Is the CIA in your kitchen?

Tech­nol­ogy en­ables

The Washington Times Daily - - Opinion - By An­drew P. Napoli­tano

If the ques­tion in the head­line had been asked by a fic­tional char­ac­ter in a spy thriller, it might in­trigue you, but you wouldn’t imag­ine that it could be true in re­al­ity. If the Con­sti­tu­tion means what it says, you wouldn’t even con­sider the plau­si­bil­ity of an af­fir­ma­tive an­swer. Af­ter all, the Fourth Amend­ment to the Con­sti­tu­tion was writ­ten to pre­vent the gov­ern­ment from vi­o­lat­ing on a whim or a hunch or a ven­detta that uniquely Amer­i­can right: the right to be left alone.

Ev­ery­one wants, at some point in the day, at some places in the home, to be left alone. The colonists who fought the war of se­ces­sion from Great Bri­tain were no dif­fer­ent. But that war and the wish to keep the gov­ern­ment at bay had been height­ened by the Colo­nial ex­pe­ri­ences in­volved in the en­force­ment of the Stamp Act.

That law, which ap­plied to the Colonies but not to res­i­dents of Great Bri­tain, re­quired that gov­ern­ment stamps be pur­chased and printed on all le­gal, fi­nan­cial and even po­lit­i­cal doc­u­ments in the pos­ses­sion of ev­ery colonist. The en­force­ment of that law — which was done by Bri­tish sol­diers who en­tered pri­vate homes armed not only with guns but also with search war­rants that they had writ­ten for them­selves, which Par­lia­ment au­tho­rized them to do — was so dis­turb­ing and re­sulted in such anti-bri­tish po­lit­i­cal an­i­mos­ity that Par­lia­ment even­tu­ally re­scinded the act.

But the dam­age to Bri­tish rule had been done, and it was ir­repara­ble. Af­ter the Founders won the Rev­o­lu­tion and wrote the Con­sti­tu­tion and added the Bill of Rights, they rested in the as­sur­ance that only judges could is­sue search war­rants “par­tic­u­larly de­scrib­ing the place to be searched and the per­sons or things to be seized” and that judges could do so only if they found prob­a­ble cause of crim­i­nal be­hav­ior in the place the gov­ern­ment tar­geted.

The war on drugs re­gret­tably has weak­ened the in­tended pro­tec­tions of the Fourth Amend­ment, and the Pa­triot Act — which per­mits fed­eral agents to write their own search war­rants — has dealt it a se­ri­ous blow. That act, which has not yet been ruled upon by the Supreme Court, for­tu­nately has not yet an­i­mated the high court’s privacy ju­rispru­dence. Last year, the court in­val­i­dated the po­lice use of war­rant­less heat­seek­ing de­vices aimed at the home, and it prob­a­bly will soon in­val­i­date the war­rant­less use of GPS de­vices se­cretly planted by cops in cars.

Re­gret­tably, un­less the gov­ern­ment at­tempts to use the data it has gath­ered il­le­gally about a per­son, the per­son prob­a­bly will not be aware of the gov­ern­ment’s spy­ing on him and thus will not be in a po­si­tion to chal­lenge the spy­ing in a court. Re­ly­ing on the Pa­triot Act, fed­eral agents have writ­ten their own search war­rants just as the Bri­tish sol­diers did. They have done this more than 250,000 times since 2001. But the gov­ern­ment has rarely used any ev­i­dence from these war­rants in a crim­i­nal pros­e­cu­tion for fear that the tar­geted per­son would learn of the gov­ern­ment’s un­con­sti­tu­tional and ne­far­i­ous be­hav­ior and for fear that the act would be in­val­i­dated by fed­eral courts.

Now, back to the CIA in your kitchen. When Congress cre­ated the CIA in 1947, it ex­pressly pro­hib­ited the agency from spy­ing on Amer­i­cans in Amer­ica. Nev­er­the­less, it turns out that if your mi­crowave, bur­glar alarm or dish­washer is of very re­cent vin­tage, and if it is con­nected to your per­sonal com­puter, a CIA spy can tell when you are in the kitchen and when you are us­ing that de­vice. The per­son who re­vealed this last week­end also re­vealed that CIA soft­ware can learn your habits from all of this and then an­tic­i­pate them.

Act­ing “di­a­bol­i­cally” and hop­ing to “change fin­ger­prints and eye­balls” in its “world­wide mis­sion” to steal and keep se­crets, the CIA can then gut the Fourth Amend­ment dig­i­tally, with­out ever phys­i­cally en­ter­ing any­one’s home. We al­ready know that your Black­berry or iphone can tell a spy where you are and, when the bat­tery is con­nected, what you are say­ing. But spies in the kitchen? Can this be true?

Who re­vealed all this last week­end? None other than Gen. David H. Pe­traeus him­self, Pres­i­dent Obama’s new di­rec­tor of the CIA. I won­der whether he knows about the Fourth Amend­ment and how the Supreme Court has in­ter­preted it and that fed­eral laws pro­hibit his spies from do­ing their work in Amer­ica. I won­der whether he or the pres­i­dent even cares. Do you?


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