security. The information collected could be used for commercial purposes, hacked by cybercriminals, or used to discriminate against individuals with COVID-19 or other health conditions. Moreover, it is difficult to establish whether the apps are beneficial and surveillance methods implemented now may persist long after the pandemic subsides.

To address these concerns, Apple and Google promised there will be strong protections around user privacy and emphasized that transparency and consent are of utmost importance. However, tech companies have repeatedly failed to protect user privacy and security; the time to rely on privacy legislation and industry self-regulation has passed. Instead of those top down approaches, which privilege legislators, lobbyists, and tech companies over individuals, we argue for a bottom-up approach.

State and federal lawmakers should create a right to digital self-defense ensuring that Americans can freely use anonymity, privacy, and cybersecurity tools to shield themselves against widespread and relentless data collection by private and public actors. Some examples of these tools are the TOR browser, virtual private networks (VPNs), personal servers such as the FreedomBox, and low-tech solutions such as clothing that disrupts facial recognition.

There are many more available tools of digital self-defense, and not all of them will be relevant to COVID-19 apps; nevertheless, recognition of a right to digital self-defense may serve as a catalyst to the development of new tools, covering different platforms, operating systems and scenarios.

While some of these tools are widely available, their use often comes at a cost. Specifically, people who adopt them may be subjected to increased government scrutiny. On the public side for example, the FBI usedspywareto track Tor users activity. Whether such surveillance constitutes an illegal search under the Fourth Amendment remains anunresolvedlegal question. In this context, people may wish to protect their privacy and cybersecurity even if they have committed no crimes.

On the private side, platforms such as Netflix and Hulu often refuse access to people who use these tools of digital self-defense. Some platforms, including Google, penalize users by requiring them to complete time-consuming CAPTCHAs thattrain the companys algorithmsto identify objects such as street signs and fire hydrants. These mechanisms frustrate users and encourage them to sacrifice privacy for easier access to services.

The right to digital self-defense may find support in the Bill of Rights, which was designed to protect states and their citizens from government tyranny. In the information age, we are witnessing the emergence of a new oppressive force digital tyranny, where tech companies threaten our privacy and security through widespread surveillance, profiling, and manipulation. They often work with federal agencies through public-private partnerships, such as the collaboration between Amazon Ring and up to400 law enforcement authorities.

Public-private partnerships including those directed at COVID-19 tracking can excuse federal agencies from respecting individual rights and freedoms because tech platforms conduct the surveillance, and most constitutional protections provided by the Bill of Rights do not extend to these private actors. Once the data is obtained, they pass it to their government partners. But the Bill of Rights is of limited effectiveness in the information age if it doesnt also extend to technology companies.

Some may argue that a right to digital self-defense is unnecessary because people can always choose not to opt-in to a contact tracing program. However, this criticism is rooted in outdated notions of consent. Tech companies have a history of using deceptive methods to influence peoples choices. They use deceptivechoice architectureto nudge people to consent. Besides, some surveillance programs are not optional; Chinas mandated contract tracing app Health Code controls where citizens may travel, and U.S. programs could shift in that direction.

Others might contend that a more desirable approach is to demand that tech companies take privacy and security more seriously. However, platforms have no obligation to implement safeguards beyond what the law requires, and U.S. privacy laws are inadequate and overly susceptible toinfluence by industry lobbyists.

A federal right to digital self-defense can serve as a foundation on which state lawmakers can build. For example, the Health Information Portability and Accountability Act (HIPAA) sets a national floor for health privacy, and states can pass their own laws that provide protection above and beyond what HIPAA mandates.

Alternatively, states could establish the right to digital self-defense on their own by statute and incorporate it into their constitutions. In states where citizens can pass their own laws through ballot initiates, such as California and Alaska, the right could be implemented by the people, thus bypassing state legislatures, and stifling lobbyist efforts to water down legislation.

The COVID-19 pandemic is a public health emergency, but widespread surveillance carried out by private actors is not the solution. Given Big Techs track record, the social cost of widespread surveillance likely outweighs potential benefits, especially if tracking persists beyond the pandemic.

Lawmakers should codify a right to digital self-defense and encourage Americans to use anonymity, privacy, and cybersecurity tools to ensure that their privacy and security are not threatened by digital tyranny.

Ido Kilovaty is an assistant professor of law at The University of Tulsa College of Law, visiting faculty fellow at Yale Law Schools Center for Global Legal Challenges and an affiliated fellow at Yale Law Schools Information Society Project. He was a 2028-2019 Cybersecurity Policy Fellow at New America.

