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Gov. Johnson On Privacy

April 5, 2012Posted in Blog, News

Privacy: Ditch the Cell Phone or Prepare to Disrobe

The next time you get a parking ticket and stuff it in the glove compartment to potentially be forgotten and left upaid, remind yourself of the name: Albert Florence.

Mr. Florence was picked up by the New Jersey Highway Patrol in 2005 on a warrant for an unpaid fine, arrested, and spent two weeks in jail — before the charges were dropped, since the police record of his alleged delinquency turned out to be incorrect. While in custody for the grave and society-threatening crime of not paying a fine, Mr. Florence was subjected to strip-searches in two different jails.

On Monday, the U.S. Supreme Court issued a 5-4 ruling that the treatment of Mr. Florence was OK. They said law enforcement must have “substantial discretion”, even if it means subjecting an individual to what some would consider the ultimate invasion of a human being’s privacy — for allegedly failing to pay a fine.

In an unrelated, but entirely related, development, we learned this week — thanks to an investigation by the pesky folks at the ACLU — that police departments all across the country are rather routinely tracking individuals’ cell phones without going to the trouble to secure warrants for doing so.

With governing law, such as the decades-old Electronic Communications Privacy Act, hopelessly outdated in the face of rapid technology advances, local police departments are largely left to write their own rules when it comes to using our cell phones as surveillance devices. Or, to not bother writing any rules at all. According to the ACLU’s research, it is not out of the question that, as you read this, the police could be using your mobile phone to keep track of your whereabouts.

As the New York Times pointed out, this is a reality that would seem more than a little inconsistent with the U.S. v. Jones Supreme Court ruling earlier this year that a drug suspect’s rights had been violated when authorities placed a GPS tracking device on his car.

Let’s get this straight: Local police departments are apparently tracking our cell phones at will, but placing a GPS tracker on a drug suspect’s car is an “unreasonable search” — as opposed to the apparently “reasonable” search of poor Mr. Florence’s body while he was wrongfully incarcerated.

There are a lot of us in America who still would like to believe that woven through the Constitution and the Bill of Rights is a fundamental right to individual privacy. And I don’t recall that we agreed to forfeit that right just because technology has outgrown the law or because the police need “substantial discretion” to make us take our clothes off.

Expecting the government to willingly constrain itself when it comes to violating our privacy is not just foolhardy; it defies everything we know about the very nature of government. Until privacy is restored as a fundamental American value and right that government is required to protect, rather than destroy, this erosion of our freedom — and dignity — will continue.

In short, if you don’t pay your fines, or maybe even if you do, ditch the cell phone or prepare to take your clothes off.

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