The Surveillance State and the Erosion of Trust in San Diego

Revelations about the surveillance state are eroding trust in government and in law enforcement in particular.  Police officer involved deaths of civilians are also responsible. Setting the Ferguson incident aside, which details are murky; Eric Garner's death in New York and the death of Tamir Rices in Cleveland, both captured on video, cast doubt on the fairness and integrity of those police departments and the justice system.

Locally, this distrust played out in social media on my app, NextDoor,which allows people to connect with others in their neighborhood (the comments referenced below come from the Bay Park neighborhood news feed.)  Significantly on this app, anonymity is not allowed, which seems to improve on-line behavior.  SDPD Officer Hesselgesser posted an article about car break-ins by thieves capturing the key-fob signal. I applaud the SDPD for taking to social media in this way to work with the community.  But, subsequent commentary revealed the impact of the lack of trust.  Officer Hesselgesser advised against covering up the vehicle's VIN as a means of preventing thieves from getting fobs from the dealership. Some wondered why.

What's the valid, non big brother reason we should keep the VIN uncovered?

Asked Tom from PB in the comments.

Another interaction that reveals the mounting concern over surveillance comes from this posting about video cameras at a Balboa Ave. intersection.

At the intersection of Balboa Ave. and the Target store entrance driveway, there are 4 video cameras installed next to the hanging traffic signals. All 4 cameras are aimed toward the center of the intersection. Does anyone know why the cameras are there, and who is monitoring them?

And comments worrying about transparency:

I noticed those also. For sure those are video cameras. They are *not* traffic light sensors or Traffic Signal Preemption (TSP) sensors for emergency vehicles (turn traffic lights green). The TSP sensors don't look like cameras. That intersection is not on the 511 camera list: http://traffic.511sd.com/#cameras/search/layers=cameras
I'm guessing those cameras are for law enforcement against illegal use of Traffic Signal Preemption devices which are sold on the Internet. If you want to dig deeper, call councilmember Chris Cate's office and ask.

In case you are curious the cameras appear to be optical detection cameras to sense approaching vehicles and linked to the traffic light controls.

Cylindrical object is optical detection camera. (Source: WikiMedia Commons.)

Finally, there is the unresolved issue of how the San Diego police are using the cell phone tracking devices known as the Stingray.  (This stingray is much more pleasant.) The Stingray is a mobile cell phone device that masquerades as a cell phone tower, allowing law enforcement to get a suspect's (or average citizen's) cell phone to divulge information to the interceptor.  Because information on the operation of the device is being kept secret by the San Diego police, we have no way of knowing if bystanders or even love interests of officers, are under surveillance.  The Snowden revelations have made us realize that once a technology is in the hands of the government, it will likely be misused without oversight.

Law enforcement needs to be held to a higher, not lower, standard than the average citizen.  There should be consequences when the police don't live up to high standards, rather than the current culture that rallies the DA and fellow officers to get an exoneration.  Even when circumstances don't warrant prosecution, poor police conduct that results in the citizen deaths should be punished by dismissal.  Finally, local law enforcement needs to be transparent.  The San Diego police should release as much information about the Stingray that pushes the envelope of what the Justice Department has told them.  When they engage on social media, a good thing, they need to follow up on citizen's concerns.  Restoring trust that law enforcement is doing its job while protecting our constitutional rights will make us all safer.

The NSA, the ACA, Filner and the Rule of Law

Bob Filner resigned yesterday under the weight of a sexual harassment scandal.  I say, one cheer for this outcome.  While Filner's sexual harassment conduct violated the law, it is generally not criminal, except for the potential assault charges, and even those would be unlikely to be felonies.  Filner's blatant disregard for the rule of law, including corruption, as chronicled on this blog should have been the more compelling reason for his removal.  From trying to shake down the hoteliers on the tourism district tax to shaking down developers, Filner displayed an arrogance and disregard that should have no place in American politics.  Sadly, these twin defects are plaguing our political system from city hall to the White House and the federal bureaucracy.

The Affordable Care Act is not delivering on its key promises and it is obvious to all but its most partisan defenders.  Dean has documented the numerous ways in which the act has been subverted by the administration itself with barely a nod to legality.  The President believes he can suspend portions of a law that he signed.  There is little outrage nor coverage.  Individuals will be penalized by the IRS soon if they don't buy approved coverage, big businesses, unions, and Congressional aides, not so much.  HHS Secretary Sebelius has described the ACA as "the law of the land," but what do we call a land in which the law is not applied to the ruling class and the favored classes but only to the "masses." Even socialists call that a tyranny.

Meanwhile, the NSA has acknowledged that its agents have violated the surveillance laws, without much consequence for the agency, because of course, the whole thing is secret.  A judge has concluded that the NSA has exceeded its authority and not been forthcoming.

The federal judge authoring the opinion, FISC Judge John Bates, concluded that there is no way to know with certainty how far the government’s intelligence and surveillance capabilities have actually gone. In his 85-page opinion, Bates noted that his court originally approved the NSA's ability to capture a more limited and targeted amount of data.