Mason Marks is assistant professor at Gonzaga University School of Law and an affiliated fellow at Yale Law Schools Information Society Project. In addition to a law degree from Vanderbilt University, he also holds an M.D. from Tufts University School of Medicine.

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A right to digital self-defense will prevent abuse of COVID-19 surveillance apps | TheHill - The Hill

Societal consequences resulting from the novel coronavirus pandemic have been partially mitigated by the growing technological abilities of our society. Remote work environments, technology-driven logistics and supply chain management, online stores, and direct-to-consumer grocery delivery are all features of our society. With the technological advances of the past two decades, a large portion of the workforce is able to continue operating even while many business locations remain physically closed. We owe a lot of this success to information technology and, particularly, to our abilities to collect, store, and share data.

Increased computing power, complex collection and sharing of data, and powerful algorithms are helping to sustain our economy, as much as possible. This combination of factors along with consumer buy-in has produced in many respects a potential surveillance apparatus. Unlike the science fiction version of a surveillance state, these surveillance tools are largely fed through consumer buy-in and understanding.

Consumer or user knowledge of the potential side-effects may be limited, but all services require costs. This cost comes in the form of trade-offs, whereby consumers understand that a free online service like Facebook may be providing a social media platform in return for the right to use the data inputs to Facebooks advantage.

During this pandemic, much of life has been turned on its head. The majority of the American population is under shelter-in-place or lockdown orders. Restrictions vary by state, municipality, and county. These orders have forced most of American life to adapt through technology and wireless high-speed Internet. What most Americans do not yet understand is the complex collection and sharing of data that takes place mostly unnoticed. Some may encounter this when they search for a product on one electronic device and discover advertisements for that product appear on a totally separate device.

Behind the scenes, companies are not only selling products or services; they are exchanging data points to further target specific consumers. Harvard Business School Professor Shoshana Zuboff has coined the term surveillance capitalism to describe this phenomenon. Surveillance capitalism is the unilateral claiming of private human experience as free raw material for translation into behavioral data. These data are then packaged as prediction products and sold into behavioral futures markets.

Why does this surveillance apparatus matter during this pandemic?

Generally speaking, Americans are skeptical of invasions of privacy, whether it is by the government or business. During times of crisis, individuals are more prone to turn a blind eye to infringements of civil liberties. Unfortunately, America has instituted several disastrous measures during times of crisis in recent decades. We should ensure that similarly devastating measures are not implemented during this pandemic.

On April 10, Apple and Google announced a joint effort to enable the use of Bluetooth technology to help governments and health agencies reduce the spread of the virus, with user privacy and security central to the design. The novel coronavirus is transmitted through close proximity. As Googles Press Release noted, public health organizations have identified contact tracing as a valuable tool to help contain its spread; contact tracing is not itself a novel concept.

Countries throughout the world have implemented similar measures. For example, the Israeli government recently passed a law allowing their security agency to conduct contact tracing. Contact tracing is the process of identifying persons who have come into contact with an infected person, as well as the collection of further information about the nature of the contact. It is a much more tailored version of quarantining than lockdowns. This collaborative effort between Apple and Google allows individuals to opt-in through downloading an official application. Unlike other countries, the United States is relying on a private sector-led effort to conduct contact tracing.

Government surveillance and data collection have long been a point of contention in the United States, albeit in varying forms. The Fourth Amendment of the United States Constitution ensures a right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

The Supreme Court, in Carpenter v. United States, held that the governments acquisition of cell-site records was a Fourth Amendment search, thus the government needed a warrant to conduct the search. Carpenter did not address the question undergirding the Third-Party Doctrine, which covers an individuals expectation of privacy in information voluntarily turned over to third parties. It remains unclear how the government may differentiate between cell-site location information (CSLI) collected by smartphones and other like information.

Given the onslaught of local and state orders prohibiting certain activities and, in many cases, threatening individuals with arrest, it is prudent to ask whether or not such behavior may result in a scenario whereby the government has a need for surveillance. Carpenter answered one question and simultaneously led to more questions than before. At Protocol, Charles Levinson discusses a product called Locate X which allows investigators to draw a digital fence around an address or area, pinpoint mobile devices that were within that area, and see where else those devices have traveled, going back months. According to the article, Locate Xs terms of use forbid the tool as evidence in legal proceedings.

