A small win against law enforcement's perpetual surveillance machine
A police department in Washington state trained a webcam on a target's house for six weeks. The device recorded the home all day, every day, and its feed was backed up to an external hard drive. Police eventually saw the target firing a gun for target practice, and because he was suspected of living in the United States illegally, that was enough for them to raid his home.
The only problem: the department never got a warrant to conduct the surveillance.
That failure to obtain a warrant led a federal judge to dismiss the evidence -- four weapons and five grams of methamphetamine -- against the target. In his written statement on the case, Judge Edward Shea disagrees with the Justice Department's argument that video surveillance is no different from an officer conducting that surveillance in person, except it's more efficient.
"The American people have a reasonable expectation of privacy in the activities occurring in and around the front yard of their homes particularly where the home is located in a very rural, isolated setting," Shea wrote. "This reasonable expectation of privacy prohibits the warrantless, continuous, and covert recording of Mr. Vargas’ front yard for six weeks. Mr. Vargas’ motion to suppress the evidence obtained as a result of the video feed is granted."
Shea's decision is a victory for privacy advocates, and it helps contest the idea that police are legally permitted to collect information without first obtaining a warrant. Given the number of programs which involve law enforcement collecting data about countless people without ever seeking permission to do so, or even being honest about that collection, that's welcome news.
Consider license-plate readers that snap images of cars driving around town, sitting in a lot, or cruising down the highway and upload those photographs to a database shared among police departments around the country. The Contently Foundation reported earlier this month that these readers have gone from being used by 20 percent of police departments in 2007 to 71 percent in 2012. Yet their effectiveness hasn't been studied, and their use has little oversight.
As Chris Francescani, the author of the Contently Foundation's report, writes:
The use of LPRs is nearly as invasive as the National Security Agency’s surveillance programs and the information far more vulnerable to abuse, according to privacy advocates and experts in LPR technology. While NSA data is highly restricted, scans of license plates, collected at police departments across the country, are highly susceptible to unauthorized access and official misuse.Then there's the mystery surrounding "dirtboxes," which collect cellphone information by pretending to be a nearby cell tower, and their use. Those devices are shrouded in so much secrecy that a group of senators asked the Department of Homeland Security to answer some questions about the devices amid concerns that their use violates the Fourth Amendment.
These programs and others like them are the product of the judicial system failing to keep pace with technical evolution. The police are ready to take advantage of new technologies, but the courts aren't sure how those technologies should be used, and legislators haven't bothered to update their laws to handle all these changes despite their ramifications for citizen rights.
Even the judges meant to interpret existing laws have conflicting ideas over how police officers should handle new technologies. The battle to determine when police can search a smartphone -- before or after obtaining a warrant -- is a prime example. The Supreme Court said in June a warrant is required; a Circuit Court judge argued the opposite in a ruling issued in October.
The result is a system which allows the police to purchase new equipment, use existing tools in new ways, or take advantage of legal loopholes to create a perpetual surveillance machine from which even law-abiding citizens are unable to escape. Police used to gather evidence to prove someone was guilty; now they're collecting information to prove that no-one is really innocent.
[illustration by Brad Jonas]