“In conducting its review and granting those approvals, the Court did not take into account NSA’s acquisition of Internet transactions, which now materially and fundamentally alters the statutory and constitutional analysis,” the judge wrote.

No accountability, spying on Americans and no way of knowing how far it goes.  How does this differ in any way except volume from any other totalitarian regime.

Peggy Noonan has analyzed the issue well, and although she is discussing the NSA in particular, this analysis applies to the lawlessness in government in general.

"All this scares me to death," the man [a former Senator] wrote. "How many times do we have to watch government, with the best of intentions, I am sure (or almost so), do things 'for us'? Now 'security' and 'terrorism' argue for and justify the case for ever more intrusions—all in the name of protecting us. The truly frightening thing is that we are told we have to depend on government to police itself. Not a comforting thought, for we already have far too much evidence of the lack of such self-supervision. These actions, as Nat Hentoff said, will sooner than later curtail free speech. 

"If so, I am fearful that this will ultimately lead a nation of sullen paranoids, ever more dependent upon government, ever more fearful of it. A free society, it will not be."

Leftists in charge of our government can't think of a better goal, it enhances their power to run everyone's lives.  True Liberals should join those of us in the liberty movement in rising up against this tyranny of lawlessness.  I had hoped that Filner's ouster would be seen as a good first step, but the greater point about rule of law appears to be drowned in a sea of sensationalism.

What You Should Be Reading

• Left Coast Rebel makes the point that conservatives should be making common cause with libertarians, not bashing them.  It is a theme I also hope to return to. 
• Assad apparently thinks he can act with impunity regardless of what Obama says.  Maybe he's right.  In order not to appear weak, we will have to respond in some manner.  But the rebels winning will let al-Qaeda get chemical weapons in all likelihood.  There are no good options in Syria.
• Can't feed their people, but somehow they can let crystal meth into a domestic market?  Read this strange report on North Korea.  (H/T M.J. Perry.)

It's Not Just the Stoppping, It's the Frisking

Judge Shira Sheindlin has ruled that New York City's stop and frisk policy is unconstitutional because it is conducted in a racially discriminatory manner.  I have always been uncomfortable with the the tactic, but I admit to never having researched the issue before.  First, let me say that I have no interest in looking at the merits of the racial claim.  I am not saying that the racial issue was decided wrongly, just that I think the policy itself needs review on its merits, not just in the context of racism. (Image source The Atlantic Wire.)

The constitutional basis for frisking is Terry v Ohio, in which it was held that the police may search for weapons on a suspect they have stopped for questioning if there is a reasonable suspicion of that person carrying a weapon.  The justification is officer safety.  The ruling does not focus on circumstances under which a person might be stopped in the first place, and the ruling implied that the officers in the case had a reasonable suspicion to make a stop.  I had trouble finding an authoritative list of reasons for stops, but found this on LegalZoom:

A stop is justified if the suspect is exhibiting any combination of the following behaviors:

1. Appears not to fit the time or place.
2. Matches the description on a "Wanted" flyer.
3. Acts strangely, or is emotional, angry, fearful, or intoxicated.
4. Loitering, or looking for something.
5. Running away or engaging in furtive movements.
6. Present in a crime scene area.
7. Present in a high-crime area (not sufficient by itself or with loitering).

This makes me think that making a stop should be a relatively rare occurrence.  If I am walking down the street and see a police officer, it should be far from my mind that I will be stopped.  Criminals form a small 1% of the population, and even then they are not engaging in crime at all times.  This should mean that the stops would be infrequent.  In New York City, the police are stopping upwards of 6% of the population on an annual basis.  In 2011, in some precincts, they have stopped over 20% of the population in a given year.  That means your odds of being stopped by the police is even money over an 8 year period.  (I ask readers knowledgeable in statistics to check that math.)  The top reasons given for stopping:

These reasons seem amenable to being highly subjective.  It seems obvious to me that the New York City police are stopping people without reasonable suspicion, even though that is the legal standard.  Let me be clear, the police need to be able to stop people for good cause.  Policing would never get done in this country if they couldn't; I just think that this is a systematic overreach that goes beyond the constitutionally permitted standard.

Frisks occur in about one out every two stops, based on the data I had available. For example, in 2011 The 75th precinct had 31,100 stops and 15, 800 frisks (one of the higher rates of stops).  The 94th precinct had only 2,023 stops but 1,050 of those resulted in frisks.  Frisking is governed by the Terry standard.  Since illegal weapons are only recovered in 0.1% of the cases, it seems unlikely that the police are applying a standard of reasonable suspicion when frisking.

Let's apply some common sense.  Constant surveillance by the police that includes a reasonable probability that you will be stopped and your person touched just for being on the streets is incompatible with our concept of a free society.  Walking around in fear of the police, as if they were a criminal gang, does not advance the cause of liberty, nor make us safer in the long run.  This behavior turns the police into the enemies of ordinary citizens and makes policing more difficult.  Typical of Mayor Bloomberg to advocate for less freedom in a way that does little to make actually make us safer.