CNN recently published an article highlighting the use of a different location data tracking tool. Weve all encountered this story about spring breakers in Florida who ignored warnings to practice social distancing and then fell ill with the novel coronavirus. X-Mode, the company behind the tool, provides location tracking services and, in turn, provides the data it collects to advertisers only after it is anonymized. Why is this problematic? This lesser-known tool is generating considerable interest from the government in using location data from Americans cell phones to try to track and possibly curtail the spread of the coronavirus.

Assumg mass collection and sharing of data points, even those data points for which we may be unaware of their existence.

Much of the concern about government surveillance would subside if government were to take a less intrusive role in each of our lives. Unfortunately, this pandemic has resulted in more calls for government action, such as increased policing, police department lists of addresses of confirmed virus cases, curfews, mandatory closure of non-essential businesses, and government payments to all. For example, Judge Stuart Kyle Duncan in writing for the majority of the 5th Circuit Court of Appeals writes, "Jacobson instructs thatallconstitutional rights may be reasonably restricted to combat a public health emergency.

Given the overwhelming technological tools in the governments possession, it is imperative that the private sector takes the initiative so the government does not feel inclined to do so. Google and Apple have begun to address contact tracing here in the United States. Should their initiative be unsuccessful, government may feel the need to coerce businesses and information providers into providing data to their surveillance agencies.

As Justice Anthony Kennedy wrote in Carpenter, It is true that the Cyber Age has vast potential both to expand and restrict individual freedoms in dimensions not contemplated in earlier times. Even as our technological capacity has expanded to provide opportunities and capabilities the world has never seen, we must remain vigilant. We must ensure that our tools and resources are used to the advantage of individuals and not to power-hungry government officials or businesses that cower to the state.

Read more:
Mass Surveillance Is Spreading along with COVID-19 - Foundation for Economic Education

A few hours after the initial searches, Jessop and Ashjian told the court, Kumagai returned alone to Jessops house while his wife was home alone and said he needed to search it a second time. From there, they allege that Kumagai went into the bedroom, where the officers had previously observed that Jessop kept a collection of rare coins, purportedly valued at $125,000. Kumagai spent several minutes alone in the bedroom, making this second sweep, and then left after saying his investigation was finished. According to their petition, the officers seized more than $275,000 from their searches, including the the coin collection, creating a discrepancy with the police inventory sheet the officers filed later that night, which stated that the officers had only seized $50,000 in cash. No charges were filed against Jessop and Ashjian, though the city and officers say they avoided charges by agreeing to become informants and forfeiting the $50,000.

In their reply brief for the court, the officers and the city categorically deny that any theft took place. The brief strongly implies without stating outright that Jessop may be exaggerating the coin collections existence and value. They also note that the plaintiffs didnt bring a lawsuit until two years later, after Kumagai was arrested in 2015 for what the city describes as an unrelated incident. In that incident, federal prosecutors said that Kumagai told a suspected drug dealer in 2013 that he could shield him from a federal investigation and get him registered as a confidential informant in exchange for a $40,000 bribe. Kumagai eventually pleaded guilty to accepting $20,000 and received a two-year prison sentence.

Whether the thefts really happened, however, doesnt actually matter at this point in the litigation. When public officials ask a court to dismiss a lawsuit against them on qualified-immunity grounds, courts always assume that the plaintiffs allegations are factual when considering the request. Its unsurprising that the officers and the city want to strenuously insist that they didnt do what the plaintiffs claim they did. But its also irrelevant as a factor for judges to consider in qualified-immunity cases. If theres a factual disputeand there often isthats what the trial, which the officers are trying to avoid, is supposed to untangle.

The Supreme Courts test for qualified immunity hinges on whether the officers alleged actions were not just unconstitutional, but clearly established as unconstitutional at the time. Courts typically rely on federal court opinions to determine this. In the Jessop case, both the district court and the Ninth Circuit found no clear precedent to establish that the Fourth Amendment barred officers from stealing during a search. The Ninth Circuits survey of cases found only an unpublished Fourth Circuit case from 2004 that found it would be unconstitutional to not return seized property and a Ninth Circuit case from 2017 on impounding vehicles without a warrant. Thats not enough for a consensus, the panel found.

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To Protect and Serve, or Pilfer and Steal? - The New Republic

Some years ago, I led an 18-member department in a small town as chief of police. I was ordered by the mayor, my boss by statute, to summarily seize another officers property (long story, I will spare you). I advised the mayor that to do so without probable cause or a warrant would be a Fourth Amendment violation that I refused to be a part of.

I was fired for disobeying a direct order.

