Surveillance in a Free Society (Long)

 
... so winning a case in court doesn't mean you get to collect.  Sure,
you can take a pound of flesh, but you can't have a drop of blood.
Generations of Englishmen have amused themselves with Shakespeare's
fictional account of the barbarism (and antisemitism) of Renaissance
justice portrayed in _The Merchant of Venice_.  Today it's
different -- not.

The American Public approves any and all methods to apprehend and
prosecute kidnappers, child molesters, stalkers, controlled-substance
pushers, and gangsters of every persuasion, believing such means to be
justified in the end, and, unlike Shylock, we are not balked in our
aims if we overreach what Justice allows -- if we choose means of
enforcing Law that put Liberty at risk:

"Across the country, police are using GPS devices to snare thieves,
drug dealers, sexual predators and killers, often without a warrant or
court order. Privacy advocates said tracking suspects electronically
constitutes illegal search and seizure, violating Fourth Amendment
rights of protection against unreasonable searches and seizures, and
is another step toward George Orwell's Big Brother society. Law
enforcement officials, when they discuss the issue at all, said GPS is
essentially the same as having an officer trail someone, just cheaper
and more accurate. Most of the time, as was done in the Foltz case,
judges have sided with police" (Hubbard).

... so, in order to tail more crooks more closely more cheaply, we
risk violating the rights of our neighbors, notwithstanding court
decisions in some jurisdictions:

"Wisconsin police can attach GPS to cars to secretly track anybody's
movements without obtaining search warrants, an appeals court ruled
Thursday."

"Officers do not need to get warrants beforehand because GPS tracking
does not involve a search or a seizure, Judge Paul Lundsten wrote for
the unanimous three-judge panel based in Madison."

"'We discern no privacy interest protected by the Fourth Amendment
that is invaded when police attach a device to the outside of a
vehicle, as long as the information obtained is the same as could be
gained by the use of other techniques that do not require a warrant,'
he wrote" (Foley).

... so what we have here is police coming into your driveway
surreptitiously to conceal a tracking device on your vehicle parked
there.  In the instant case, they had probable cause, and they had a
search warrant.  The perp's argument that the device tracked him into
locations shielded by his right to privacy was no defense.  What's
scary is that the court added that the police didn't even need the
warrant because they had probable cause to tail him.  Without having
read the text of the decision or knowing anything about how these
things work in real life, I'm guessing the warrant was controversial
because it didn't name the premises to be searched or the items to be
seized.  The press accounts don't say.

"So far, the U.S. Supreme Court has not weighed in on unwarranted GPS
tracking, but supporters point to a 1983 case that said police do not
need a warrant to track a car on a public street with a beeper, which
relays the car's location to police.

"Lower courts that have addressed the issue have not all agreed. The
Washington state Supreme Court has ruled that police must obtain a
warrant to use the device in that manner, but courts in New York,
Wisconsin and Maryland, and the U.S. Court of Appeals for the 7th
Circuit in Chicago, have held that a warrant is not necessary"
(Hubbard).

... so, if you found a tracking device on your vehicle, would you:

(1) Microwave it for three minutes on "high?"

(2) Sell it?

(3) Sell the vehicle?

(4) Park the vehicle in front of the Police Station?

(5) Call your lawyer?

... so, if you're not doing anything wrong, you shouldn't have
anything to worry about, right?  Should you resort to number five even
if you're not engaged in illicit activity?  Yes, probably you should
whether you're a crook or not:

"It's probably true that ordinary citizens uninvolved in political
activism have little reason to fear being spied on, just as most
Americans seldom need to invoke their 1st Amendment right to freedom
of speech. But we understand that the 1st Amendment serves a dual
role: It protects the private right to speak your mind, but it serves
an even more important structural function, ensuring open debate about
matters of public importance. You might not care about that first
function if you don't plan to say anything controversial. But anyone
who lives in a democracy, who is subject to its laws and affected by
its policies, ought to care about the second.

"Harvard University legal scholar William Stuntz has argued that the
framers of the Constitution viewed the 4th Amendment as a mechanism
for protecting political dissent. In England, agents of the crown had
ransacked the homes of pamphleteers critical of the king -- something
the founders resolved that the American system would not countenance"
(Sanchez).

... so we see that surveillance can be a form of harassment just like
stalking.  We pay the police to protect us against scofflaws, but
nobody is competent to disclaim the need for protection against the
police, either.  That's why we have the 4th Amendment to the
Constitution, and that's what it means.

... so what do law enforcement officers think?  How do they react when
they themselves are tailed?  Here is a report of sabotage of onboard
GPS locators installed on squad cars in Milwaukee:

"Department officials downplayed the foil incident as a one-time
problem that hasn't resurfaced. Chief Nannette Hegerty called it a
'non-issue.'

"Asked why an officer might disable the device, Hegerty said, 'I don't
know. Don't ask me why some of the officers do what they do.'

"Aldermen reacted with outrage.

