FC: Privacy is another victim of the war on (some) drugs

[Declan McCullagh <declan () well com>]

http://www.wired.com/news/politics/0,1283,40532,00.html

   Privacy a Victim of the Drug War
   by Declan McCullagh (declan () wired com)

   2:00 a.m. Dec. 11, 2000 PST
   WASHINGTON -- When Indianapolis police stopped James Edmond and Joell
   Palmer at a drug checkpoint two years ago, the two men didn't merely
   get peeved.

   They got even. Edmond and Palmer filed a federal lawsuit claiming the
   drug-stop violated the Constitution's rule against unreasonable
   searches, and the Supreme Court recently agreed with them in a 6-3
   ruling.

   But privacy scholars caution that the decision is only a minor victory
   for the right to be let alone, saying that the 30-year old war on
   drugs has gradually but persistently eroded privacy rights offline and
   online.

   Government officials have repeatedly warned of "drug smugglers" and
   "money launderers" while asking for encryption export controls,
   increased wiretap powers, and the authority to conduct infrared scans
   of homes without search warrants. The FBI claims its controversial
   Carnivore system is a big help in narcotics investigations.

   "The Fourth Amendment has been virtually repealed by court decisions,
   most of which involve drug searches," says Steven Duke, a professor of
   law at Yale University.

   Duke is talking about the Fourth Amendment's prohibition against
   "unreasonable" searches and seizures -- a phrasing that permits courts
   to decide what kinds of searches are reasonable or not.

   Since the 1970s, the Supreme Court has largely sided with law
   enforcement's views, and the justices over time have handed police
   more surveillance and search authority.

   The high court has said, for instance, that a search based on an
   invalid warrant is perfectly OK as long as police acted in "good
   faith." In Oliver vs. U.S., the justices ruled that police can search
   a field next to a farmhouse for marijuana plants, even if "No
   Trespassing" signs are posted and the police trespass was a criminal
   act in itself.

   Duke believes the court's ruling in the drug-stop case is mildly
   encouraging, but not much more. "The Supreme Court's decision is a ray
   of hope," Duke says. "I would hope that the pendulum might swing a
   little in the opposite direction. But I don't think we'll get back
   much of the privacy we've lost. I'd be very surprised if we did."

   One case that the Supreme Court has agreed to review this term, Kyllo
   vs. United States, will determine whether police can scan homes from
   afar -- without a warrant -- using a thermal imaging gun. The practice
   is becoming increasingly common as cops use the devices to hunt for
   heat patterns that could indicate pot plants in someone's basement.

   The Ninth Circuit Court of Appeals had ruled that "we find no
   violation of the Fourth Amendment" when police used the Thermovision
   210 to examine Danny Lee Kyllo's home and convict him of one count of
   manufacturing marijuana.

   [...]

   Perhaps the most striking intersection between the drug war and
   privacy is in a rather mundane area of the law: wiretapping.

   In 1968, state officials conducted 174 wiretaps and the feds none,
   according to statistics from the Administrative Office of the U.S.
   Courts. By 1999, three decades after President Nixon kicked off the
   drug war, the number had ballooned to 1,350 wiretaps, with a breakdown
   of 749 state and 601 federal. Not one request was denied.

   By last year, the vast majority of the wiretaps had become
   narcotics-related: 978 of 1,350, according to government figures.

   "The expansion of federal wiretap activity and authority, which are
   two distinct concepts, is significant," says Marc Rotenberg, director
   of the Electronic Privacy Information Center. "It is clearly the case
   that the war on drugs has increased the number of wiretaps conducted
   and the number of circumstances where wiretaps can be conducted."

   [...]

**********

John Gilmore adds:

> The War on Drugs has certainly trashed the Fourth Amendment (with big
> help from the so-called Justice Department and some abuse-apologists
> on the Supreme Court), and has been a major reason for privacy
> intrusions.  The fundamental problem with outlawing consensual crimes
> is that none of the participants will report them.  To make them
> enforceable you need a societal mechanism for monitoring consensual
> behavior and reporting it to the police.  This is not conducive to
> privacy.
>
> I doubt that ALL privacy invasion has been engendered by the War on
> Drugs.  NSA's export controls were based on WW2 and Cold War
> experience.  The Internet has produced a major privacy problem by
> making previously hard-to-access or hard-to-correlate records readily
> available; search engines have been co-conspirators with the WWW
> inventors in building easy cross-indexes.  The abuse of census data in
> rounding up and imprisoning honest and unindicted US citizens who were
> Japanese-Americans was not motivated by the drug war.  Marketeers have
> not been idle either.
>
> The drug war-crime makes big problems for whatever lives or policies
> it touches, and it has certainly had a big negative impact on privacy.
> We would all have much more privacy rights if the drug war had never
> happened.  Restoring those rights after we end the drug war is going
> to be a 50-year project.
>
>         John




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