I have always been convinced that no chief should serve without being willing to be fired. Should no police officer serve unless they, too, are willing to stand between the Constitution and an unlawful order?

Police officers are not only trained, but they are also enculturated and indoctrinated. The availability of tools of coercion is the very reason for the existence of the police, otherwise, social workers and bureaucrats would answer the phone instead of officers. There is no government policy, much less law, that is not leveraged by its police power to enforce compliance.

The evolution of uniformed police in America began with the office of sheriff, then municipal police, then the state police agency entered with much political suspicion and often opposed by sheriffs. The exponential growth of federal law enforcement since the U.S. Marshals service now embraces over 75 federal badge-carrying, gun-toting entities.

Unlike most countries where policing is a national, unified force or a branch of the military, the U.S. resisted such an approach. The dislike of uniforms, formed by the excesses of the British Redcoats, was eventually overcome after the ubiquitous blue or gray of the Civil War. Law enforcement was a local affair governed by the voting public who could throw out a sheriff every 2 or 4 years, remove a councilperson or mayor, or even press for a recall of an elected official. The exponential growth of federal agents in law enforcement was exceeded only by the rapid growth of bureaucracies to which the legislatures granted administrative power backed by civil and criminal penalties.

An example I am experiencing as I write this is a prohibition on a drive-in service for the church I attend during the COVID-19 pandemic. Our Governor specifically endorsed drive-in services but gave latitude to local health agencies to alter the regulations.

Our regional health department said no drive-in services for the church, after two requests with no further avenue of appeal. This department is staffed by persons hired by a board of health who, in turn, are appointed by our Board of County Commissioners. The public health order prohibits, specifically, all church events other than electronic delivery. That same order allows marijuana curbside pickup, restaurant drive-up service, and I can still walk into my local coffee shop to get a cup to go.

Frankly, since I know of no scientific evidence that COVID-19 would be leaping from car to car in our church parking lot while drivers listen on the FM radios short-range transmission, the order is in violation of both the freedom of peaceably assemble and the free exercise of religion and lacks the means to petition for the redress of grievances.

Clearly the disobeying of an order will not go unpunished. Whether you are regarded as a hero or a pariah, courageous or cowardly, there are those who will never forget your choice.

Beyond job loss, or discipline, or even prosecution there looms the reputation as a troublemaker. You may or may not be asked to be interviewed by the news media, but every idle word and every social media post will be examined for reasons to terminate you that cannot be directly pinned to your choice. Do not expect the next promotion.

Clarity of conscience is one thing, but the clarity of the rules is another. Is there a process and policy for refusing or countermanding orders of superiors? Is the thing you have been told to do a breach of law or ethics about which a court would agree?

Failure to arrest a protestor with whom you agree but who is trespassing or disturbing the peace is using your office to express your views. Failure to arrest a law-abiding protestor because the agency head vehemently dislikes the protestors views is a matter of principle.

There are times when citizens engage in civil disobedience for the sole purpose of generating a court case or media attention.

The motives of a drive-in churchgoer may be to sincerely adhere to religious belief about gathering together, or atheistic anarchists just wanting to stick it to the man. The motive of the object of our police action is of no concern to the enforcer, only whether the overt behavior gives us cause to take enforcement action.

If a controversial matter can be resolved through debate in the courts on legislative bodies, an officers refusal may be of no value in addressing the wrongful action of superiors or other government actors.

The issuance of $500 summonses to drive-in church attenders in the parking lot of Temple Baptist Church in Greenville, Mississippi, was received by each violator graciously from all reports, but what if one had resisted? Would the effort be worth using a TASER on grandma in her Easter best? Will the loss of amicable relations between those good citizens and the police be easily rebuilt? Will the image of an unmasked bus rider being dragged away by Philadelphia police be forgotten by summer?

As I reflected in a former PoliceOne article, Justice Brandeis made a famous dissent in the 1928 caseOmstead v. United Statesin which he stated,

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They conferred, as against the Government, the right to be let alone the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of theFourth Amendment.

To be clear, we understand that great powers accrue during crisis times. Whether overstated or understated, the science of the coronavirus made most of the current restrictions on our freedom of movement and commerce justifiable. We also know that litigation and legislation about those measures will continue for years. But can the uniformed officer remain silent and go about a duty that is repugnant to the Constitution at that moment, hoping for a distant resolution in the courts of law and public opinion? Each officer must examine their willingness not only to die for their duty to the public but to lose much in carrying out their ultimate duty to the Constitution.

