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

[Declan McCullagh]

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

    Privacy a Victim of the Drug War
    by Declan McCullagh (declan at 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    "The Fourth Amendment has been virtually repealed by court decisions,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