There's little doubt law-enforcement agencies would be more effective if they could search people's houses and cars at whim. After all, you never know what you might turn up.
Enforcing the law would also be a lot easier if everyone had a microchip implanted in his or her body that sent out a unique signal. Whenever the police needed to find a suspect—or a kidnapping victim—they could simply home in on the beacon and find the person they were looking for.
These seem like fanciful, perhaps even comical, ideas—something out of a sci-fi movie, perhaps. But then, 20 years ago it would have seemed fanciful to suggest the police could record thousands of license plates an hour with special license-plate readers, and thereby gradually build a database tracking the whereabouts of millions of everyday citizens. Most of those citizens will never commit a crime. But some will, and having that data could help the police eliminate some possible suspects and focus on others. Did someone in a red Miata rob a liquor store at Broad and 39th on March 13? Let's see who was in that area during the time in question. Likewise, the government can use drones to provide it with constant surveillance from above.
This year the Virginia General Assembly passed bipartisan legislation restricting the use of such technology without a warrant and limiting how long law-enforcement agencies can retain such data. To the surprise and dismay of many, Gov. Terry McAuliffe made sweeping changes that, says sponsor Chap Petersen, take "a bill that was designed to protect people's civil liberties" and turns it into "one that basically trashes them."
The governor's amendments also managed to do the unlikely: They brought together his opponent in the gubernatorial race, former Republican Attorney General Ken Cuccinelli, and the head of the state ACLU, Claire Guthrie Gastañaga. A few days ago they wrote an op/ed for The Richmond Times-Dispatch taking on the governor and taking apart the arguments from the other side. "If easing crime solving is sufficient cause to violate our privacy," they wrote, "then there is no limit to what law enforcement would be allowed to do—collect our DNA at birth, engage in house to house warrantless searches, gather all of our cell phone records—all of these activities would make it easier to 'solve crimes.' "
Weighing in a few days later, three law-enforcement officials (a sheriff, a chief of police, and a commonwealth's attorney) argued in The Times-Dispatch that the governor's amendments struck the right balance. Among other things, they suggested the original bill could have limited the use of dashcams and body cameras, just as the country is reaching a consensus on the value of such devices in protecting the public from police abuse.
There's something to that. But the argument about striking the right balance has a diabolical logic. As Randolph Bell—president of the First Freedom Center, former U.S. ambassador at large and special envoy for Holocaust issues—put it in a rejoinder: "There will always be ways to make law enforcement more efficient. In fact, as technology advances, there will be more and more of them. The analytical framework through which you view the matter is, in your own words, 'compromise.' Constitutional protections for rights and liberties were intended to be absolute, 'inalienable.' If they are to be compromised on behalf of each technological advance, then they surely will disappear."
That's a point the commonwealth needs to let marinate a bit. The debate over license-plate readers and drones is necessary. So is the debate over body cameras on police officers. And so on. But each of those debates is largely isolated from the others. And although Petersen's original bill restricts the use of "surveillance technology," the discussion has largely ignored other technology over which there has been, so far, very little debate: the Stingray and Hailstorm systems that mimic cellphone towers, allowing officers in a squad car to vacuum up data about all the cellphones in a given radius. Chesterfield County, among other localities, has purchased such equipment.
And while Stingrays and Hailstorms allow government to collect a lot of information about you, that doesn't mean you can get much information about them. Often localities purchasing such devices sign nondisclosure agreements with the manufacturers pledging not to divulge information about the systems—even in response to Freedom of Information Act requests. It's not clear how a private contract can supersede a state statute, but the question is ripe for litigation.
Three years ago the Supreme Court ruled unanimously that tracking a person's movement without a warrant was an unconstitutional search. In that case, the search was made through a physical intrusion: placing a GPS device on the suspect's car. But tracking someone remotely is no different. Virginia law-enforcement agencies have been doing that without a warrant, which is bad enough. But they're also doing it without a reason—and that's an outrage.
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