Earlier in this space I wrote about the fact that, despite reports to the contrary, possession of marijuana is NOT legal in Colorado – it is still a federal crime.
We have a lot of laws in this county – most of them at the state level. So, for example in Colorado, it’s illegal for car dealers to show cars on Sunday. In many states it remains illegal for unmarried persons to cohabitate. Consensual sodomy remains a crime on the books.
I spoke about some of the criminal, forfeiture and collateral consequences of making these things crimes, but there are also investigative consequences. The government could get a search warrant (or other warrant) to install surveillance equipment in a persons’ home to obtain evidence that they were violating Maryland’s sodomy law Md. Code 27-553 (making oral sex between consenting adults of any gender illegal).
In fact, the biggest protection of the civil rights and civil liberties of Americans is sloth. Cops, prosecutors, judges, agents, marshals – everyone – are essentially lazy. They have limited resources, limited ability to investigate and prosecute, and therefore set priorities about what crimes to go after and what to let slide. Even when they decide to go after a crime, they have limited resources to dedicate to the investigation. Installing a video surveillance takes time, resources, money, and requires monitoring, minimization, and technical skills. They aren’t going to waste these resources on silly cases.
One of the arguments the government and others made in the case of United States v. Jones in the Supreme Court (the GPS installation case) related to a previous case called United States v. Knotts.
In Knotts, the government installed a beeper into a bottle of precursor chemicals which they sold to suspected drug dealers. They then used the beeper to help cops follow the car containing the precursor to the defendant’s home. Once in the home, they ceased monitoring.
If we can follow someone as they drive down the street, and we can put a beeper (effectively) in their car, then why can’t we either install a GPS device on their car, or better yet, monitor their movements with the GPS device they already have with them? Why would you keep cops from using technology to do their jobs? People have no reasonable expectation of privacy in their location when they are on the public streets. The technology just enhances the cops’ ability to track what they could track otherwise?
The problem is that, as the technology becomes better, cheaper, and easier to be used, it will be used. More and more.
As we remove barriers to surveillance – both technical and legal – we get more surveillance. If it costs the cops nothing, or next to nothing to conduct surveillance, they will do more of it. So instead of installing a camera in the bedroom to detect violations of the sodomy laws, I get a warrant to turn on the webcam in the bedroom. The warrant application becomes a “click on” form which is “approved” by the court with a click. But even that is too burdensome. I then get expert software that will monitor the video for me, and detect any lewd behavior. So all I have to do is click a button to get the warrant, and the software will send me a test message “WARNING – THE JOHNSON FAMILY IS GETTING IT ON.”
The software will capture the images for later evaluation (see, speeding or red light cameras), prepare the charging document, insert the picture into the charging document, and even serve the process and arrest documents. No muss, no fuss. And it’s all perfectly legal.
This is why, even if it were appropriate in 1989 for the government to obtain the “wrapper” information from telephone calls on one person, doing the same thing for the same records in 2014 for millions of records is a different thing altogether.
Expectations of privacy are based on legitimate assumptions not only about what citizens can do, but also on what police can and should do. When the government attempted to justify pointing infrared sensors at people’s homes to learn whether they were emanating heat (and infer that they might be growing marijuana) they argued that people had no legitimate expectation of privacy in the heat they were emanating from their homes.
In fact, they were discharging this heat from their home in a way that could be measured. How could they have an “expectation of privacy” in something they were voluntarily “throwing out?” The government makes the same argument about its ability to use dogs to sniff people, luggage, cars, locked items, and homes for drugs, money, and anything else that dogs can be trained to sniff. The particles of drug, money, bombs, radiation, etc., have been abandoned, and therefore measuring it invades no privacy interest. Sound, light, electromagnetic waves, etc., all can be measured at a distance and in bulk.
Early cases asserted that people had no expectation of privacy in cell phones, cordless phones and other devices because these were radios transmitting in public, and the government could capture the data in the ether. Early cases also held that the government could listen in on phone calls without a warrant because they weren’t “searching” or “seizing” anything. Same with e-mail. If you “share” it with third parties, you have no expectation of privacy in any communication.
We use technologies to conduct surveillance by plane, helicopter and drone. The Supreme Court has indicated that, as long as these devices are operating at a legal altitude (and, of course the government can grant an exception) then people have no expectation of privacy in what can be seen.
So, should it be easier, cheaper and more convenient for cops to do their jobs? Sometimes. But often what this really means is invading that delicate balance between social order and liberty.
That’s what makes the NSA programs so pernicious. It’s the fact that the balance was disrupted in secret. If people want their cops to be able to turn on webcams and cell phones secretly for any criminal offense, then let’s have a public hearing on it and put it to a vote. But don’t just do it secretly. Some things are intended to be hard. Invading privacy should be one of them.