Sunday, June 9, 2013

Big Brother Imprisoning You is Worse than Big Brother Watching You

By Robert H.

So this week we learned the government is gathering a lot of info about you without the usual procedures you jump through to get a search warrant (see links below), and people are freaking out.  But this ignores an important fact: search warrants themselves are really easy to get.  Search warrants aren't important because they make it hard for the police to search your house; they are important because they make it hard for the police to send you to jail.

Let's look at two attempts by the government to get information about you:

1. A cop goes to a judge and says a reliable informant he trusts promised you were a drug dealer.  He asks for a warrant to search your home.  The judge, inevitably, grants it.

2. A cop avers to the US foreign intelligence surveillance court that he needs meta data Verizon has about your calls, or searches through PRISM data in a way designed to avoid returning data about American citizens but which, in this instance, does return information about you.

To me, the procedure in one does not look much more rigorous than two, at least in terms of judicial oversight.  A cop trying to get an abusive search warrant just has to make up the existence of a reliable informant and, bam, a warrant is issued based on the testimony of "reliable informant" Lies McFartWhistle.

Lies McFartWhistle seen here (Lady McFartWhistle not pictured).

But now compare these two situations:

1. A cop made up the existence of a "reliable informant" to get a search warrant to your house, where he found drugs.  This comes out at trial after the warrant is examined and the cop questioned by the defense, the Court rules both that there was no probable cause for the search and that the officer did not act in good faith, and all the evidence springing from the search is ruled inadmissible.  Cops can't tell the jury they found drugs in your place; you go free.

2. A cop lies to get an FISC warrant and gathers data demonstrating you are a terrorist.  This data is then presented against you at trial. Because FISC warrants are secret, you cannot see the warrant or explore the reasons it was granted.  You go to jail.

Get my point?  It's very terrible when the government learns your private information and all, but it is really REALLY terrible when the government uses that private information to convict you of a crime.  Because of that, our number one safeguard against government intrusion into our privacy isn't magistrates issuing warrants -- they do so based on perfunctory and routine affidavits -- it is judges excluding evidence that wasn't gathered with probable cause.

In other words, the most important thing when it comes to the government invading your privacy isn't stopping the invasion itself, it is keeping the government from using the information they got to hurt you.  And that is why the use of secret evidence and secret warrants in criminal trials are and always have been the biggest threat to our way of life and to our privacy that has emerged in the war on terror.  And that's even if you include "terrorism" as something that has emerged in the war on terror.

So the new abuses that are being reported are bad, but you shouldn't take your eye off the ball: the real victims aren't we whose cell phone meta data is insecure, it is the terrorist being convicted or the immigrant being deported based on secret evidence approved by secret means.  It's not the government gathering secrets we should fear; it's the government using them.

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