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a citizen’s journal by Thomas Nephew

License plates and the expectation of privacy in a public place

Posted by Thomas Nephew on 4th February 2009

I’ve been taking part in some online discussions about the Takoma Park license plate scanner issue. One refrain that keeps coming up is that there’s “no legal right to an expectation of privacy in a public place.” As one correspondent put it succinctly,

The sequence of letters and numbers on a license plate is obviously in the public domain. Any notion that people have a right to keep that very public information private is nonsense on stilts.

Actually, there are all kinds of reasonable expectations of privacy in public places, and expectations of privacy of “public information.” Your discussions with a friend or the book you’re reading in a park — there are devices that can zoom in and capture those sounds or sights, but a court would (or at least should) frown on doing so without a warrant.

Consider systems that automatically identify you as you walk by their video cameras — the distaste you feel is meaningful, you don’t care whether you’re in a public space or not. (I realize these systems are unfortunately common; I’m questioning that they should be.) The basics about your identity — name, appearance — are public, but most of us don’t welcome automated systems putting the two together for no good reason.

But your distaste is more than mere distaste; it is a sound instinct for freedom, and it shouldn’t be shrugged off. Why, then, should we become complacent about the same kind of tracking of cars — for better or worse, our principal means of transportation and freedom of motion?

Consider: license plates are “anonymized” for a privacy reason — they don’t say “[your name here]” on them, unless of course you choose a vanity plate that does so. To see this, imagine the reaction if license plates did have to list people’s last names on them — and then realize that license plate scanners essentially do just that, to no legitimate law enforcement purpose for 99.99% of the plates those scanners will encounter.

The wholesale, automated capture of license plates in time and space represents a ‘catch and (maybe) release’ search or seizure of information about us — and one that seems based neither on probable cause nor on reasonableness. Rather than a reasonable search or seizure (the 4th amendment yardstick), it is literally an unreasoned search or seizure.

People shouldn’t assume there’s a clear analogy between a cop on the street writing down a license plate and a device in a squad car vacuuming up every license plate image it senses. The former is a decision by someone who had a reason to do so and who would be reasonably expected not to do so arbitrarily. The latter — the license plate scanner situation — is in some ways almost the exact opposite of that; it’s a difference not just in degree but in kind.

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Department of followups: vanishing civil liberties edition

Posted by Thomas Nephew on 22nd November 2005

Freedom of speech in ole Virginny, October 4, 2005 — We can all breathe easy: George Mason University student (and Air Force veteran) Tariq Khan will not face charges for being roughed up by university police after he peacefully protested against military recruiting on campus. The Washington Post’s Tom Jackman reported (November 15, 2005):

Fairfax County prosecutors yesterday dropped charges against a George Mason University student who was arrested by campus police in September while protesting military recruiting at the school.

After investigating the case, George Mason officials asked last month that the charges against Tariq Khan, 27, be dismissed. Fairfax prosecutors complied in a brief hearing in Fairfax General District Court. Neither school officials nor prosecutors would explain why yesterday.

Here’s my theory why: from accounts I’ve read, I think Khan has a better case against the university than they do against him. At any rate, Khan had a lot of support on campus; the article says that about a hundred students and faculty held a teach-in on his behalf last month.

Senatorial malpractice: habeas corpus attacked, November 14, 2005: As is well known, the Senate first rejected Senator Bingaman’s detainee bill by 45-54, and then passed a Graham/Levin/Kyl compromise amendment apparently undoing the worst of the Graham court-stripping bill, but still leaving habeas corpus rights for detainees in shambles — if only because the net legal effect is apparently unclear even to legal scholars like Marty Lederman. As Hilzoy (“Obsidian Wings”) wrote that day of the fourteen “nay” votes, “If you look at the list–Baucus, Biden, Bingaman, Byrd, Dayton, Durbin, Feingold, Harkin, Kennedy, Lautenberg, Leahy, Rockefeller, Sarbanes, Specter–it’s clearly a protest vote by senators who simply would not put their names on any bill to strip habeas.”

Hilzoy concluded her and Katherine’s series on the issue with “Requiem“, which takes up the details of the Adel case mentioned in the update to my post, based on the transcript of his hearing before Judge James Robertson of the U.S District Court for the District of Columbia. Mr. Adel was a Uighur (Western China) Muslim turned in to American forces by a bounty hunter. It turned out that the government kept its finding that Adel was a noncombatant a secret from defense lawyers and the court, while keeping said defendant incommunicado and often chained to a floor in Guantanamo. Apparently their difficulties in finding a country to take in Mr. Adel outweighs his human right to be free — sometime, manana, whenever:

“THE COURT: Counsel, you said that — you used the word ‘soon’ to describe when you thought that this might be resolved. Define ‘soon’.

MR. HENRY: I don’t know when that is. I apologize if I misspoke. I mean, I think I said ‘soon’ in kind of the hopeful sense of the word.”

Why Mr. Adel isn’t entitled to an apology, a permanent visa to the U.S. or U.S. citizenship (if he’ll have it), reparations, and freedom yesterday is not clear to me.

Fidelio, May 24, 2003 — When I wrote about Beethoven’s opera celebrating the liberation of prisoners from a repressive political system, I concluded:

Beethoven’s story of political oppression and liberation couldn’t help but remind me and, I’m guessing, most of the audience of the events of the past months in Iraq: oppressors toppled, political prisoners freed, torments, disappearances, and “prison cleansings” ended. Self-congratulation on the order of the final scene in Fidelio isn’t warranted for Americans about Iraq, at least not yet. But Beethoven’s opera was a stirring reminder for one audience, for one night, that ending repression and liberating its victims is a fundamental triumph for all mankind.

So much for Americans congratulating themselves about that. Mark Kleiman’s co-blogger Michael O’Hare saw “Fidelio” last weekend, and remarked:

…the last time I saw it, perhaps a decade ago, it was about the kind of thing bad people in foreign, benighted, and afflicted lands did to their freedom fighters and those who spoke truth to power. Tonight, when the prisoners staggered out of their cells into the sun in Act I, ragged, haggard, and beat-up, all I could think of was how many of the wretched oubliettes around the world, with ragged, haggard, and beat-up people in them, have an American Flag or a CIA compass over the door, and God knows what horrors being practiced inside.

I’d hesitate to call many of our enemies in Iraq “freedom fighters” (and you’ll note that’s not really what O’Hare does either) but I’d certainly also hesitate to call Abu Ghraib etcetera “freedom.” Like O’Hare, I miss being proud of my country.

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EDIT, 12/6: Replaced “Judge X” with “Judge James Robertson of the U.S District Court for the District of Columbia” (blush), and added a link to the transcript.

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War aims, emergencies, extraordinary measures

Posted by Thomas Nephew on 11th December 2001

So far, so pretty good in the war against Al Qaeda, Bin Laden, and their Taliban lackeys. But as that war appears to near the end of its Afghanistan phase, it’s time to carefully consider our war aims before barrelling onward. Aside from my perhaps high-falutin’ foreign policy reservations, there is a second kind of reason to resist the temptation to widen the war: concern for our rights and our system of government. In an article in The American Prospect, “The Unending War,” Robert Reich argues

On the one hand, the White House describes the war as one without obvious end. […] On the other hand, the war is also described as a national emergency … It is also understood that a wartime emergency may require extraordinary measures, including some abridgment of freedom at home[…]

But emergencies are temporary; extraordinary measures are not ordinary. Banana republics routinely declare “emergencies” that end up being permanent, but American democracy doesn’t work that way. Regardless of how popular a war might be initially, a state of emergency cannot continue forever.

At some point, our war aims will have to be specified with greater clarity, and emergency measures will need to be delimited. The White House will have to provide us with criteria for how we will know when we have won the war and how we can gauge progress along the way. Indeed, the longer and more ambitious the war, the more important is such clarity.

Now, I’ve exercised some editorial discretion here, sidestepping some familiar bleats about “no one dares question” etc. Trimmed of such baggage, I agree with Reich. While I don’t agree with Jacob Weisberg that there is no value to public discussion and dismissal of shopworn ideologies, or that there aren’t plenty of leftish misconceptions to clear up, I may share with him a feeling that there are more important things to do now: we need to look forward and decide what it is we hope to accomplish, and at what cost to our freedoms and system of justice.

