Privacy a Victim of the Drug War

WASHINGTON -- When Indianapolis police stopped James Edmond and Joell Palmer at a drug checkpoint two years ago, the two men didn't merely get peeved.

They got even. Edmond and Palmer filed a federal lawsuit claiming the drug-stop violated the Constitution's rule against unreasonable searches, and the Supreme Court recently agreed with them in a 6-3 ruling.

But privacy scholars caution that the decision is only a minor victory for the right to be let alone, saying that the 30-year old war on drugs has gradually but persistently eroded privacy rights offline and online.

Government officials have repeatedly warned of "drug smugglers" and "money launderers" while asking for encryption export controls, increased wiretap powers, and the authority to conduct infrared scans of homes without search warrants. The FBI claims its controversial Carnivore system is a big help in narcotics investigations.

"The Fourth Amendment has been virtually repealed by court decisions, most of which involve drug searches," says Steven Duke, a professor of law at Yale University.

Duke is talking about the Fourth Amendment's prohibition against "unreasonable" searches and seizures -- a phrasing that permits courts to decide what kinds of searches are reasonable or not.

Since the 1970s, the Supreme Court has largely sided with law enforcement's views, and the justices over time have handed police more surveillance and search authority.

The high court has said, for instance, that a search based on an invalid warrant is perfectly OK as long as police acted in "good faith." In Oliver vs. U.S., the justices ruled that police can search a field next to a farmhouse for marijuana plants, even if "No Trespassing" signs are posted and the police trespass was a criminal act in itself.

Duke believes the court's ruling in the drug-stop case is mildly encouraging, but not much more. "The Supreme Court's decision is a ray of hope," Duke says. "I would hope that the pendulum might swing a little in the opposite direction. But I don't think we'll get back much of the privacy we've lost. I'd be very surprised if we did."

One case that the Supreme Court has agreed to review this term, Kyllo vs. United States, will determine whether police can scan homes from afar -- without a warrant -- using a thermal imaging gun. The practice is becoming increasingly common as cops use the devices to hunt for heat patterns that could indicate pot plants in someone's basement.

The Ninth Circuit Court of Appeals had ruled that "we find no violation of the Fourth Amendment" when police used the Thermovision 210 to examine Danny Lee Kyllo's home and convict him of one count of "manufacturing" marijuana.

Defenders of the drug war say that their strategy has worked.

Barry McCaffrey, director of the White House Office of National Drug Control Policy, last month welcomed a survey saying that drug use among teens had declined. The White House claims that unapproved drug use costs the country 52,000 deaths and over $110 billion a year.

"This is very good news for our nation and our society," McCaffrey said at the time. "It means America's team effort to get the message out on the dangers of drugs is working."

In October, McCaffrey said that "support of sound law enforcement has caused drug-related crime to plummet."

The Justice Department says its surveillance procedures protect individual rights. "The procedures that we have in place have safeguards to protect the privacy of the individual," spokesman John Russell said. "We are aware of such criticism."

Perhaps the most striking intersection between the drug war and privacy is in a rather mundane area of the law: wiretapping.

In 1968, state officials conducted 174 wiretaps and the feds none, according to statistics from the Administrative Office of the U.S. Courts. By 1999, three decades after President Nixon kicked off the drug war, the number had ballooned to 1,350 wiretaps, with a breakdown of 749 state and 601 federal. Not one request was denied.

By last year, the vast majority of the wiretaps had become narcotics-related: 978 of 1,350, according to government figures.

"The expansion of federal wiretap activity and authority, which are two distinct concepts, is significant," says Marc Rotenberg, director of the Electronic Privacy Information Center. "It is clearly the case that the war on drugs has increased the number of wiretaps conducted and the number of circumstances where wiretaps can be conducted."

Law enforcement's concern in the early 1990s over being able to eavesdrop on digital phone systems prompted Congress to approve the Communications Assistance for Law Enforcement Act, which is currently snarled in federal court proceedings.

In April 1997, FBI Director Louis Freeh asked a Senate appropriations committee for $100 million to pay telephone companies to rewire their networks, as required under CALEA.

His reason: the war on drugs. "In 1995, state and local law enforcement accounted for 44 percent of the applications for wiretaps in criminal cases," Freeh said. "The loss of these capabilities would be especially devestating to the nation's efforts to combat drug trafficking."

The FBI's commitment to the drug war also buttressed the decade-long prohibition on posting encryption software on the Internet or shipping such products overseas, two restrictions that were not partially relaxed until about a year ago.

A former FBI field agent, Freeh has spent much of the his time in office complaining that the widespread availability of encryption will harm the drug war.

Freeh told a Senate panel in June 1997 that "uncrackable encryption will allow drug lords, terrorists and even violent gangs to communicate with impunity." He predicted that rescinding regulations would let crypto "proliferate to the point where any kidnapper or any drug dealer could purchase it off the shelf and connect up with a network which would make all of those activities covert."

Attorney General Janet Reno, at an October 1999 press conference, warned that the feds needed backdoors into encryption products. "As more and more drug traffickers and others engaged in organized crime and other activities, including terrorism, encrypt their communication, it is going to be more and more difficult for law enforcement," Reno said.

Other examples of drug-related surveillance: