July 28, 2013 in Opinion

Searches must be reasonable

Douglas A. Orr
 

A native of Philadelphia, I spent my formative years appreciating its unique historical offerings, chief of which was the yearly field trip to Independence Hall. The room where the Declaration of Independence was signed, with its ordered chairs and tables, reminded me that deliberation was key to the preservation of life, liberty and happiness.

Somewhere on the grounds at Independence Hall, I remember seeing a copy of John Trumbull’s painting depicting the signing of the Declaration and asking my second-grade teacher why the faces in the painting seemed to be a great deal brighter than anything else. She replied, “That’s the glow of their virtue.”

If the men in Trumbull’s painting called us to be noble and virtuous people, we should be mindful of this as we consider how to manage the beast and burden of technology as it relates to our privacy. Recent local concerns on the orbs that skip across our atmosphere, and the drones flying our skyline, have given rise to a significant amount of deliberation.

To better determine how the government could or should use technology to collect information on private citizens, we appeal to the virtue of reason. Not simply a conversation about relative terms like values, principles or goals. So when officials tell us they need toys like drones, license plate readers and body image scanners, we expect that they will provide us with a very good reason for needing them.

To many of us, those reasons have become suspect. The predictable “just trust us” answer is always questioned. The manipulative “if we don’t do this, the terrorists will win” does not work anymore. Perhaps the worst one, however, is subtler.

You should trade liberty for safety.

Patrick Henry did not like that one. And a growing number of citizens like myself do not either. The tone of the Declaration of Independence and the character of the U.S. Constitution that followed spell out in very certain terms that we will have safety if we have liberty.

So why are we so complacent when we discover that our government is collecting non-criminal intelligence on its citizens? We should be given a very good reason. A nonpartisan reason. One of moral excellence.

Thomas Jefferson asked us to consider difficult constitutional questions in the light of how they were first framed by the Founders. The Fourth Amendment protects us from unreasonable searches, not reasonable ones. Accordingly, when law enforcement can articulate exigency or other immediate conditions we set aside the warrant requirement because it is reasonable to do so.

I would question the virtue then of someone suggesting to me that they “need” to collect my cellphone records to fight terror. That they “need” to routinely survey my property. All in the name of security?

When we trade liberty for safety, we allow the government to become the arbiter of what is right and wrong. And that role belongs to us, the community.

What they “need” to do is provide me with a much better reason. A virtuous one.

If we want to aggressively address stolen vehicles and their recovery, then license plate readers are certainly the way to go. To retain our liberty, however, we should purge the data collected following the average recovery period. Why? Because it is reasonable.

If we want to use an unmanned aerial vehicle (UAV) to survey a residence known to house wanted individuals or those conducting criminal activities prior to a search warrant so that our police and deputies can enter safely, we should do so because it is reasonable.

But our local government using the UAV to routinely collect non-criminal intelligence on individuals? Sorry. Not reasonable.

Even amidst the eye rolling, we are right to begin this conversation. And when your elected officials begin telling you why they need this technology, look closely for that glow on their face. Make sure it is virtue and not the reflection of the iPad in front of them.

Douglas A. Orr, Ph.D., is a Spokane police detective and also serves as an Adjunct Professor of Criminal Justice at Gonzaga University. His opinions are his own and do not reflect the views of the Spokane Police Department or Gonzaga University. He may be reached at dorr@douglasorr.com.


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