Pubdate: Mon, 11 Dec 2000
Source: Wired News (US Web)
Copyright: 2000 Wired Digital Inc.
Contact:  660 3rd Street, 4th Floor, San Francisco, CA 94107
Website: http://www.wired.com
Author: Declan McCullagh

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"The Fourth Amendment has been virtually repealed by court decisions, most 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:

* The Clinton administration has used the drug war to justify the FBI's 
Carnivore surveillance system. "Carnivore is, in essence, a special 
filtering tool that can gather the information authorized by court order, 
and only that information," Deputy Assistant Attorney General Kevin 
DiGregory said in July. "It permits law enforcement, for example, to gather 
only the e-mail addresses of those persons with whom (a) drug dealer is 
communicating."

* The House of Representatives last year rejected a bill to bolster 
financial privacy by a 299-129 vote. "Say no to the dope dealers," Rep. 
Maxine Waters (D-Calif.) said in a floor speech at the time.

* An anti-methamphetamine bill in Congress this year would have made it a 
crime to link to illegal drug-related websites and would hand police the 
power to enter homes to do secret searches.

* The conservative group Americans for Tax Reform in September sent a 
letter to Congress saying that the U.S. Customs Service needs the ability 
to open packages to search for drugs. The letter quoted from a popular 
marijuana seed website, which advises customers to avoid "UPS, Federal 
Express or any other overnight express service" and use the post office 
instead.

* The FBI last year blocked a Canadian firm, TMI Communications, from 
selling mobile telephone service in the United States. "The nightmare 
scenario for us is that word gets around in the drug-trafficking community 
that the thing to do if you are a Detroit drug trafficker or a New York one 
or a New Orleans one, for that matter, is to go to a telephone reseller in 
Toronto," a Justice Department official told Canada's National Post.

* British police this month suggested that the government record 
information on all telephone calls and e-mail messages for seven years. The 
stated justifications: "the use of computers by pedophiles to run child 
pornography rings, as well as terrorism and international drug trafficking."

Given this trend, Yale's Duke is hardly optimistic. "I'm surprised they 
haven't restricted their possession of anti-bug devices," he said. "But 
that's coming. The government will try to limit our ability to defend 
ourselves against invasions of privacy."
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