The United Surveillance States

By Kevin D. Williamson

Sunday, October 23, 2016

Del Mar, Calif., is one of this nation’s beautiful places, a surfing town on the California coast not far from San Diego. That also puts it close to the Mexican border — less than two hours to Tijuana down the 805. Traveling between San Diego County and Mexico is about as exotic as traveling between Omaha and Des Moines. They also have gun shows there, from time to time.

That lattermost fact caught the attention of the Obama administration, which has an interest in gun smuggling. (That interest happily is no longer proprietary, so far as we know, Operation Fast and Furious having been concluded.) And so Immigration and Customs Enforcement was ordered to do something extraordinary: Working with local police departments, it set up automated license-plate readers to record the information of everybody coming and going to Southern California gun shows, including the one in Del Mar. It then cross-referenced the plate numbers against those of cars crossing the U.S.–Mexico border near Tijuana.

The theory here — if such loosey-goosey thinking even deserves to be called that — is that drivers who both attend gun shows and drive across the border are apt to be involved in gun smuggling. That might just about be plausible if we were talking about people who had attended gun shows in Maine or Connecticut. But people who attend gun shows in Del Mar and then cross the border are about as likely to be smuggling guns as people who shop at Whole Foods in Darien, Conn., and then drive over the Triborough Bridge are likely to be smuggling organic avocados into Manhattan. Driving across the U.S.–Mexico border is not especially suspicious when you live on the U.S.–Mexico border.

As the Wall Street Journal reports, the Drug Enforcement Agency considered a similar scheme before abandoning it.

ICE has no written policy on the use of license-plate scanners, and therefore no guidelines in place to address what is plainly yet another episode of mass surveillance conducted against the general population by law-enforcement agencies that cannot quite rouse themselves to do old-fashioned police work.

Federal law prohibits the creation of mass databases of U.S. gun owners, a provision of the 1986 Firearms Owners Protection Act, a law passed to head off Democrats’ efforts to create a national gun registry. The surveillance also brings up some Second Amendment questions, but what is really at play are familiar constitutional concerns about unreasonable search and seizure. We require things like subpoenas, court orders, and warrants because the invasion of our privacy by police authorities is supposed to be conditioned upon such criteria as “probable cause” and “reasonable suspicion.” The mere fact of being a resident of southern California who does two things common among residents of southern California does not give police probable cause to believe that one is likely to be up to anything more nefarious than a trip to In-N-Out. This is plainly abusive and lawless behavior on the part of the Obama administration, which, if you’ll remember, came into power in 2009 partly on promises to roll back privacy-invading programs associated with the George W. Bush administration and the PATRIOT Act. That was back when Barack Obama was worried about feds snooping through your library records, before the Nobel Peace Prize winner took to assassinating U.S. citizens as part of the endless “war on terror.”

The creation of such mass databases is dangerous and unnecessary. But it is something that governments at all levels, under leaders of both parties, are pursuing aggressively. If you want to drive legally in freedom-loving Texas, prepare to be subjected to electronic fingerprinting and rules that require (unlike some other western states) license plates on both the front and the back of your car, to facilitate automated plate-reading.

If you have a driver’s license, your photograph and identification have probably been uploaded to a nationwide police database searched by facial-recognition software, even if you never have committed a crime or had so much as a speeding ticket. Police can use those to find bank robbers, but they also can use them to see who is attending the Clinton-for-president or the Trump-for-president rally this weekend. The Center for Privacy and Technology at Georgetown University surveyed 100 law-enforcement agencies, and what they found will horrify you even as it fails to surprise you: Almost none of those agencies had policies restricting inquiries into lawful public events conducted under First Amendment protection or conditioning such inquiries on traditional constitutional standards; only one agency even bothered conducting routine audits into how those tools were used and against whom.

(Hurrah for the Michigan State Police.)

There is a good reason why police agencies do not audit the use of such programs: Because when they do conduct such audits, they find abuse, and lots of it. An Associated Press report found police officers using confidential law-enforcement databases to stalk former lovers or investigate new ones, to harass personal enemies, and the like. It’s pretty entertaining stuff, human frailty on dramatic display: A marshal whose ex-girlfriend was seeing a man who drove a white pickup ordered information on every white pickup in his jurisdiction; another police officer accessed information about a woman in a domestic-battery case to send her unsolicited Facebook messages on the theory that she probably was available; a jilted Akron police sergeant went to prison on a stalking conviction after abusing police data to harass and threaten his ex-girlfriend and her mother; another police officer shared information with suspects in a drug and gun-trafficking case in exchange for sex.

There are some heroic men and women in law enforcement. There are also a lot of bullies, bums, and reprobates, just as there are in any other group.

We know from experience that these tools will be abused. In cases such as the California gun-show surveillance, these tools are put to trivial ends that are difficult to justify at all in terms of their value to investigators, even if we could get past the constitutional questions. In those cases in which such surveillance is both legal and useful, it must be narrowly available, conditioned on the same standards of probable cause as any other invasion of privacy, and constantly audited by oversight authorities outside of the police agencies in question.

The police say they want these tools because it is difficult to tell the good guys from the bad guys. It is, and such technological terrors should be carefully managed for exactly the same reason.