By Matt Oldham and Robert Oldham
We live in a scary world. State security is here to protect us from terrorists, thieves, assassins, and international drug cartels. Every day, brave men and women put their lives on the line to protect the rule of law in a chaotic world. But what happens when the police state itself becomes a threat? Americans are becoming increasingly aware of the recent militarization of police. In order to protect and defend citizens, the police are now utilizing M16 assault rifles, armored vehicles, and intrusive SWAT tactics that would typically be reserved for a war zone.
Moreover, we are constantly made aware of warrantless raids in the media as well as the increased ability of security forces to wiretap telephones and spy on internet activity. Many politicians, news outlets, and concerned citizen groups oppose the rise of a security state since keeping communities safe may create excessive government intrusion, endangering dearly held constitutional protections.
Gone are the days of the amicable patrolman as the face of law enforcement. The security state nowadays is characterized by efficient and deadly warrior policemen clad in camouflage and NSA computer spies. This new image is due to the federal government’s subsidization of crusades against drugs and terrorism which has increased the funding for the security state and expanded its capabilities.
On the funding side, programs such as the Community Oriented Policing Services and Department of Homeland Security anti-terror grants have distributed billions to militarize local law enforcement. They have supplied M16 assault rifles, riot gear, and armored vehicles. To maintain a watchful eye on potential criminals, funding for intelligence activities has doubled since 9/11, with $18 billion being set aside for NSA data-gathering activities.
Local police now have access to military training and equipment, best exemplified by the proliferation of SWAT teams. They are present in 89 percent of U.S. police agencies and have increased the number of military style raids by 1,500 percent since the 1980s. In terms of data surveillance, nine major technology companies have given the NSA access to their servers to further its internet surveillance program PRISM. In 2012, PRISM was able to generate 77,000 intelligence reports for analysts to search for threats.
The consequences of an omnipresent security state that is capable of cracking down more effectively than ever before have been mixed at best. The police have been increasingly deadly in the past decade given their newfound military training. More than 5,000 citizens have been killed by officers since 2001, making it nine times more likely that a citizen will meet their end at the hands of a police officer rather than a terrorist. The consequences of the police state have unsettled many Americans, seen by the public’s outrage at the militarized response to the Boston Marathon Bombing and riots in Ferguson, Missouri.
NSA spying has also been extremely controversial after wiretapping and surveillance programs were exposed in spectacular fashion by internal whistleblower Edward Snowden. Their data aggregation programs collect private information on every U.S. citizen regardless of whether or not they are suspected of criminal activity without evidence that these programs have ever stopped a terrorist attack. There is little doubt that measures that increase the state’s ability to identify and prevent acts of violence make us safer. However, there is always a delicate balance between safety and liberty. To ensure our liberties we rely on the Supreme Court to carve out limits in the law and make sure that they align with constitutional guarantees.
Up until the 2013 term, the Roberts court tended to empower the state by ruling on the side of the police when considering the limits of police activities. A 2006 ruling in Hudson v. Michigan allowed police to admit evidence even when “knock and announce” rules were violated. Earlier this year, Navarette v. California ensured that the police could utilize anonymous tips to make arrests even when there was no probable cause from their observations. This was not surprising as four current justices, including Chief Justice John Roberts himself, are official members of the Federalist Society. The Federalist Society is part of a conservative legal movement that generally supports the extension of state power, especially when it comes to security concerns. But this did not come into play in the 2014 term.
Given the Roberts Court’s record, supporters of restrained state power were both pleased and surprised by the landmark ruling in Riley v. California. Roberts wrote the opinion for a 9-0 court decision that generally prohibited police from searching digital data on a cell phone without first obtaining a warrant. This case is particularly important because it concerns both individual rights from burdensome police procedures and the role of the state in the digital age.
The Riley ruling protects individuals from invasive police procedures that have been upheld in other circumstances. The state is typically allowed to seize physical records that it uncovers in raids of suspected criminal homes without a warrant. However, because of the massive upswing in the use of smart phones and cloud storage, the Roberts Court has declared that data is different and will be subject to special rules. Because “millions of pages of texts, thousands of pictures, [and] hundreds of videos” can now be stored in a handheld device, there should be a greater expectation of privacy and the state will have to show in a warrant that there is a reasonable expectation that the data will provide further evidence.
The ruling is also relevant to the future of NSA spying programs because it rejects the government claim that metadata should not be subject to search and seizure protections. The qualitative characteristics of the data stored in the digital age can be highly personal in nature (e.g. internet history and location tracking services) and the court ruled that this should be protected jealously. Two cases, Klayman v. Obama and ACLU v. Clapper, are both coming up through U.S. Circuit Courts and ask whether or not the NSA collection programs are constitutional. In light of the Riley precedent it is likely that the Supreme Court may also decide these cases in favor of personal liberties.
It is possible that the court’s unanimity in the case was not due to a wide agreement over rolling back the state’s policing power. The case was decided in late April before opinions were to be issued and it may be that the justices simply did not have enough time to draw out more nuanced answers to the question of digital privacy. But the importance of the decision should not be overlooked. It had the dual distinction of protecting individual privacy from physical police seizures and ensuring digital security.
When citizens fear for their safety, constitutional rights are often abandoned. The executive and legislative branches of government often perpetuate this by promoting intrusive policies such as the militarization of the police and domestic surveillance programs. The judicial branch must step up in these situations and help de-escalate the state’s rising capabilities.
Upcoming cases will help determine whether or not the Roberts court is genuinely devoted to protecting civil liberties. Until then, Americans must remain vigilant and ever wary of what we are giving up for increased security.