Who Watches The Watchers Watching You?

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You are being watched.

Cameras capture license plates. The National Security Agency (NSA) listens to phone calls. Police are gathering information based on religion. That’s why many fear privacy rights are being trampled in the government’s search for criminals.

The world changed on September 11, 2001. Those changes meant privacy, as it was known then, ended. A War on Terror led to the Patriot Act that gave the government an array of powers. Then technology allowed government to invade the privacy of thousands while searching for a suspicious few.

The word privacy is not in the U.S. Constitution. The Supreme Court created privacy rights based on 4th Amendment protections against unreasonable governmental searches and seizures. Judges may find the search unreasonable due to the officer’s method, failure to obtain a warrant, or simply because technology has advanced faster than laws guiding police procedures. 

Police rely on camera surveillance from Dallas to D.C.. Cameras watch highways in Milwaukee and waterways in St. Louis and Mobile. In NYC, Vision Zero, a surveillance program created by Mayor Bill de Blasio, will increase police surveillance of streets, parks, and tourist areas. But, while Mayor de Blasio supports this surveillance, he plans to end a controversial surveillance of Muslim communities by the New York Police Department (NYPD).

The Muslim communities in New Jersey, New York, and Connecticut were under surveillance by the NYPD, with permission from local authorities. This top-secret police operation known as the Demographics Unit led to NYPD plainclothes detectives watching Muslim neighborhoods in search of terrorist plots. 

Police built detailed files on where Muslims ate, prayed and shopped, the police department said. Mayor de Blasio has promised to end such police surveillances based on racial or religious demographics. Millions of Blacks and Latinos were detained under the stop, question, and frisk policies under Mayor Michael Bloomberg, Bill de Blasio’s predecessor, which led to Federal lawsuits and Federal oversight.   

NYPD’s surveillance of Muslims has also become the subject of two Federal lawsuits. “The Demographics Unit created psychological warfare in our community,” said Linda Sarsour, of the Arab American Association of New York. It has been viewed as harmful, not helpful, to national security given the increased tensions and distrust that have resulted.

However, a New York court found surveillance of Muslim communities was not a violation of the 4th Amendment. Police in the Demographics Unit recorded things in plain sight. Working undercover, officers went to bookstores, mosques, diners, and lectures in search of evidence. If venues are open to the public then they are open to police surveillance as well.

The U.S. Supreme Court will need to decide when police can look at calls made on a cell phone. On April 29, the Supreme Court will hear two cases involving police officers looking at caller information on a cell phone. In U.S. v. Wurie, Boston police did not have a warrant to look at a call log on a cell phone after they arrested Brima Wurie.

And, in Riley v. CA, a similar issue was raised when police looked at an individual's cell phone information during their arrest. If the Court finds the searches were unreasonable then the defendants can go free. However, police may not have known that looking at the cell phone information was an unreasonable search. The law was unclear.

The NSA search of telephone records is also an area where technology has out-paced law. Whether Edward Snowden is a traitor, hero or both is hotly contested. However, his revelations about the NSA’s surveillance of private telephone calls have unnerved even the most security-conscious person.

Edward Snowden, now 31, was a National Security Agency contractor when he decided to take NSA information and leave the country. Snowden is residing in Russia where he was given asylum. America revoked his passport and issued a warrant for his arrest. Snowden recently revealed that human rights organizations were also targets of the NSA.

Secret NSA courts, established in 1978, called Federal Intelligence Surveillance Courts or FISA courts, grant warrants to the NSA and the Federal Bureau of Investigation for secret searches. The judges on this secret court are also a secret.

For a criminal warrant there must be probable cause that a crime has been, is, or will be committed.  For a FISA warrant, there must be probable cause that the target is an agent of a foreign power. Judges decide probable cause.

In December, President Barack Obama released a report titled Liberty and Security in a Changing World to address concerns about the NSA database of billions of telephone calls made in, to, and from the United States.  This Report recommended reforms to the collection of information from private telephones and the internet. However, recommendations in the Report are not legally binding.

So, yes, you are being watched. But, who is watching the watchers?

 

Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College in NYC, is author of “Race, Law, and American Society: 1607 to Present,” a writer covering the U.S. Supreme Court, the United Nations, and major legal issues, and a playwright.

 

 

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