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Wolves Protecting The Rights Of Sheep

It’s nice to hear that the Justice Department is reviewing its policies on the use of StingRay devices to accord “appropriate respect to privacy and civil liberties.”

I likewise applaud any renewed commitment by the fox and wolf communities to safeguard the civil liberties of chickens and sheep. But in all of these cases, I am skeptical of what good such a commitment will do.

StingRays and other cell site simulators have allowed federal and local law enforcement agencies to sweep up cellular data in a wide net by impersonating cellphone towers. The Wall Street Journal recently reported that the FBI has begun getting search warrants from judges to use the devices (something with which they generally did not bother previously) and that the Justice Department will reveal more about the government’s use of this technology (though, as blogger Scott Shackford observed, “any information at this point counts as ‘more.’”)

These changes may mark an improvement, but they are almost certainly not going to go far enough, since they depend on the Justice Department’s own motivation to change. The Journal reported that the department will move slowly toward increased transparency because it does not want to “give new ammunition to defense lawyers in prosecutions where warrants weren’t used.” As Nathan Freed Wessler of the American Civil Liberties Union pointed out, the administration cannot credibly argue that respecting civil liberties requires greater transparency on the one hand while it scrambles to protect agencies that have violated defendants’ rights in the past with the other.

Investigators and prosecutors want to have it both ways by easing criticism of StingRay deployments without actually changing how they use the devices. A law enforcement official told the Journal of the devices’ use, “We know it’s got to come out.” But the official went on to add, “We just want to acknowledge it carefully and slowly, so we don’t lose what is a very effective tool.”

Any improvements at the federal government’s executive branch also fail to address the many local agencies using and abusing these devices. While some state legislatures are attempting to tackle the secrecy around the devices’ use, it remains to be seen if the new federal commitment to safeguarding citizens’ privacy will extend to removing pressure on local police not to discuss the devices’ capabilities.

The Journal noted that “emergency” requests to for cell phone location information have gone up too, in part to circumvent the need for court approval. Phone companies seldom verify the nature of the supposed emergency, allowing law enforcement agencies a convenient workaround, even in cases where they would normally need a judge’s order.

In policy and practice, for the better part of the past 15 years, the U.S. government has trampled the privacy and other civil rights of Americans and others, first in the name of national security, and now merely in the interests of ordinary law enforcement. Some of it is well-intentioned; a lot of it is just lazy. We have not yet seen examples where the surveillance state has actually crossed the line into corruption and other abuse, but I suspect we eventually will. No tool has ever been invented that was not capable of misuse, and no tool capable of misuse has not ultimately been misused in practice.

Kudos to the Justice Department for at least acknowledging something needs to change. But while the executive branch’s legal beagles sniff around the topic, it is up to Congress and the courts to put the law enforcers back on their leash. Misuse of this technology will not stop until people who misuse it lose their jobs, their law licenses and maybe their freedom. Civil rights for the rest of us will not be safe until prosecutions are tossed out of court when they are linked to illegal surveillance.

The pending renewal of the Patriot Act would provide an excellent platform to have the debate and to produce the necessary legislation. Some members of Congress, on both sides of the aisle, seem poised to push for just that, criticizing the existing compromise measure for renewal as not going far enough to restrict National Security Agency snooping and other invasive programs. Unfortunately, amid the flurry of other disclosures that resulted from Edward Snowden’s leaks, and in the midst of a presidential campaign that already involves three Republican senators and one Democrat-aligned independent, it still seems unlikely that Congress will come together to take advantage of the opportunity.

So we are left with the administration’s vague, hedged promise that our liberties, as well as our persons, are safe on its watch. We chickens and sheep never did anything to hurt anyone; why should we worry?

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