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Police balance enforcing the law with upholding the constitution - Police News

Defendant was charged under the LCMC [Las Cruces Municipal Code] for the offenses of evading an officer and concealing identity.

The evidence presented below is undisputed. The trial testimony established that two officers were in Defendant's neighborhood investigating a report of a stolen car. Defendant, apparently believing the officers were attempting to catch and ticket traffic violators just to generate revenue, recorded the officers on his cell phone and yelled that they were wasting taxpayer dollars and should go collect revenue elsewhere.

At some point, Defendant's neighbor came outside and spoke with one officer while the other officer remained with Defendant. The neighbor stated that he came outside because he heard his dogs barking, not due to Defendant's yelling. The neighbor testified that he saw Defendant holding up his cell phone like he was recording the officers and verbally criticizing the police about his belief that police waste taxpayer money. The neighbor told the officer that Defendant was not bothering him but said that Defendant was "always yelling." He further testified that Defendant was talking in a "high tone of voice" and in an excited, but not agitated, manner. There were no complaints from other neighbors.

Following his conversation with the neighbor, the officer approached Defendant, who was standing with another officer, and asked him for identification. Defendant turned his phone toward the approaching officer, held up his other hand in a gesture to stop and told the officer "step back." As the officer continued to approach, Defendant said "stay away from me." The officer told Defendant "if you keep yelling and you keep screaming, and you keep causing people to come outside, you will be arrested for disorderly conduct."

The officers repeatedly demanded Defendant provide his identification. Defendant responded, "I don't need to identify myself to you, because I have not committed [a] crime." One of the officers replied, "The crime is disorderly conduct." According to the officers, Defendant was obstreperous with them, denied their repeated request to produce identification, and ultimately started to walk away into his yard.

The officers ran after Defendant and once in Defendant's yard, pushed Defendant to his knees, tased him, and pepper sprayed his face. Defendant was handcuffed and arrested. Following a bench trial, Defendant was convicted of two counts of resisting, evading or obstructing an officer and one count of concealing identity. Defendant now appeals.

{Because we conclude that the officers were without reasonable suspicion to detain Defendant, we need not address Defendant's argument that his conduct was protected by the First Amendment.}

[A.] Reasonable Suspicion as an Element of the Charges

Like its state statute counterpart, one of the essential elements of the LCMC crime for evading an officer is that "the person committing the act of evasion has knowledge that the officer is attempting to apprehend or arrest him[.]" Our Supreme Court in State v. Gutierrez, stated that the definition of "apprehend" in Section 30-22-1(B) means a "seizure[ ] in the name of the law" and equated such an apprehension "to include a situation in which an officer is attempting to briefly detain a person for questioning based on reasonable suspicion." Hence, our Supreme Court concluded that the presence of reasonable suspicion is crucial to a determination of sufficiency of the evidence for evading and eluding an officer because if the detaining officer lacked reasonable suspicion then he also lacked the legal authority to detain the defendant.

Further, like the state statute, one of the elements of concealing identity pursuant to Las Cruces, N.M., Code of Ordinances, art. I, Section 19-4 requires proof that the officer is acting "in a legal performance of his duty." In Ortiz, this Court recognized well-established law that "[a]n officer detaining a suspect for the purpose of requiring him to identify himself, has conducted a seizure subject to the requirements of the Fourth Amendment." Reasonable suspicion is required for such a seizure. Consequently, we held that absent reasonable suspicion to detain, the seizure of the defendant was unlawful, and the prosecution failed to prove that the officer was in the legal performance of her duty..

[B.] The Officers' Lacked Reasonable Suspicion to Detain Defendant

The district courtapparently without regard to the neighbor's testimonyconcluded that the officers had reasonable suspicion to investigate disorderly conduct based on the fact that Defendant loudly criticized police. Disorderly conduct consists of: "[e]ngaging in violent, abusive, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace[.]"Conduct is not criminal, or suspicious, simply because it is boisterous or unreasonably loud; the conduct must also tend to disturb the peace.

This is particularly true when the conduct at issue is comprised of words alone. New Mexico courts have criminalized only limited classes of speech: "the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' wordsthose which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

The public's sensibilities are tough enough that, typically, the act of yelling alone does not shatter public order or threaten to do so. Although the Legislature has not specifically defined "conduct that tends to disturb the peace," our Supreme Court has implicitly defined it as "a disturbance of public order by an act of violence, or by an act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community." Our Supreme Court has instructed that we construe the disorderly conduct statute narrowly, and "unless the acts [that are alleged] fall clearly within the statute, they are not disorderly.

