For me, it depends on how invasive it is, and how specific and personal it is, and what is done with it.
Four cases, all of them fresh:
1. With a judge’s approval, the National Security Agency collects records of all telephone calls of Verizon Communications – from whom, to whom, when and how long – but not the calls themselves. It uses a computer program to pull out clusters of calls that look like a terrorist network. With these it can ask for a warrant to listen in. (Seattle Times story, June 6.)
2. The NSA taps directly into the central servers of the Internet service providers owned by Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, You Tube and Apple, extracting documents, audio, video and connection logs. (Seattle Times story, June 6.)
3. The state of Maryland orders that all persons arrested for a serious crime have a swab taken from the inside of the cheek, and their DNA matched against a database of unsolved crimes. (U.S. Supreme Court case: Maryland v. King.)
4. Police in Lakewood, Pierce County, routinely check motel registries against outstanding arrest warrants. (Washington Supreme Court case: State v. Smith.)
In each of these cases police, or people similar to police, are looking through information for law violators. They are not really investigating; they are patrolling. The question is whether they are invading someone’s (or everyone’s) constitutional rights, or they are merely patrolling with modern technology.
To me, No. 2 is the easy question. They’re reading your mail—or taking it, anyway. When the Fourth Amendment says, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures…” this is one of the things it means. The government should not be allowed to routinely read the people’s mail.
No. 1 is different. They’re not listening to your call. They’re taking the log—like the log on a phone bill of long-distance calls—and putting it in with everyone else’s logs. A computer program looks through this mountain of call logs for the call pattern of a terrorist. If it finds what looks like a terrorist, the NSA can go to a judge and ask for a warrant to listen in on his calls. This doesn’t bother me.
I have a colleague who is disturbed by this.
“Then you’re OK with being stopped and searched on the road, at random?” he says.
“No,” I said. “This is different. I’m not stopped. I’m not inconvenienced, and I’m not searched.”
“That you’re not inconvenienced makes it worse,” he says.
No, I think. It makes it better.
“Would you want the Post Office keeping a list of all the people who sent letters to you, and to all the people you sent letters to?”
“No,” I say.
I think about my answer. I wouldn’t like it if it was my local post office, where they know me. But if it was a Post Office computer in Washington, D.C., and every piece of mail in the country was in it, and all they knew was the sender and the addressee, well… It would depend on what they did with it.
I don’t want to hear the slippery-slope argument: “If they can do this, then they can do that, and that and THAT.” I’m not listening to that argument, because it is lazy. We live our lives on the slippery slope.
On to Case No. 3: Maryland v. King. Here the state of Maryland arrested King for assault in April 2009, and took a swab from inside his cheek—in his mouth—for DNA, which it did in all such cases. Four months later it matched up his DNA with an unsolved rape case from 2003—and King was convicted of rape.
Was the cheek swab an illegal search? Maryland’s Supreme Court said it was. The U.S. Supreme Court ruled 5-4 that it was not. Justice Anthony Kennedy, siding with the court’s conservatives, said it was really no different from taking a mug shot or fingerprints.
Justice Antonin Scalia wrote the dissent. “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches,” he wrote.
To Scalia, the difference between a cheek swab and a fingerprint is that the cheek swab is inside the body. It’s invasive.
Yes, the majority said, but it’s not very invasive. And I have to agree that it is not as invasive as some other things I can think of.
What if it was a snippet of hair?
It seems to me that if they can fingerprint you, they can cheek-swab you. And Maryland did catch a rapist.
Case No. 4: State v. Smith. Here a Lakewood cop went around the motels in town, checking the names in the register against the names in the computer of outstanding arrest warrants. A name popped up. The officer knocked on Smith’s motel door, Smith opened it, the officer arrested him, and looked inside. He saw a woman who was bloodied and limping, and went in to help. It turned out that Smith had bound and beaten this woman and had raped her 12-year-old daughter, who was also in the room. Smith was convicted of rape.
The court later ruled that motel-register checks were illegal under the Washington Constitution, Art. 1, Sect. 7, which says, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The question was, did the court have to let the rapist go?
Here, a note of politics. Unlike the justices of the U.S. Supreme Court, the justices of the Washington Supreme Court are elected. Any justice who would let this rapist go could forget winning another term. All of the justices sided with the police except for Tom Chambers, who has retired. (Also note that five of the nine justices are women.)
The Court said it was illegal for the police to demand the motel register. But once the officer saw the bloodied woman, it was legal to help her and her daughter, on the “save life” exception to the search doctrine. Bottom line: the rapist stays in prison but he would not be discovered next time around.
So… consider cases 1, 3 and 4. Case 1 is about a quasi-police organization trolling through a mass of phone logs for terrorist connections. Case 3 is about police taking a swab inside the mouths of arrestees and checking the DNA against unsolved cases. Case 4 is about police checking a motel register against a list of outstanding warrants.
I don’t want police disturbing my private affairs or invading my home. But I do want them to have enough tools to do their job of patrolling the public spaces, and from there eyeballing private spaces in search of general lawbreaking. Telephone metadata? If they abuse their access to it, take it away. If they use it the way they say, I’m OK with it.
Checking motel registers against outstanding warrants does not bother me. What bad thing could come of it? (I remember the French police official checking hotel cards in the movie, “The Jackal.” That’s how they nailed the would-be assassin.)
The cheek swab. Well, you’ve been arrested, handcuffed, fingerprinted, photographed and searched. Is a cheek swab an imposition that would have outraged our revolutionary ancestors, as Justice Scalia writes? If Scalia is right, and maybe he is, the swab could still be taken after the arrestee is convicted. (All states do this, he says.) But checking DNA at some point helps nail the guilty and protect the innocent. DNA is how they caught the Green River Killer. I’m for using it.