Due Process is on the Chopping Block

The TSA has worked around due process.  Here comes the DHS and the EU Police following and looking to do the same.

February 24, 2020

By: Bobby Casey, Managing Director GWP

due process One of Lysander Spooner’s greatest criticisms of the US Constitution was:

But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

The rights of the individuals and states as outlined in the US Constitution, are not granted by it. They exist independently of it. The rights of the private individuals are presupposed.

The true purpose of the Constitution wasn’t to remind us that we as moral agents have rights. It’s purpose was to define the terms by which a government must regard those rights.

Sadly, the government has spent the better part of the last 229 years trying desperately to find loopholes. The Constitution is an inanimate object with ideas scribbled on it, but with no will of its own.  The politicians are the ones bending the ideas therein to their own will.

The vast majority of those who are serving in congress are and have been lawyers. They have distorted the line of where rights begin for the sole purpose of justifying infringement.

Lately, for as much as I love all the innovations and advancements in technology, I’m wondering if people are tacitly signing away their right to privacy when they agree to share some information with tech providers in exchange for their services.

More specifically, are they waiving their 4th amendment right to due process when they agree to some of the terms and conditions these service providers have?

I understand advertisers foot the bill so goods and services can be delivered to the consumers at little to no cost to themselves. And to a reasonable extent, I think consumers are okay with that much.

I do not, however, believe that the average consumer is okay with this:

Earlier this month, the Wall Street Journal broke the story that the Department of Homeland Security was buying GPS location information from marketing firms and using it to track people.

They claim to be tracking drug traffickers. These resources are extended to other agencies that fall under the DHS like ICE, which means this information is being used to track down undocumented individuals.

Here’s the problem with all this: In June 2018, the Supreme Court ruled that law enforcement need a warrant to obtain your location data. At the time, it pertained to law enforcement obtaining location data shared with telcom companies (i.e. Verizon or AT&T).

The government argued in that 2018 case that when someone shares their information with a third party, such as a telcom company, they relinquish any reasonable expectation of privacy. The court disagreed.

Fastforward to 2020, and the government argues that since the data is sold commercially to any willing customer, a warrant is no longer necessary. The ACLU is challenging that.

This comes down to consent. How far does the consumers’ consent go? Do they still have a reasonable expectation that while their data might be used or sold for marketing and advertising purposes, that it not be used as self-incrimination or a waiver of their constitutional right to due process?

The same should be asked of genealogy sites like Ancestry or 23andMe. When someone shares their DNA for the purposes of getting information about their lineage, is it reasonable to presume that they are also consenting to being logged in a database that can later be given or sold to law enforcement?

The new normal is beyond what any constitutional framer could’ve anticipated. Half the technology we have now, was the stuff of science fiction shows back in the 1960’s. Tech and innovation do not negate individual rights, however.

In fact, I would argue that it’s not the rights of individuals that needs updating, but rather the scope of government that must be further defined in the context of this digital age. If individual rights are the constant, then what needs to be adjusted is the sort of accountability and restrictions which will be imposed on the government agencies given these advancements.

Think about the arguments being made and the civil liberty catastrophe that could lead to:

  • If you share information with a 3rd party, you lose any claim to a reasonable expectation of privacy.

  • If your information can be captured and sold on the open market, then they don’t need a warrant.

How far can this go? It’s easy to poke at China. They have massive surveillance and a citizenship score! But then you find out London isn’t much different. While disturbing, that’s not enough to call it “pervasive”.

What if I told you that there was a recent leak that the EU Police are seeking a European-wide network of facial recognition databases? Not just member states, but all European countries.

The report was produced as part of discussions on expanding the Prüm system, an EU-wide initiative connecting DNA, fingerprint, and vehicle registration databases for mutual searching. A similar system exists between the U.S. and any country that is part of the Visa Waiver Program, which includes the majority of EU countries; bilateral agreements allow U.S. and European agencies to access one another’s fingerprint and DNA databases.

Inevitably, if this database is expanded, the US will want a piece of that too.

Edin Omanovic, advocacy director for Privacy International said, “Without the transparency and legal safeguards for facial recognition technology to be lawful there should be a moratorium on it.” I agree.

First, not all European countries are created equal. While some might be more respectful of civil liberties and impose restrictions of their own, others might not.

Second, if it “depends on who is in office”, then this sort of network opens the floodgates for abuse, depending upon who is in office.

Does it get used to track down wealthy expats? Is it used to pursue dissenters and activists?

This isn’t about left versus right. This is about free individuals versus the ever encroaching state. Whether the restrictions on the governments are codified or not in any document doesn’t matter if it isn’t enforced, and there are excuses to bend those rules. That’s how tyranny circumvented the Constitution, and that’s how it will circumvent the safeguards for this technology.

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