"'Are you serious? Officers are doing it themselves?' Common Council
President Willie Hines said. 'It is ridiculous incidents like this
that bring the entire department under fire. ... That is what you
expect of kids, very immature kids'" (Diedrich).

The Alderman protests too much methinks.  Perhaps those intimately
acquainted with law-enforcement methods know of more threats from
surveillance than are dreamt of in our philosophy.

... so, aside from atrocities leading up to the American Revolution,
what else do we have to fear from Big Government?

"The original FISA law was passed in 1978 after a thorough
congressional investigation headed by Sen. Frank Church (D-Idaho)
revealed that for decades, intelligence analysts -- and the presidents
they served -- had spied on the letters and phone conversations of
union chiefs, civil rights leaders, journalists, antiwar activists,
lobbyists, members of Congress, Supreme Court justices -- even Eleanor
Roosevelt and the Rev. Martin Luther King Jr. The Church Committee
reports painstakingly documented how the information obtained was
often 'collected and disseminated in order to serve the purely
political interests of an intelligence agency or the administration,
and to influence social policy and political action'" (Sanchez).

Fortunately for us, government harassment has not entirely silenced
those determined to speak Truth to Power.  Unfortunately for us, we'll
never know how much else has gone unsaid since those who might have
spoken out could not defend themselves.

I've harped in the past upon the eMail, Internet, and telephone
surveillance, which the Federal government conducts on its citizens --
all the while protesting too much that it does not.  Here's the latest
on that subject, exposing a not unexpected situation where one hand of
government more or less deliberately has no good clue what another
hand is doing:

"The National Security Agency intercepted private e-mail messages and
phone calls of Americans in recent months on a scale that went beyond
the broad legal limits established by Congress last year, government
officials said in recent interviews."

"Officials would not discuss details of the overcollection problem
because it involves classified intelligence-gathering techniques. But
the issue appears focused in part on technical problems in the
N.S.A.'s ability at times to distinguish between communications inside
the United States and those overseas as it uses its access to American
telecommunications companies' fiber-optic lines and its own spy
satellites to intercept millions of calls and e-mail messages.

"One official said that led the agency to inadvertently 'target'
groups of Americans and collect their domestic communications without
proper court authority. Officials are still trying to determine how
many violations may have occurred.

"The overcollection problems appear to have been uncovered as part of
a twice-annual certification that the Justice Department and the
director of national intelligence are required to give to the Foreign
Intelligence Surveillance Court on the protocols that the N.S.A. is
using in wiretapping. That review, officials said, began in the waning
days of the Bush administration and was continued by the Obama
administration. It led intelligence officials to realize that the
N.S.A. was improperly capturing information involving significant
amounts of American traffic" (Lichtblau).

... so here we have yet another example of warrantless surveillance --
this time of ordinary Americans going about their mundane and mostly
legal business, and I'm sure we're all shocked -- shocked! -- that
this is happening.  Sooner or later we'll have to round up the usual
suspects and get to the bottom of it.  ... or we're going to have to
become a lot more cagey about how we communicate with one another.

... so let's put two and two together:

"The American Civil Liberties Union announced today its discovery that
former U.S. Attorney for New Jersey Chris Christie gave approval to
track people's precise whereabouts through their cell phones without a
warrant."

"Although low-level courts have authorized the tracking, New Jersey
and Florida are the only two known states in which federal prosecutors
are obtaining court orders for GPS or similarly precise tracking
information merely by showing that the tracking information is
'relevant and material' to a criminal investigation -- a substantially
lower burden than the 'probable cause' standard required by the
Constitution.

"The Justice Department itself has stated that federal prosecutors
should seek probable cause warrants to obtain precise location data in
private areas" (ACLU).

... so how does that work?  Does the FBI call up a Federal Prosecutor
and have her call AT&T and say, "We want to know the geographic path
that such and such cell phones followed between the hours of such and
such on such and such a date?"  Is that all they have to say to cause
your friendly, neighborhood phone company to spill its guts?
Apparently!  One would think there was some kind of precedent for
that.  Maybe -- just maybe -- this kind of thing is a normal
occurrence nowadays.

... so you see there are probably really good reasons for all
Americans -- including the meek -- to be concerned about keeping phone
records secret from each other and from the Police.  It's not just the
amount of your bill.  It's not who you've been talking to anymore.
It's not even what you've had to say.  It's that they can know where
you've been ... because then they could interfere with where you want
to be today or where you want to go tomorrow -- for whatever reason or
for no reason whatever.  Up to now our government has rarely attempted
that.  They haven't had the power.  They shouldn't be granted that
power.

The Public are suckers for sensational crime -- notably (but not
limited to) abductions of little white girls.  Big Media give such
cases hysterical treatment.  They distort the risk of sensational
crime to the point that everyone feels vulnerable when in fact no one
is really.  They drive us to take a pound of flesh from every hoodlum
on the planet no matter how much of the lifeblood of our Liberty we
spill doing it.  This is not Justice.  This is Vengeance.