In its ruling that Defendant's conduct toward the officers provided reasonable suspicion to investigate disorderly conduct, the district court explained:

"[Y]ou're not allowed to be so boisterous and so loud to police officers, and accusing, and threateningI think that was the disorderly conduct. When police officers approach us and want to investigate something, it's "yes" or "no, sir", or somebody can end up dead. When a police officer approaches you and asks you for ID, you give it to them. That's the way that goes. Now if you're just standing on the street, I guess, you know and doing absolutely nothing, which is not your situation, I suppose you legally have a right not to give your ID, but then you probably are making a judgment call that you need to let a judge make."

Contrary to the district court's reasoning, our Supreme Court and this Court have applied the rule that in most instances "arguing with a police officer, even when using profane and insulting words, will not be enough to constitute disorderly conduct, unless the words are coupled with threatening behavior." Merely yelling obscenities at an officer, without more, does not create reasonable suspicion to investigate or probable cause to arrest for disorderly conduct. {Although the district judge implied that Defendant's conduct was accusing and threatening, our review of the record and lapel tape is devoid of evidence that Defendant by word or action made any threats to the officers and neither party has asserted on appeal that Defendant's criticisms of the officers were threatening.}

"Police officers, by nature of their training, are generally expected to have a higher tolerance for offensive conduct and language." "We are not indifferent to the officers in the case." These officers play an invaluable role in serving and protecting our community, and unfortunately, they are often subjected, as they were here, to ill-advised behavior. "However, it is because of their degree of skill, training, and experience that we rely on officers," not only to complete their duties, but "not to react to verbal provocation, at the risk of escalating a situation rife with conflict."

Without evidence of anything more than Defendant's loud remarks and cell phone recording of the officers, all of which occurred in their presence, the testimony did not give rise to an objectively reasonable suspicion that Defendant had committed or was committing the crime of disorderly conduct. "New Mexico is among the states that holds police officers to a higher standard of tolerance for abuse or offensive language."

We next address the City's argument that, even in the absence of reasonable suspicion to investigate disorderly conduct, Defendant's repeated refusal to produce identification or, following this refusal, to respond to officer commands not to walk away justified Defendant's detention and arrest. While the City is correct that officers "do not need justification to approach a person and ask that person questions," this is true only so long as the person remains free to leave and is not required to answer their questions. "[A] person has the constitutional right to walk away from an officer who lacks reasonable suspicion and simply wants to question the person[.]"A defendant who flees a seizure that is unsupported by reasonable suspicion cannot be punished for exercising his right to end the encounter and walk away. In sum, the officers did not have reasonable suspicion to detain Defendant and demand his identification.

Lastly, to the extent the City argues that it was reasonable for the officers to detain defendant to investigate his yelling and whether he was disturbing the tranquility of the community, we disagree. The evidence does not support a conclusion that it was reasonable for the officers to investigate Defendant's conduct as tending to cause "consternation and alarm."

Our review of the record does not reveal, nor does the City point to, any threatening behavior or violent conduct accompanying Defendant's verbal criticisms and cell phone recording of the officers. Additionally, the record does not reflect that Defendant's behavior toward the officers tended to have any effect on others at all, let alone that it rose to the level of tending to cause "alarm" amongst his neighbors.

While the testimony established that a neighbor came out of his home during the encounter between officers and Defendant, Defendant was not the reason that the neighbor came outside. The officers' testimony did not articulate any objective facts which would establish that Defendant's conduct tended to disturb the peace. Indeed, the record is void of any evidence that Defendant's yelling and cell-phone recording annoyed or bothered anyone other than the officers.

[T]here must be evidence that those who heard a defendant's remarks were negatively affected by or reacted to the statements in order to show that remarks were likely to incite listeners to breach the peace because "[t]o hold otherwise would be to allow police routinely to add disorderly conduct charges to any underlying charges because it is not uncommon for those being arrested to become belligerent and for crowds to gather at the sight of an arrest[.]" Without more, Defendant's loud criticism of the police and his act of recording them on his cell phone were not enough to provide an objectively reasonable suspicion to investigate Defendant for disturbing the tranquility of the community.

Absent reasonable suspicion establishing the officers' legal authority to detain Defendant, there was insufficient evidence to support Defendant's convictions for evading arrest and concealing identity. Accordingly, we do not address the remaining elements of the charges.

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"I Suppose You Legally Have a Right Not to Give Your ID [to Police]," - Reason