Bluefield Daily Telegraph, Bluefield, WV

Columns

August 20, 2013

Privacy under attack? Stop-and-frisk versus NSA surveillance

—  As Americans, we each have a guaranteed right to privacy. The online legal site FindLaw explains it this way: “The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen’s right to be free from unreasonable government intrusion into their persons, homes, businesses, and property — whether through police stops of citizens on the street, arrests, or searches of homes and businesses.”

That seems plain enough, but how one interprets the word “unreasonable” provides ample opportunity for mischief, as well as for good law enforcement.

As for good law enforcement, New York City Mayor Michael Bloomberg has credited the city’s stop-and-frisk policy with helping drive crime to record lows since the policing policy was implemented in 1994, with the murder rate falling by an astounding 82 percent by 2009.

New York’s stop-and-frisk policy seeks to prevent crime before it happens by deploying officers with pinpoint precision to critical street segments in high-crime areas where they interact with individuals displaying suspicious behavior: they approach, question and sometimes frisk the individuals. That practice has led to fewer people, such as members of street gangs, risking arrest by carrying a weapon on their person, and with fewer gang bangers carrying weapons, there are fewer spur-of-the-moment shootings in New York, and correspondingly fewer deaths.

You might think that, given the obvious level of success in reducing the murder rate in the Big Apple, such a policy would fall outside the Fourth Amendment’s proscription against “unreasonable” searches. But you would be wrong, according to U.S. District Judge Shira Scheindlin, who believes that the policy indeed does violate the Fourth Amendment protection.

Mayor Bloomberg believes that the judge’s decision will cause a reduction in the use of stop-and-frisk, which would reverse crime reductions and make his city a more dangerous place. And data indicates he is correct. In 2011, guns were used in 61 percent of all homicides, but in black neighborhoods 86 percent of young black males died from gunfire. Stop-and-frisk reduced the total number of deaths by reducing the number of guns on the streets.

The challenge to the policy arose because officers stop minority residents at a rate disproportionate to their number in the general population. But those stops are not disproportionate to the minority resident population in the crime-ridden neighborhoods or disproportionate to the number of crimes minorities commit in those neighborhoods.

As we have seen recently, there is the possibility that authorities may lose perspective and become abusive in the use of policies like this one, but supervisors are charged to competently manage their operation. And due to the depths of its crime problem when the policy was implemented, New York police applied stop-and-frisk more aggressively than other cities. But whether or not the city is too aggressive ought not be decided without considering its unique circumstances and surprising rate of success in reducing murders.

An opposite approach to systematically and thoughtfully targeting areas where crimes mostly occur and populations that most often commit them like New York city is doing is the blanket, indiscriminate, suspicion-less spying on telephone, email and other private communications and activities of millions of Americans by the National Security Agency.

The government’s spying on Americans is so egregious — eavesdroppers broke privacy rules or overstepped their legal authority thousands of times every year — it’s no wonder the administration wants to arrest and try Edward Snowden for making the information about its spying public.

Where New York police might appear to have been over-aggressive in implementing stop-and-frisk, the federal government’s policy itself is over-aggressive by design. Surely, observers familiar with the Fourth Amendment’s restrictions on searches would be unable to conclude anything other than that NSA spying is precisely why there is a Fourth Amendment.

As reported in The Washington Times, “A Top Secret internal NSA audit, leaked by Mr. Snowden to freelance journalist Barton Gellman earlier this summer and published online by The Washington Post Thursday night shows that, in the 12 months prior to May 2012, there were 2,776 incidents of ‘unauthorized collection, storage, access to or distribution of legally protected communications’ — those between Americans or foreigners legally in the United States.

“Most were unintended,” according to The Post. “Many involved failures of due diligence or violations of standard operating procedure.” Even if the problems were unintended, sloppiness certainly is no excuse: The infringements are no less wrong, no less a breach of individual privacy and no less intolerable.

The larger the scope of a program, the greater the chance that something will go wrong, and the more opportunities there are for something to go wrong. Congressman Peter King, R-N.Y., defends the program, saying that the situation is being blown out of proportion, that the rate of error is minuscule.

Maybe so; however, since the NSA program seeks to find a few fake grains of sand on a beach, and involves millions upon millions of records. For every million records, 10,000 mistakes can be made, affecting the privacy of 10,000 Americans, and the success rate is 99 percent.

Even if such gargantuan programs are run efficiently and competently, they are examples of unjustified government excess, and should not be allowed.

James H. “Smokey” Shott, a resident of Bluefield, Va., is a Daily Telegraph columnist.

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