Mr. Markey, Please Heed Mr. Finch, and Get that Surveillance Bill Back on Track

Friday, April 12, 2013

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.                                                       – Fourth Amendment, U.S. Constitution

“YOU are being watched!”
That’s what Mr. Finch, one of the main characters in the TV program “Person of Interest,” declares in the voiceover at the beginning of each episode.
 “Person of Interest” is fictional. Yet everyday experience seems to confirm those scary words, which may be why this show is so popular.
Go to a pharmacy for a prescription and a surveillance camera creates a little movie of your arrival, while filing your face in the store’s security system.
Make a withdrawal from an ATM and a camera inside the machine snaps your picture.
Drive through the EZ Pass lane and a computer taps your online account for the toll, and, incidentally, adds a piece of data to the permanent record of your travel kept by the state.
Damn right we’re being watched.
Let’s consider the vast amount of personal information contained in our cell phones.  For investigators from any branch of law enforcement, it’s a treasure to be had for the asking.
Last year, cell phone carriers reported to the U.S. Congress that they had responded to 1.3 million demands for subscriber information from law enforcement in 2011.  That’s an average of 3,561 requests a day.  Investigators were checking call records, text messages, cell tower utilization, and caller locations. 
The smart phone not equipped with a GPS chip is rare today.
When ruling that a warrant is required if an investigator wants cell phone location information, a judge once wrote that such data reveals “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, the synagogue or church, the gay bar, and on and on…”
Law enforcement agencies are now generally required to furnish cell phone carriers with a subpoena, court order or search warrant before obtaining subscriber information.  But if an agency deems a request to be an emergency, the carrier will often turn over the information without such legal formalities.
Concerned that investigators were conducting too many “digital dragnets,” U.S. Rep. Edward J. Markey, D-Malden, released last summer what’s called a “discussion draft” of a bill to codify new privacy protections for cell phone users, which is to say, virtually every American over the age of 12.
Markey’s Wireless Surveillance Act of 2012 would have mandated:
·         Regular disclosures from law enforcement authorities on the nature and volume of requests they make.
·         Signed, sworn statements from authorities after they had obtained information on an emergency basis, with those statements explaining the need for invoking emergency access.
·         A judge’s approval for the release of geo-tracking information -- and approvals could only be granted when there was probable cause that evidence of crimes would be found.
·         Restrictions on orders for cell tower “dumps,” which furnish information on a large group of mobile phone users at a particular time.
·         A narrower scope on all orders for cell tower dumps.

Unfortunately, the bill never got far during the last session of Congress. I’m hoping Markey will bring it back to life this year or next.  I’m also hoping that Markey, during his current campaign for the U.S. Senate, will start talking about the steady erosion of our privacy rights.
When I was a freshman in college studying the constitution as part of an American Government course, I never would have believed it if someone told me the day would come when men with badges and guns would go through my bags before I could get on the subway to Boston.
Now I meekly hand over my briefcase to an officer whenever a search team materializes at Oak Grove Station for the morning commute.  They are there, I guess, to discourage a terrorist from bringing a bomb onto a train, as has happened in Spain and Great Britain.  That’s a good thing.
But I never feel good about submitting to something we all would have considered an outrageous violation of our rights prior to September 11, 2001.
I’m ashamed that I lack the courage to protest this kind of security theater by walking out of the station and taking a cab to Boston.  The sorry state of the Fourth Amendment means less to me than getting to work on time and at the lowest cost.  

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