In 2008, the Drug Enforcement Agency created a program to read and monitor vehicle license plates near border crossings in California, Arizona, and Texas. Seeking cooperation from local officials, federal authorities explained that the system would be used strictly to track the movement of contraband and money by Mexican drug cartels.
Today, however, the federal government gathers information from hundreds of cameras and scanners from California to New Jersey to Florida. The resulting database tracks the movement of millions of vehicles — maybe yours — throughout the United States. Who says that bureaucrats don’t know how to take an idea and run with it?
According to documents and e-mails obtained by the American Civil Liberties Union, and first reported by the Wall Street Journal, the vast database can be searched by any participating police agency. No search warrants are required, and no court supervises the system’s management.
Many readers might greet this disclosure with a shrug — it’s just the nature of the digital world in which we live. Not that long ago, however, the idea of maintaining information on the movement of law-abiding citizens would have been universally derided as a police state tactic.
As with any questionable law enforcement practice, defenders are quick to emphasize the program’s noble goal: eliminating the scourge of drug trafficking across the border. No doubt similarly laudable objectives were used to support the program’s rapid expansion, but crime-fighting is no justification for unconstitutional behavior.
Imagine if the government had resources to assign a police officer to follow every American every day. The crime rate would plummet — a desirable outcome indeed. Just as we find it outrageous that police officers would track the movements of law-abiding citizens, we should find it objectionable that they would track the movement of our vehicles. Considered another way, if tracking vehicles is acceptable, then why not track our use of public transportation, consumer purchases, or attendance at sporting events?
Proponents of the system might dismiss that as paranoia. After all, privacy advocates can’t point to specific examples of the system being abused (though one DEA employee did suggest monitoring attendees at a gun show — if that doesn’t bother you, you can stop reading now). But the fact that government hasn’t yet abused its power in no way justifies something that was a bad idea from the start.
Principle matters. The framers knew that granting power to the government carried with it an inherent potential for abuse, and that once granted, such power — whether used to regulate speech, monitor phone calls, or track vehicle license plates — would never be ceded easily. The potential for abuse may be small, but the consequences could be grave. The framers’ answer was to insist that access to personal property and information always require a warrant and be subject to due process — something completely missing here.
To be clear, this isn’t a knock against law enforcement; it’s a knock against human nature. And let’s face it, at the most basic level, the whole Constitution is a knock against human nature. The framers understood the power of power — the way in which it could subtly influence and alter behavior. The separation of powers is not an attempt to be fair or just, it is a structure designed to maximize the likelihood that one person’s bad judgment — or bad intent — doesn’t jeopardize everyone else’s freedom.
In today’s digital society, we happily make available commercial identifiers ranging from credit card numbers to internet browsing history. But this information represents private activity conducted over private (non-government) networks, fully protected under the Fourth Amendment.
When the government issues identifiers like license plates, a driver’s license, or social security numbers, it does so for a specific purpose prescribed by law. Using these identifiers for other purposes only increases the risk for abuse; using them to track the movement of law-abiding citizens runs contrary to the spirit, if not the letter of the Constitution.
It remains to be seen whether Congress agrees. To his credit, Senator Patrick Leahy was quick to raise concerns. But many of the same politicians who rush to the microphones to denounce Facebook or Google for using “personal” data to help sell consumers shampoo or Doritos are proving awfully quiet about the proliferation of government databases on private citizens.
In “Minority Report,” Phillip Dick’s science fiction thriller, facial recognition software, retina scans, and clairvoyant operatives are used to arrest “criminals” before they have ever committed an illegal act. That’s a crime-free world all right — and one that looks less like science fiction every day. It’s just not the world in which I want to live.
• Alan M. Dershowitz: Surveillance and privacy
• 2013 | Kade Crockford and Gavi Wolfe: Don’t mine data from license plates
John E. Sununu, a former Republican senator from New Hampshire, writes regularly for the Globe.