Thwart­ing do­mes­tic spies

The Washington Times Weekly - - Editorials -

Rights once lost are usu­ally gone for good. Gov­ern­ments never ad­mit mis­takes, and few judges are courageous enough to set things right. So it’s re­fresh­ing that the 3rd U.S. Cir­cuit Court of Ap­peals in Philadel­phia last week came to the em­i­nently rea­son­able con­clu­sion that the po­lice must get a war­rant be­fore putting an elec­tronic track­ing de­vice on some­one’s car.

This shouldn’t be con­tro­ver­sial, but it is, and it has been a grow­ing prob­lem. The march of tech­nol­ogy has cre­ated pow­er­ful tools that gov­ern­ments can use and abuse, to watch, track and lis­ten to ev­ery­thing ev­ery­one does. Po­lice agen­cies ea­gerly pur­chase the lat­est gad­gets with­out much thought to their duty to fol­low the Con­sti­tu­tion; specif­i­cally, the Fourth Amend­ment, which de­crees that “per­sons, houses, pa­pers, and ef­fects” shall be se­cure from searches with­out a war­rant based on prob­a­ble cause. A GPS de­vice to track some­one log­i­cally falls neatly into this cat­e­gory.

Three brothers were sus­pected of com­mit­ting a string of drug­store bur­glar­ies in Penn­syl­va­nia, Mary­land and New Jersey, and the po­lice wanted to at­tach a mon­i­tor­ing de­vice to their car. This is where they were re­quired to show to a judge the ev­i­dence im­pli­cat­ing th­ese men. This is not a heavy bur­den. Judges can ques­tion the of­fi­cers to sat­isfy the court that a war­rant is jus­ti­fied, and judges rarely say no. Nev­er­the­less, the FBI didn’t take the trou­ble to make a proper ap­pli­ca­tion for a war­rant. In­stead, they con­sulted the U.S. At­tor­ney’s Of­fice and then mounted a snoop­ing de­vice on the sus­pects’ car.

The GPS tracker, as the po­lice sus­pected, linked the brothers to a Rite Aid phar­macy that had been robbed. The lo­ca­tion in­for­ma­tion pro­vided by the GPS unit made it easy to stop and search the brothers’ car and re­cover the stolen items. Be­cause the cops cut con­sti­tu­tional cor­ners, the de­fen­dants suc­cess­fully ar­gued in a lower court that the ev­i­dence was not ad­mis­si­ble.

The ap­pel­late court agreed that the po­lice con­duct was “highly dis­con­cert­ing.” The three-judge panel re­lied on the Supreme Court’s re­cent de­ter­mi­na­tion that GPS mon­i­tor­ing was a form of search, though the high court failed to clar­ify whether such a search could be made with­out a war­rant. “A GPS search,” the ap­peals court ruled, “ex­tends the po­lice in­tru­sion well past the time it would nor­mally take of­fi­cers to en­ter a tar­get ve­hi­cle and lo­cate, ex­tract, or ex­am­ine the then-ex­ist­ing ev­i­dence.”

The Amer­i­can Civil Lib­er­ties Union filed a friend of the court brief ar­gu­ing the need to up­hold the war­rant re­quire­ment. “Th­ese pro­tec­tions are im­por­tant,” says the ACLU lawyer, Cather­ine Crump, “be­cause where peo­ple go re­veals a great deal about them, from who their friends are, where they visit the doc­tor and where they choose to wor­ship.”

It’s too easy for law en­force­ment agen­cies to spy on or­di­nary Amer­i­cans. With tax­payer cash for new de­vices and gad­gets, they have ev­ery­thing needed to mon­i­tor, track and eaves­drop. This is an au­thor­ity that must be bal­anced and re­strained by ju­di­cial over­sight.

It’s re­as­sur­ing to see a court will­ing to say “enough,” but there’s a way to go be­fore Amer­i­cans can be se­cure in their “per­sons, houses, pa­pers, and ef­fects” — and emails. The pub­lic must in­sist on rolling back the sur­veil­lance state so care­fully crafted in se­cret for our “pro­tec­tion.”

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