... so Justice is the counterpoise.  It is there to pose the critical
question: How do you take a pound of flesh without spilling a drop of
blood?  Answer: You don't.  Justice forbids it.  Justice requires a
measured approach -- a rational balance of risk -- in a world that
does not turn on the "estimation of a hair."  

Our system has always required police to ask a judge (nicely) for
permission before searching any Citizen's effects, and it's a lot more
important to the rest of us that they do it rather than that they
catch an illegal alien or two.  Our system is supposed to require the
Federal government to ask a panel of judges (nicely) to approve
wiretaps of crime syndicates operating against our national security.
Procedures need to be changed (again I guess) to rule out blanket and
retroactive approvals.  These run counter to the spirit of the
Constitution, which apparently applies to everyone within reach of our
jurisprudence.  Each case should be made, and approval ought to be
granted before allowing police to compass anybody's Liberty.

-----

Works Cited

o ACLU of New Jersey. "NJ's Federal Law Enforcement Used GPS To Track
People's Cell Phones: Justice Department Documents Reveal Former
U.S. Attorney Chris Christie Approved Tracking Whereabouts With No
Warrant." 23 Apr. 2009.  9 May 2009
<http://www.aclu-nj.org/news/njsfederallawenforcementus.htm> .

o Diedrich, John. "Squad Car Locators Blocked: Foil Thwarts GPS; Some
Milwaukee Officials Angry." _Journal Sentinel_ [Milwaukee] 23 Nov.
2006.  9 May 2009
<http://www.jsonline.com/news/milwaukee/29222244.html> .

o Foley, Ryan J. "Wisconsin Court Upholds GPS Tracking by Police."
_Chicago Tribune_ 7 May 2009.  9 May 2009
<http://www.chicagotribune.com/news/chi-ap-wi-gps-police,0,5890193.story> .

o Hubbard, Ben. "Police Turn to Secret Weapon: GPS Device."  _Washington
Post_ 13 Aug. 2008: A01.  9 May 2009
<http://www.washingtonpost.com/wp-dyn/content/article/2008/08/12/
AR2008081203275_pf.html>.

o Lichtblau, Eric, and James Risen. "Officials Say U.S. Wiretaps
Exceeded Law." _New York Times_ 15 Apr. 2009.  9 May 2009
<http://www.nytimes.com/2009/04/16/us/16nsa.html?_r=1&pagewanted=all> .

o Sanchez, Julian. "Wiretapping's True Danger: History Says We Should
Worry Less about Privacy and More about Political Spying." _Los
Angeles Times_ 16 Mar. 2008.  9 May 2009
<http://articles.latimes.com/2008/mar/16/opinion/op-sanchez16> .

o Shakespeare, William. _The Merchant of Venice_. 1623. July 2000.
Project Gutenberg.  9 May 2009
<http://www.gutenberg.org/dirs/etext00/0ws1810.txt> .

--
.. Be Seeing You,
.. Chuck Rhode, Sheboygan, WI, USA
.. Weather:  http://LacusVeris.com/WX
.. 53° — Wind NNW 7 mph

 
In other words, and forgive my very brief paraphrasing, police powers do not
and must not exceed those available to any private citizen. Period, and full
stop. If the action exceeds that which is reasonable and legal for any
private citizen, that individual must seek court permission for every
instance of that action.

 

If a cop does it, it's perfectly legal.  If a suspicious spouse does it, it's
stalking and HAS been punished with jail time and hefty fines.

Not that there's a double standard or anything.

--
Jack

 
The post was quite long and I couldn't figure out exactly where you're
going.  Just let me say this much ...

The notion of freedom from search and seizure without warrants doesn't exist
in a vacuum.  Any discussion about this matter has to start by enumerating
the specific phenomena you're trying to prevent.  Phenomena that come to
mind include:

a)Harrassing political dissenters.

b)Perpetuation of power by illegal means (a current administration gathering
data to help it stay in power).

c)The elimination of a citizen's ability to correct mistakes that affect him
(for example, a DNA lab providing other samples of evidence for verification
by an independent lab).

d)Imprisoning people for long periods of time without due process.

e)????

So, the "right" test about government behavior is not the constitution.  The
"right" test is against the list of things you're trying to prevent.

With warrantless wiretaps, the opportunities for unwanted effects are
substantial (and your post mentioned some of them).

But with GPS surveillance of the position of vehicles or cellphones without
a warrant, it isn't clear if it would lead to any of the undesirable
effects.  It is true that the FBI could, for example, gather information to
help its budget or help to perpetuate the administration in power.  But
there may not be a lot of really useful information of that type you can
gather just by where a vehicle or an individual goes.

It isn't clear to me that gathering data about the movements of individuals
without a warrant will threaten democracy.

It is clear to me that listening in on phone conversations without a warrant
will threaten democracy.

See the difference?

Datesfat.

 We recently had a couple of undercover chappies attempting to place a
tracking device on a suspected drug manufacturers car. The cops were in
plain clothes and the guy heard some noise and thought someone was
stealing his car.....he chased them down the road with a slug gun ( a
'high power' rifle) and killed one and wounded the other.