Peter Callaghan: Digital dragnets are stalking privacy rights, as well as crime

peter.callaghan@thenewstribune.comJune 26, 2014 

No, I don’t feel safer.

I know we’re all supposed to have a growing sense of security whenever law enforcement announces the adoption of new technology to hunt bad guys. If the cops can find criminals and even prevent them from committing additional crimes, shouldn’t they use every tool possible?

The latest is the use of license-plate scanners in police cars to find stolen cars. Tacoma cops are among several in the state to use the equipment to look at every plate they pass during a patrol and compare it to state and national databases.

Who wouldn’t be for that? OK, except for car thieves. And who would object to having DNA collected whenever someone is arrested as some legislators have proposed? Current law says such invasive collections can occur only after a jury or judge convicts someone of serious crimes. But police agencies cite anecdotes in which access to DNA at arrest could have prevented the release of someone who then committed horrific crimes.

Even those red-light cameras and speed cameras that are supposed to protect us from serious accidents collect information that some in law enforcement want broader access to. They usually cite a 2012 murder case in Seattle where photos from red-light cameras might have caught the license plate of a killer.

Legislators love anecdotes, often pretending they are a substitute for data.

Stolen cars aren’t the only targets. Tacoma dispatches police cars with license plate scanners to the scenes of major crimes. A digital dragnet collects the license plates of everyone who happens to be in the area. Detectives use motor vehicle databases to identify every person — or at least every car — that was nearby.

Probable cause? It isn’t applied. If you were there — even well after a crime occurred — you are caught up in what essentially is an electronic version of stop-and-frisk.

Again, who could oppose such tools? The decreasing number of civil libertarians in the Legislature do.

When police and prosecutors have asked for more access to the results of digital dragnets, those lawmakers on both the left and the right have been able to block erosions of privacy rights. It might be a losing battle, however. Citing concepts about privacy and warning of slippery slopes toward more government surveillance seems cavalier when it follows pleas from crime victims and their family members.

Here’s what too often happens. A new technology is introduced and supporters agree to restrictions to protect privacy rights and get it approved by lawmakers. Like when privacy advocates raised concerns about widespread access to license plate photos by law enforcement, backers of the technology — including the companies that market them to cities — agreed to restrict their use.

Later, though, they return armed with anecdotes to show that the protections are too constricting and should be loosened. In the last attempt to get on-arrest DNA sampling approved, backers agreed to judicial review at arraignment to ensure that the arrested person has a high likelihood of conviction. They also agreed to set up a system so those acquitted or not charged could petition to have their DNA removed from those databases.

It didn’t work, but backers have pledged to keep trying.

Some, even those outside law enforcement, might think catching a criminal — even rarely — is worth an incremental loss of privacy. But what about catching people with unpaid parking tickets? Tacoma will use similar technology to scan every car downtown to see how long they’ve been in a space or whether they are on a list of those with delinquent fines.

Is that legal? Washington residents have greater privacy rights than those contained in the 4th Amendment to the U.S. Constitution and Washington’s Supreme Court has applied it to resist erosions of protections that have come from recent U.S. Supreme Court rulings.

Here’s the scarier question: Do we know if state and local governments are honoring their commitments under current law not to abuse the information? Even nonskeptics should know by now that if government abuse is possible, government abuse is likely. Who is watching the watchers?

Peter Callaghan: 253-597-8657 @CallaghanPeter

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