Curb electronic surveillance abuses

R. A. Hettinga rah at
Sat May 15 21:34:31 EDT 2004


Curb electronic surveillance abuses

As technological monitoring grows more prevalent, court supervision is crucial

 Bruce Schneier is chief technical officer of Counterpane Internet Security
Inc. in Mountain View, Calif. He is the author of "Beyond Fear: Thinking
Sensibly About Security in an Uncertain World."

 May 10, 2004

 Years ago, surveillance meant trench-coated detectives following people
down streets.

 Today's detectives are more likely to be sitting in front of a computer,
and the surveillance is electronic. It's cheaper, easier and safer. But
it's also much more prone to abuse. In the world of cheap and easy
surveillance, a warrant provides citizens with vital security against a
more powerful police.

 Warrants are guaranteed by the Fourth Amendment and are required before
the police can search your home or eavesdrop on your telephone calls. But
what other forms of search and surveillance are covered by warrants is
still unclear.

 An unusual and significant case recently heard in Nassau County's courts
dealt with one piece of the question: Is a warrant required before the
police can attach an electronic tracking device to someone's car?

 It has always been possible for the police to tail a suspect, and wireless
tracking is decades old. The only difference is that it's now much easier
and cheaper to use the technology.

 Surveillance will continue to become cheaper and easier - and less
intrusive. In the Nassau case, the police hid a tracking device on a car
used by a burglary suspect, Richard D. Lacey. After Lacey's arrest, his
lawyer sought to suppress evidence gathered by the tracking device on the
grounds that the police did not obtain a warrant authorizing use of the
device and that Lacey's privacy was violated.

 It was believed to be the first such challenge in New York State and one
of only a handful in the nation. A judge ruled Thursday that the police
should have obtained a warrant. But he declined to suppress the evidence -
saying the car belonged to Lacey's wife, not to him, and Lacey therefore
had no expectation of privacy.

 More and more, we are living in a society where we are all tracked
automatically all of the time.

 If the car used by Lacey had been outfitted with the OnStar system, he
could have been tracked through that. We can all be tracked by our cell
phones. E-ZPass tracks cars at tunnels and bridges. Security cameras record
us. Our purchases are tracked by banks and credit card companies, our
telephone calls by phone companies, our Internet surfing habits by Web site

 The Department of Justice claims that it needs these, and other, search
powers to combat terrorism. A provision slipped into an appropriations bill
allows the FBI to obtain personal financial information from banks,
insurance companies, travel agencies, real estate agents, stockbrokers, the
U.S. Postal Service, jewelry stores, casinos and car dealerships without a

 Starting this year, the U.S. government is photographing and
fingerprinting foreign visitors coming into this country from all but 27
other countries. CAPPS II (Computer Assisted Passenger Prescreening System)
will probe the backgrounds of all passengers boarding flights. Over New
Year's, the FBI collected the names of 260,000 people staying at Las Vegas
hotels. More and more, the "Big Brother is watching you" style of
surveillance is becoming a reality.

 Unfortunately, the debate often gets mischaracterized as a question about
how much privacy we need to give up in order to be secure. People ask:
"Should we use this new surveillance technology to catch terrorists and
criminals, or should we favor privacy and ban its use?"

 This is the wrong question. We know that new technology gives law
enforcement new search techniques, and makes existing techniques cheaper
and easier. We know that we are all safer when the police can use them. And
the Fourth Amendment already allows even the most intrusive searches: The
police can search your home and person.

 What we need are corresponding mechanisms to prevent abuse. This is the
proper question: "Should we allow law enforcement to use new technology
without any judicial oversight, or should we demand that they be overseen
and accountable?" And the Fourth Amendment already provides for this in its
requirement of a warrant.

 The search warrant - a technologically neutral legal requirement -
basically says that before the police open the mail, listen in on the phone
call or search the bit stream for key words, a "neutral and detached
magistrate" reviews the basis for the search and takes responsibility for
the outcome. The key is independent judicial oversight; the warrant process
is itself a security measure protecting us from abuse and making us more

 Much of the rhetoric on the "security" side of the debate cloaks one of
its real aims: increasing law enforcement powers by decreasing its
oversight and accountability. It's a very dangerous road to take, and one
that will make us all less secure. The more surveillance technologies that
require a warrant before use, the safer we all are.

R. A. Hettinga <mailto: rah at>
The Internet Bearer Underwriting Corporation <>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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