When a Longview police detective seized the phone of a drug dealer in 2009 and conducted a warrantless search, the subsequent arrest sparked yet another legal battle over privacy rights in the digital age.
According to an AP story by Barbara LaBoe, the case against a man whom police lured into a drug arrest using the dealer’s phone was overturned by the State Supreme Court last Thursday. I admit to mixed feelings on this ruling.
When a search and seizure issue emerges during an investigation, obtaining a search warrant is a foolproof remedy. But police work, with its constant stream of emergency calls and backlogged cases all clamoring for attention, is a fast-paced game. The search warrant process is a lengthy, often frustrating process that can effectively stall an investigation. As other tasks start piling up, the temptation to cut corners is tangible.
Despite this, law enforcement professionals must resist this urge, and not simply because privacy is currently a hot topic. In fact, it is the cornerstone of our democracy.
That is especially true in light of the NSA scandal. Working behind the scenes with some of the biggest software, computer and network companies in the world to tap into phone calls and emails, the federal government’s clandestine spy agency has garnered notoriety for its intrusive practices both at home and abroad.
Hiding behind the Patriot Act, the NSA’s practices ignore the most basic requirement for intelligence gathering: A criminal nexus. In layman’s terms, federal law requires a connection to criminal activity before a government agency is permitted to compile domestic records.
This threshold was clearly met by the Longview case above (evidence which could, and should, have been used to obtain a search warrant). By contrast, the NSA could point to no direct link to criminal activity when it cast an immense net across the country’s telecommunications system.
Thus the question raised by millions of privacy advocates: Why is the NSA allowed to scoop up trillions of bytes of our private communiques simply in a blind quest for terrorist activity?
This point was raised by comedian Stephen Colbert, host of The Colbert Report, at a recent tech conference in San Francisco. Reported in a CNN article, Colbert’s controversial appearance on behalf of RSA Security, a network security company recently under contract to provide encryption software to the NSA, was the cause for protests by some of his fans.
His response: “Many of you see me as a champion of privacy,” said Colbert. “Which I know because I read your emails.”
Though Colbert rides a fine line between right wing ideology and in-your-face satire on his show, he was disarmingly candid (and funny, of course) in his rejection of NSA’s eavesdropping program.
“We can trust the NSA because without a doubt it is history’s most powerful, pervasive, sophisticated surveillance agency ever to be totally owned by a 29-year-old with a thumb drive,” he quipped, referring to hacker Edward Snowden. He went on to disparage Snowden for his theft and flight to Russia.
Colbert’s point is valid. Not only has the NSA, and by association, the federal government, ignored its own laws on intelligence gathering, but its inflammatory collection of private data is currently being handed out, piecemeal, to anyone with access to a computer.
With respect to privacy, there is a huge chasm separating the Longview case and the NSA wiretapping scandal. That is why I must grudgingly agree with the State Supreme Court’s decision protecting the privacy of text messages. If the public’s right to privacy is not respected by those sworn to protect them, then who will?
We must continue driving this point home as technology insinuates itself further into our lives. Otherwise, governments won’t be the only entity scouring every byte of our digital lives in a blind quest to find…something.