A. Barton Hinkle | May 25, 2011
In 1991, George Holliday filmed the LAPD’s arrest and beating of Rodney King. The videotape provoked national controversy. If a similar incident happened today, it might provoke something else: the arrest of George Holliday.
Cell phones and cameras with video-recording capability have become ubiquitous. This has led to an increase in the filming of police officers, which has led to a backlash: Cops have begun arresting those who film them, on charges such as interfering with an investigation—even when the filmer is not interfering and the officer is not investigating.
In one now-famous example, motorcyclist Anthony Graber’s helmet cam was rolling when Graber was pulled over last March by a Maryland State Trooper. The Trooper came out of an unmarked car in plain clothes, yelling, with his gun drawn. Graber didn’t like that—and posted the video on YouTube. In short order he was arrested and charged with felony wiretapping. A judge eventually threw the charges out—six months later.
Such incidents have led to a national conversation about the propriety of videotaping cops, even as dashboard cameras have become standard in squad cars. There seems to be some tension in the assumption that, as Graber’s lawyer put it, “the officer has a privacy expectation, but the motorist doesn’t.”
That asymmetry has been underscored by recent rulings over global positioning systems. Last year the Virginia Court of Appeals said Fairfax County police did not violate a suspect’s right to privacy when, without a warrant, they surreptitiously put a GPS device on his vehicle to track his movements. Individuals have no expectation of privacy on the public streets, the court ruled—a position also taken by the Ninth Circuit in California.
Yet this past January, Kathy Byron, a member of Virginia’s House of Delegates, introduced legislation that would have forbidden the use of GPS tracking devices for the purpose of following political candidates. People running for public office “are still entitled to some privacy,” she argued.
If ordinary citizens have little claim to privacy in public places, then what about their electronic devices? U.S. border-patrol agents often search the phones and computers of American citizens who cross the border—routinely “accessing email accounts, examining photographs and looking through personal calendars,” according to The Constitution Project, a watchdog group. “In some cases, electronic devices were confiscated for as long as a year.” And in Michigan, the State Police have high-tech forensic devices enabling them to download information from the cell phones of stopped motorists—something they have been doing without a warrant.
In New York, a cell phone alert system will send text messages with a unique ring tone in the event of a terrorist attack or other emergency. By next year the system will go nationwide, and all new cell phones will be required to contain the special chip needed to relay the messages. Orwell comparisons are overdone, but it is hard not to think of 1984: “The voice from the telescreen paused. A trumpet call, clear and beautiful, floated into the stagnant air. The voice continued raspingly: ‘Attention! Your attention, please! A newsflash has this moment arrived from the Malabar front. Our forces in South India have won a glorious victory. . . .’ ”
Soon Americans might have no right to expect privacy even in the privacy of their own homes. Earlier this month the U.S. Supreme Court ruled 8-1 that police officers may force their way into your domicile without your consent, without a warrant, and without what are usually referred to as “exigent circumstances”—e.g., someone inside the home yelling for help. The case, Kentucky v. King, concerned an incident in which police officers chasing a drug suspect ran into an apartment building, smelled marijuana, heard noises they thought might indicate someone was destroying evidence—and broke down the wrong door. This, said the Supremes, was perfectly fine.
Dissenting Justice Ruth Bader Ginsberg asked an apposite question: “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”
The Indiana Supreme Court recently issued two rulings of a similar nature. The first said police officers serving a warrant can enter a home without knocking if officers decide they need to. The second said residents have no right to prevent the unlawful entry of police officers into their homes.
Before long the police might not even need to enter your home to search it. Last year Forbes reported that a company called American Science & Engineering racked up $224 million in sales of ZBVs. Those are Z Backscatter Vans, equipped with x-ray machines that can see through walls and clothing. The magazine says the vans have become “powerful tools for security, law enforcement and border control.”
Let’s be clear about one thing: Asymmetry is not the same as injustice. The police can pull you over for speeding, but not vice versa—and that is as it should be. The whole idea of having police departments is to allow only certain authorized individuals — the ones with badges—to raid homes, arrest suspects, and so on. And many of the developments noted above will help law enforcement catch bad guys, which is a good thing.
But it is not the only thing. It is not even the primary thing. Catching bad guys is an ancillary goal for government, whose first duty is to protect the rights of law-abiding citizens. It’s hard for government to do that while simultaneously chipping away at them.