Let us make one thing clear: law enforcement does not, nor will it ever, respect an individual’s right to privacy. The police in this country, and throughout the world, believe they have an inherent right—one rooted in the need to protect the existing government—to pry into, and rifle about, the inner most privacy of the individual’s personal life. Thus, the continual tension between privacy and security.
The Framers of our constitution created the Fourth Amendment to protect the individual from unchecked police power. The Supreme Court, and too many of the lower federal courts, have virtually gutted this one amendment most designed to protect the individual. Several decades ago, famed Supreme Court Justice William O. Douglas issued a warning about the inherent danger of this constitutional trek.
Justice Douglas Warned of Police Power
“If the individual is no longer to be sovereign, if the police can pick him whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.”
Tech Giant Apple Joins Fray
This debate was recently ignited in the high-profile case of the FBI trying to force Apple to become an agent of law enforcement by forcing the technology giant to unlock an IPhone used by the gunmen in the San Bernardino terror attacks.
In the Apple case, a federal court used an 18th century statute known as the All Writs Act to give the FBI all the authorization the agency needed to compel Apple to cooperate with law enforcement.
Hackers Did What FBI Couldn’t
Fortunately, the nation’s top law enforcement agency backed off in the San Bernardino case by paying private hackers a reported $1 million to unlock the terrorist IPhone. An ensuing search of the phone revealed nothing beneficial to the FBI’s terror investigation.
Although it had the backing of a U.S. Magistrate in the San Bernardino case, the FBI apparently decided the adverse publicity associated with the case cost more than it was willing to pay. Some privacy advocates hailed it as a victory; that the FBI had backed down, not willing to engage in open warfare with Apple.
Not so fast.
FBI Forcing Drug Suspect to Unlock Phone
Months before the FBI skirmished with Apple over the San Bernardino IPhone, the agency was trying to get a federal court to compel the company to unlock the phone of a meth dealer who pled guilty to the drug charges but who said he could not remember the password to his phone.
The case is now before the Second Circuit of Appeals. Apple is resisting efforts to unlock the drug dealer’s phone but not as strenuously as it did the terrorist phone.
Jill Bronfman, director of the Privacy and Technology Project at University of California Hastings College of Law explains the difference.
“If you want to do a balancing test and you’ve got terrorism on one side of the scale, that’s a very heavy weight … We’ll see how the request is balanced when we have drugs on the other side.”
This digital war recently shifted from terrorism and drugs to child pornography case in Philadelphia.
Child Pornography Investigators Seeks Compelled Cooperation to Unlock Computer
In a May 5, 2016 piece, The New York Times reported about a case in Philadelphia in which a former law enforcement officer has refused to unlock his computer in cooperation with a law enforcement investigation that he possessed child pornography.
As the drug dealer said about his IPhone, the former police sergeant is saying he forgot the password that would turn off FileVault, a feature of Macs that encrypts hard drives when the user logs off.
Suspect Held for Eight Months to Force Revelation of Password
After the police sergeant refused federal prosecutors’ request that he unlock the files they suspect contain child pornography, he was placed in federal detention where he has remained for eight months without any charges being filed against him.
The Times reported that his public defender, Keith M. Donoghue, told a federal court in a recent motion that, “not only is he presently held without charges, but he has never in his life been charged with a crime.”
The author of the Times piece, Christine Hauser, wrote:
“Law enforcement agencies have typically made encryption an issue in high-profile cases involving terrorism or child pornography. In March, President Obama said the United States had already accepted that law enforcement can ‘rifle through your underwear’ in search for suspected predators, so there was no need to treat a person’s digital information differently.”
Privacy Issues Affecting People All Over Country
Mark Rumold, a senior lawyer with the Electronic Frontier Foundation, a nonprofit group that deals with civil liberties in digital issues, told the Times:
“It is a combination of a growing awareness and use of technologies that are privacy protected. I don’t think it is a stretch to say these types of issues are affecting people all over the country in everyday life.”
The very technology that has made all our lives more comfortable and convenient has now made us the subjects of Big Brother government controls. Our homes, the very bedrooms where our underwear are kept, are not free of law enforcement surveillance. All the police need is suspicion—and the courts are more frequently not even requiring that that suspicion be “reasonable”—that you have engaged in some sort of wrongdoing and they can invade the privacy of all your electronic devices where you have stored virtually your entire life.
This war is not about terrorism, drugs, or child pornography. It’s about law enforcement’s need, one supported by the highest levels of power, including the president, to monitor our personal lives to make sure they fall in line with what he government believes is right and wrong.
Police State Receiving Court Blessing
As Rutherford Institute attorney and author John W. Whitehead said in a 2014 piece:
“ … In the police state being erected around us, the police and other government agents can probe, poke, pinch, laser, search, seize, strip and generally manhandled anyone they see fit in almost any circumstance, all with the general blessing of the courts.
“Whether it’s police officers breaking through people’s front doors and shooting them in their homes or strip searching innocent motorists on the side of the road, these instances of abuse are continually validated by a judicial system that bestows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.
“These are the hallmarks of an emerging American police state where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies, rather than citizens.”
Beware of Police State Fueled by Fear and Hate
That’s where we are now. Virtually at will, the police can invade our homes, automobiles, and our bodies with court approval. The president says they can “rifle through our underwear” so why not our electronic devices. That certainly seems to be the thinking of many people. The current presidential campaign has invoked images of Mussolini-like fascism, especially the continual fear and hate mongering. With stated threats of “terrorists,” “predators,” and the next “other,” the police are now becoming more inclined to engage in all-encompassing “citizen profiling” to protect the interests of power, and we are complying with our acquiescence.
Everyone, everything is now suspect.