Mission Creep

Police and policy-makers often justify extraordinary surveillance programs on the grounds that they prevent terrorism, espionage, and other extraordinary crimes. Once a surveillance and data storage infrastructure is in place, however, the temptation to use it for other purposes can prove irresistible.

The makers of the Constitution … conferred, as against the Government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation … The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

-Justice Louis Brandeis, dissenting opinion in Olmstead v. United States (1928)

DESCRIPTION

The NSA, for instance, officially focuses its bulk electronic surveillance on foreign terrorism and intelligence targets. But because the agency collects a massive amount of information without getting traditional search warrants, many other law enforcement agencies have tried to get access to its databases. According to recent reports, the NSA regularly funnels intelligence on ordinary drug traffic to the DEA through a little-known unit called the Special Operations Division, which is made up of representatives of dozens of federal agencies. The DEA uses these intelligence intercepts to launch investigations – but an investigation by Reuters turned up “undated documents [that] show that federal agents are trained to ‘recreate’ the investigative trail to effectively cover up where the information originated.”

The same trend has played out at the state and local level. Since September 11, 2001, the Department of Justice and Department of Homeland Security have distributed hundreds of billions of dollars in grants to state and local police to assist in responding to terrorism. However, local and state police departments conduct few anti-terrorism operations. Instead, they use the high-powered weapons, tactical vehicles, and surveillance equipment purchased with federal money to investigate ordinary crimes.

Even federal agents rarely use special surveillance powers authorized by the PATRIOT Act to investigate true national security threats. “Sneak and peek” warrants, for instance, allow agents to secretly bug and monitor your home and communications without ever having to disclose that you were under surveillance. Between 2006 and 2009, agents sought 15 sneak and peek warrants for terrorism investigations, 122 for fraud investigations, and 1,618 for drug investigations. Although former Seattle police chief Norm Stamper recognizes that local police have a role to play in protecting our communities from terrorism, he protests that “we got a 10-year campaign of increasing militarization, constitution-abusing tactics, needless violence and heartache as the police used federal funds, equipment, and training to ramp up the drug war. It's just tragic.”

Examples of Use

Location::
Los Angeles, CA
Homeland security grants: not just for homeland security anymore
When the Los Angeles Police Department applied for a Department of Homeland Security grant to purchase a StingRay, a electronic surveillance tool that vacuums up data from cell phones in its vicinity, it promised that it would use the device for “regional terrorism investigations.” However, a public records investigation by the California First Amendment Coalition found that during a single-four month period in 2012, the LAPD used the device 21 times in ordinary, local drug investigations. In fact, the records show that in 2013, the LAPD used the StingRay in 13 percent of all of its “cellular phone investigations.” Increasingly, privacy advocates and elected officials regard local departments’ claims that they need advanced equipment to fight terror with skepticism. As one Keene, NH, city councilor told the Boston Globe, “Our application [for money to buy an armored personnel carrier] talked about the danger of domestic terrorism, but that’s just something you put in the grant application to get the money.”

Recommendations

When government agencies consider acquiring and using surveillance systems, communities and their elected officials must both weigh the benefits against the costs to civil liberties and carefully craft policies and procedures that help to limit the negative effects that surveillance will have on fundamental rights. For a useful list of considerations, please visit the recommendations page.