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a citizen’s journal by Thomas Nephew

Of searches, seizures, the society we want, and the rights we have regardless

Posted by Thomas Nephew on February 11th, 2009

Another point of view about license plate scanners, followed by my response.

You’re going to have to come up with something better than the Fourth Amendment if you want the Constitution to support your position. Unreasonable search and seizure? I’m sure you’re not referring to “seizure” so “search” must be the issue. You want to try to craft a definition of “search” that fits here? I can’t.

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From my perspective, the license plate scanner issue is one of surveillance and data protection.  Those issues are not just about what is and is not narrowly permissible to the police and the state, but about what our rights should be. Those rights were not exhaustively described by the Constitution or the Bill of Rights — how could they have been, by people who had no inkling of computers, video surveillance, GPS systems, etc.

I believe that the plain spirit of the Fourth Amendment and the Bill of Rights supports my view that license plate scanners represent an unreasonable search or seizure of information.

But whether I’m right about that or not, we still have the right to choose a less-surveilled, less abuse-prone society over a more heavily surveilled one. We can decide what kind of community we want. And I should think the burden ought to be on those who want more surveillance, not those who want less of it.

I’m not a legal expert (obviously, many will snort). I just try to reason out how my fundamental rights are or are not protected by what I see happening. I understand the counterarguments — you won’t need to repeat them — but the “search” or “seizure” of my “effects” that I see happening takes place at the time my license plate identification is compared to a database, for no reason other than that a squad car rolled past my car. (I use both words only because while it seems more like a “search” to me, some legally trained people I’ve talked to say it’s perhaps more of a “seizure”.)

But even if license plate scanning is permissible under the 4th amendment, as narrowly understood and adjudicated today, I’m more concerned with the anti-surveillance spirit that caused that amendment to be written. We fought a revolution once, among other things to be rid of unwarranted intrusions and chilling oversight, to be able to stand up and say we’re a free people, secure in the knowledge that we control and monitor our police and our government, not the other way around.

I like that spirit better than one seeking to justify “security” measures of little value. I hold out hope that we’ll either reject this particular security measure, or very, very strongly regulate its use.

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EDIT, 9/22/10: ‘that amendment’ for ‘them’.

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