Steve Den Beste and others see a wide array of enemies, and, if I may summarize, seem to want to capitalize on our momentum and vanquish them as well. But I think that by adding countries like Iraq to our to-do list, instead of focusing on Al Qaeda havens in Somalia, Sudan and/or elsewhere, we would dilute our efforts and prolong the emergency we seek to end. This administration has surely proven it’s able to wage a war, but I distrust its attitude towards civil liberties and towards working within the checks and balances of our republic (however “unfortunately” Democratic its Senate may be). Ashcroft’s Senate performance was that alarming to me, the manipulations in Florida and by the Supreme Court are still that fresh in my mind.*

Way, way back in late September (it really does seem a long time ago to me), Matt Welch wrote a good piece, “Keep Hope Alive“, urging dispirited “lefties” — but surely the rest of us as well — to formulate war aims. I’m not sure any of us ever adequately followed up on that. I think it’s high time we did; before we settle into a permanent state of war abroad and emergency at home, let’s at least decide that’s what we want, and why.

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* As ever, this is based on my view that Iraq has not been persuasively shown to be involved in the 9/11 attacks, or in ongoing support for Al Qaeda. I may be mistaken about either point; if sufficient evidence exists, we should make war on them until their rulers fall. I also assert, by the way, that Gore would have risen to this occasion as well — and, if so, surely for many as unexpectedly — as Bush did. We might be a few weeks behind Bush’s schedule militarily, and have a few more carefully limited domestic anti-terrorism measures. The United States is strong as a nation; its leaders contribute to the margins and guidance of that strength, not to the substance of it. No matter who was elected president, we’d be at war now, and at war to the finish. Thus I’m not at all inclined to view Bush’s election squeaker as the “Miracle of Midway” event that (fellow Gore voter!) Steve does.

Update: Steve responds.

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John Ashcroft is a big fat idiot

Posted by Thomas Nephew on 10th December 2001

There, that will get me plenty of Google hits, I hope. Now that you’re here, go see Patrick Nielsen Hayden’s “Electrolite” blog, where he assembled a superb who’s who, from Andrew Sullivan to Jacob Weisberg to Matt Welch to Jimmy Carter to himself, of thoughtful and scornful negative reactions to Mr. Ashcroft’s policies and Senate appearance last week.

Lest we forget, here are Ashcroft’s own words again:

To those […] who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends. They encourage people of goodwill to remain silent in the face of evil.”

Mr. Ashcroft’s only long-term contribution to civil liberties may be as the poster boy for why we should never have given an inch of them away in the first place. I say this with regret and in self-accusation: I was too willing to let the rules be stretched a little, despite my opinions about Ashcroft (and Bush) in particular and about wartime and civil liberties in general. I think the tradeoff between security and civil liberties might theoretically be adjusted — temporarily. I also acknowledge that reasonable people may decide differently how vigilant to be on behalf of non-citizens. But after his Senate appearance, I simply do not trust Ashcroft to make those adjustments or decisions. If he sticks around much longer, I’ll have to reconsider the trust I’ve gradually placed in Bush — and, as Matt Welch suggests, the trust I’ve invested in the Democratic Party.

Among the fundamental problems here, in my opinion, is that we are in an open-ended and ill-defined conflict. As I believe I’ve made clear, I support waging that conflict with ferocity, and let the BLU-82s fall where they may. Within a reasonable circular error probable. Overseas. But we don’t have the advantage that wartime Americans usually have: this one may arguably never be “over.” Had the administration put time limits on their measures — with the possibility of re-enabling them with the consent of Congress — rather than tying them to the current emergency, I’d feel somewhat reassured. Instead, the Bush administration and John Ashcroft seem to positively revel in their total control of the machinery of justice. They don’t seem to care that they risk putting those dreaded ironic quotes around the word: “justice.” Of course, the Supreme Court led the way there, why shouldn’t the Bush administration it midwifed?

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