The Bill of Rights was designed to protect the People from their government. That’s quite literally becoming history today as new challenges, now from local law enforcement, chip away at the Fourth Amendment’s protections of privacy. New laws and devices spread spying on Americans to the local level.
A Brief Explanation of Post-Constitutional America
The cornerstone of the Bill of Rights was that the People grant exceptions to those rights to the Government. Absent those specific exceptions, the rest of the stuff was inalienable, not up for grabs, not dependent in any way on Government’s decision to grant or withhold them. Constitutional America was clearly imperfect, but the underlying premise spoke of a striving toward an ideal.
The cornerstone of Post-Constitutional America is just the opposite. The People have what rights the Government chooses to allow them to have, such that privacy is the exception, free speech a variable, torture a tool to be used or withheld as the Government finds appropriate. It is a turning on its head of Constitutional America, back to a time when a tyrant and king (may we call old King George an “evil dictator” to use the preferred language of today?) controlled Americans’ daily lives by decree.
It should be unnecessary to have to argue the critical importance of the Fourth Amendment, but these days it seems necessary. If the First Amendment’s right to speak out publicly was the People’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. Privacy is the right to think without the Government intruding. It is part of being American. If you want to personally give it away for yourself, feel free, but you are required to allow others to exercise it.
9/11 Changed Everything
Under the umbrella of post-9/11 fear, the relationship between the Government and the People of the United States changed. As early NSA whistleblowers Thomas Drake, Bill Binney, Kirk Wiebe and others made clear, within days after the attacks, the vast capability of the NSA was turned 180 degrees away from sites abroad toward a new definition of the People: we were now targets.
Such acts, along with flimsy pieces of faux-legislation such as the Patriot Act, were not only harmful to our privacy by themselves, they also sent clear signals to law enforcement at all levels that new rules applied; after all, if the federal government was spying on Americans in clear contrivance of the Fourth Amendment, then why couldn’t local law enforcement do the same? With such tacit approval, and the redefining of every person in America as a potential terrorist, it all fell into place.
So while the Snowden NSA revelations expose violations of the Fourth Amendment on the largest scale, let’s examine some examples of how those big-scale acts filter down to local levels.
In 2008 the city of Los Angeles passed municipal ordinance 41.49 requiring hotels to gather, hold for at least 90 days and make available upon request a large amount of information on their guests. The information included guests’ credit card number, home address, driver’s license information and vehicle license number. Several dozen other cities, including Atlanta and Seattle, passed similar ordinances.
Ordinarily the police would need to show probable cause, and to seek individual warrants on a person-by-person, case-by-case basis, to gather such information. The L.A. ordinance, however, allows police to simply demand it from a hotel, with no judicial or other oversight. The premise was that the information was the property of the hotel once the guest voluntarily surrendered it in order to stay the night. Personal information transformed into “business records,” L.A. argues, is inherently less “private” than personal information per se.
The U.S. Supreme Court, after two opposite rulings through lower courts, has agreed to hear the case after the City of Los Angeles’ petition to do so. L.A. claims “These laws expressly help police investigate crimes such as prostitution and gambling, capture dangerous fugitives and even authorize federal law enforcement to examine these registers, an authorization which can be vital in the immediate aftermath of a homeland terrorist attack.”
In addition to the clear, broad Fourth Amendment violations, opponents cite the reality that information, once gathered, can be disseminated anywhere for any purpose. Data gathered in L.A. for a perhaps legitimate gambling investigation can go on to populate an infinite number of databases indefinitely for an undeterminable range of purposes into the future. It does not go away. It waits to be used.
And all that brings us to Virginia.
Virginia Police Collect and Share Phone Data
Five local police departments in southeastern Virginia have been secretly and automatically sharing telephone data and compiling it into a large database for nearly two years. According to a 2012 memorandum of understanding published for the first time this week by the Center for Investigative Reporting (the database had been kept secret from the public,) the police departments from Hampton, Newport News, Norfolk, Chesapeake, and Suffolk all participate in something called the “Hampton Roads Telephone Analysis Sharing Network.”
Those police departments “agree to share telephone intelligence information derived from any source,” including subpoenaed telephone call detail records, subpoenaed telephone subscriber information, and seized mobile devices. The telephone intelligence information will be stored in the master Pen-Link telephone database and participating agencies can make inquires of the database by either telephone or e-mail contact with a member.”
Such data transfers, the document goes on to explain, can happen automatically if the agency agrees to have certain software installed on their computer, or via e-mail or DVD. No information is available as to what, if any, data security protocols are in place.
The significance of such data transfer cannot be underplayed. The assumption by the police is that any data gathered legally– for example, under warrant, after a showing of probable cause specific to a case or incident– can then be stored, shared and repurposed forever as the police see fit. The shaky legal premise for this whole system is that once taken in via some sort of legal means (though of course there is no outside control that all of the data was gathered legally), the data becomes akin to common property, and no further justification or judicial oversight needs to be applied to its use, any use, ever, forever.
An even shakier legal premise it that a secret database of any kind can be maintained by the police: Virginia law, The Government Data Collection and Dissemination Practices Act, specifically states “There shall be no personal information system whose existence is secret.”
Not an End in Sight
Local actions have commonalities with the larger actions the NSA has been doing. The use of the collective where the law intended the individual– a single phone call versus redefining every call as a single set of business records– is clear. The manipulation of a legal act, such as collecting information via a warrant and then repurposing it into a general pool of data in Virginia, is also a marker of modern times. The most significant commonality between local actions and federal ones is the broad contempt for civil liberties. And that describes Post-Constitutional America as clearly as anything else.
The examples above are, or likely soon will be, going to be tested in court. Other offenses to the Fourth Amendment have fallen to the People’s side: In 2012, a court ruled law enforcement authorities generally need search warrants when they attach GPS devices to a vehicle. In July 2014, the Supreme Court said that the authorities need warrants to dive into the mobile phones of people they arrest.
At the same time, the proliferation of low-cost surveillance devices, such as license plate scanners and Stingray, continue to raise new questions even as a handful of older ones are resolved. The battle against the tyrant King George continues.