Even if the cops wave you to the side amid flashing lights, and functionaries come out to ask you for saliva or blood samples, and keep asking after you say no, it’s all “voluntary.” Right? Right. “A recent Georgia appellate decision reversed a trial court that held the lights atop a police car were merely an invitation to chat rather than a command to stop, the refusal of which tended to produce death by a hail of gunfire.” [Amy Alkon, Scott Greenfield, earlier here, here, and, on "no-refusal" blood-draw DUI checkpoints, here]
An extra reason to be cautious in your holiday driving:
If you live in one of 30 cities, you may find yourself pulled over soon at roadblocks where police and federal contractors ask to swab your cheeks, take your blood or give a breath sample to see if you’re on drugs without any probable cause that you’ve committed a crime. Such an exciting time for your civil liberties!
[Jalopnik via @ProfBainbridge] On the separate issue of “no-refusal” blood draws at DUI stops in states like Texas and Tennessee, see Sept. 30.
Yes, “copyright infringement”:
Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the [National Security Agency's] vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say. …
“It’s a very common complaint about N.S.A.,” said Timothy H. Edgar, a former senior intelligence official at the White House and at the office of the director of national intelligence. “They collect all this information, but it’s difficult for the other agencies to get access to what they want.”
“The other agencies feel they should be bigger players,” said Mr. Edgar, who heard many of the disputes before leaving government this year to become a visiting fellow at Brown University. “They view the N.S.A. — incorrectly, I think — as this big pot of data that they could go get if they were just able to pry it out of them.”
Rep. Justin Amash (R-Mich.) speaks out on NSA bulk surveillance in this new Cato video with Caleb Brown. Earlier on surveillance here, here, and here; earlier on panopticons here. For the use of “money laundering” laws to pursue financial flows having nothing to do with terrorism or drug smuggling, see our reports here, here, here, here, etc.
U.K.: “Dame Stella Rimington, the former head of MI5, has warned that the fear of terrorism is being exploited by the Government to erode civil liberties and risks creating a police state.” [Telegraph]
At Utah’s Deseret News, reporter Eric Schulzke writes on how “the U.S. Bill of Rights remains a work in progress 222 years after it became law — a continuing struggle between government claims for order and security, and the individual’s interest in clarity and freedom. This past year, the struggle played out in numerous areas, including free speech and search and seizure rules, to touch just a few.” He quotes me on the hope of bright-line rules establishing the public’s right to take pictures of law enforcement (recent Hawthorne, Calif. cause celebre here), on the need to focus on state and local police use of DNA databases before the inevitable abuses establish themselves, and on how four significant Fourth Amendment cases made it to the Supreme Court this year: “‘Here we are 200 years later, and a lot of big, interesting questions still haven’t been settled on what the Bill of Rights says about search and seizures,’ Olson said.” A sidebar reviews the year in civil liberties controversies.
“…for evidence in murder, divorce cases.” [Bob Sullivan, NBC News]
Don’t just think vacuum cleaners, think J. Edgar Hoover. [Gene Healy, Washington Examiner] In fact there’s a long history of misuse of ostensibly secure law-enforcement files and databases [1993 GAO report; Robert F. Weir, ed., book on Stored Tissue Samples; unlawful private-investigator access to the National Crime Information Center (NCIC), the FBI's electronic criminal-records database] Once DNA databases are open to varied queries from multiple law enforcement agencies, can we presume them immune from abuse? Even the NSA, whose level of professionalism is presumedly far higher than that of local law enforcement agencies, is no stranger to stories about gratuitous and offensive abuse of privacy. And, writes Jim Harper, the evidence is that the NSA has gathered telecom metadata on a dragnet basis (as distinct from individualized suspicion) not merely for data mining, but to assist in investigations of persons who may happen to come under suspicion in the future, quite a different rationale.
More: “Was a Telecom CEO Sent to Prison Because He Resisted NSA?” [Alexander Cohen, Atlas, on Joseph Nacchio's prosecution on insider trading charges after QWest refused to participate in surveillance] For many other telecoms, at any rate, fear of regulatory muscle will turn them into eager cooperators [Ira Stoll on Verizon] Related: 2007.
Did you know the IRS has asserted, and apparently exercised, a right to read your emails without a warrant? I didn’t, until now. [ACLU; more from ProPublica]
Regarding yesterday’s revelation that the National Security Agency has been collecting the phone records of millions of Americans, Glenn Greenwald at the U.K. Guardian has the original scoop, quoting my Cato colleague Julian Sanchez about one of the most salient aspects of the program: it scoops up everyone’s phone data in a dragnet, rather than proceeding against some narrower category of phone records for which there is individualized suspicion. More coverage: Guardian sidebar on what telephone metadata can reveal; Timothy Lee/Washington Post; Orin Kerr/Volokh (“This is potentially a huge story. If the NSA is getting all call records from every domestic call from Verizon, then that’s a very big deal”); Adam Serwer/MSNBC; Electronic Frontier Foundation (“There is no indication that this order to Verizon was unique or novel. It is very likely that business records orders like this exist for every major American telecommunication company, meaning that, if you make calls in the United States, the NSA has those records. And this has been going on for at least 7 years, and probably longer.”) And from a slightly different perspective, Joshua Foust, who cites Congress for having repeatedly voted to give the Executive ultra-broad surveillance powers, and writes: “The information the NSA is collecting is metadata, not content (like a wiretap), and not account names. Uncovering personally identifiable information would require separate warrants to do so. This was a pattern analysis, not really mass surveillance as we traditionally understand it.”
P.S. On the IRS’s claims of a right to read email without a warrant, Justin Horton: “Not limited to IRS; this is basically government’s position and only 6th Circuit seems to disagree.”
Yesterday the Supreme Court decided it was okay to require arrested persons to submit to DNA testing meant to match them to unsolved crimes. [Maryland v. King; Robert Kaiser, Washington Post; Nina Totenberg, NPR] In an impassioned dissent joined by liberals Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Antonin Scalia warned that an important civil liberties line is being crossed as the Court now approves suspicion-less searches of persons at a stage at which the law presumes them innocent, without any primary motivation except to gather evidence of unrelated crime.
I’ve got an article in The Daily Beast this morning on the Scalia dissent and its warnings that lawmakers may soon embrace a genetic surveillance state in the name of security. Excerpt:
In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one-third of Americans will be arrested for some offense by age 23.”) Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?
With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be-all and end-all of criminal process:
“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. … I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”
More: I’ve got this related piece in Newsweek on the Justices’ shifting Fourth Amendment alignments. Thanks to Glenn Reynolds for the Instalanche. And other commentaries from Daniel Fisher, Lowering the Bar (on the Jeremy Bentham angle; Scalia’s dissent mentions Bentham twice; Scott Greenfield; Julian Sanchez; Jacob Sullum). And Mississippi has just announced plans to match offspring of underage mothers to responsible fathers through DNA database checks based on umbilical cord blood. [NPR]
If this account from DNALounge is to be believed, San Francisco police are highly eager for bar owners to install surveillance cameras to monitor everything customers do, and to commit to hand over the resulting footage to police without a warrant. Raise objections, and (according to the report) you might find the requirement being added as a condition to your permit. More: SFBay.ca.
The couple say they believe they were raided because of their use of an indoor gardening setup to raise six tomato, melon and squash plants in their basement. “A drug-sniffing dog was brought in to help, but deputies ultimately left after providing a receipt stating, ‘No items taken.’” [Heather Hollingsworth, AP]