Curb Electronic Surveillance Abuses

As technological monitoring grows more prevalent, court supervision is crucial

Bruce Schneier
Newsday, May 10, 2004

Years ago, surveillance meant trench-coated detectives following people down streets.

Today's detectives are more likely to be sitting in front of a computer, and the surveillance is electronic. It's cheaper, easier and safer. But it's also much more prone to abuse. In the world of cheap and easy surveillance, a warrant provides citizens with vital security against a more powerful police.

Warrants are guaranteed by the Fourth Amendment and are required before the police can search your home or eavesdrop on your telephone calls. But what other forms of search and surveillance are covered by warrants is still unclear.

An unusual and significant case recently heard in Nassau County's courts dealt with one piece of the question: Is a warrant required before the police can attach an electronic tracking device to someone's car?

It has always been possible for the police to tail a suspect, and wireless tracking is decades old. The only difference is that it's now much easier and cheaper to use the technology.

Surveillance will continue to become cheaper and easier -- and less intrusive. In the Nassau case, the police hid a tracking device on a car used by a burglary suspect, Richard D. Lacey. After Lacey's arrest, his lawyer sought to suppress evidence gathered by the tracking device on the grounds that the police did not obtain a warrant authorizing use of the device and that Lacey's privacy was violated.

It was believed to be the first such challenge in New York State and one of only a handful in the nation. A judge ruled Thursday that the police should have obtained a warrant. But he declined to suppress the evidence - saying the car belonged to Lacey's wife, not to him, and Lacey therefore had no expectation of privacy.

More and more, we are living in a society where we are all tracked automatically all of the time.

If the car used by Lacey had been outfitted with the OnStar system, he could have been tracked through that. We can all be tracked by our cell phones. E-ZPass tracks cars at tunnels and bridges. Security cameras record us. Our purchases are tracked by banks and credit card companies, our telephone calls by phone companies, our Internet surfing habits by Web site operators.

The Department of Justice claims that it needs these, and other, search powers to combat terrorism. A provision slipped into an appropriations bill allows the FBI to obtain personal financial information from banks, insurance companies, travel agencies, real estate agents, stockbrokers, the U.S. Postal Service, jewelry stores, casinos and car dealerships without a warrant.

Starting this year, the U.S. government is photographing and fingerprinting foreign visitors coming into this country from all but 27 other countries. CAPPS II (Computer Assisted Passenger Prescreening System) will probe the backgrounds of all passengers boarding flights. Over New Year's, the FBI collected the names of 260,000 people staying at Las Vegas hotels. More and more, the "Big Brother is watching you" style of surveillance is becoming a reality.

Unfortunately, the debate often gets mischaracterized as a question about how much privacy we need to give up in order to be secure. People ask: "Should we use this new surveillance technology to catch terrorists and criminals, or should we favor privacy and ban its use?"

This is the wrong question. We know that new technology gives law enforcement new search techniques, and makes existing techniques cheaper and easier. We know that we are all safer when the police can use them. And the Fourth Amendment already allows even the most intrusive searches: The police can search your home and person.

What we need are corresponding mechanisms to prevent abuse. This is the proper question: "Should we allow law enforcement to use new technology without any judicial oversight, or should we demand that they be overseen and accountable?" And the Fourth Amendment already provides for this in its requirement of a warrant.

The search warrant - a technologically neutral legal requirement - basically says that before the police open the mail, listen in on the phone call or search the bit stream for key words, a "neutral and detached magistrate" reviews the basis for the search and takes responsibility for the outcome. The key is independent judicial oversight; the warrant process is itself a security measure protecting us from abuse and making us more secure.

Much of the rhetoric on the "security" side of the debate cloaks one of its real aims: increasing law enforcement powers by decreasing its oversight and accountability. It's a very dangerous road to take, and one that will make us all less secure. The more surveillance technologies that require a warrant before use, the safer we all are.

earlier essay: We Are All Security Customers
later essay: Microsoft's Actions Speak Louder Than Words
categories: Laws and Regulations, Privacy and Surveillance
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