Sonny's Corner

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Sonny Foster"Sonny's Corner" is a regular column in Prairie Fire, featuring commentary on civil rights and justice issues. Our friend and Omaha colleague, Joseph P. "Sonny" Foster, died suddenly at age 54 in August 2005. He left an uncompleted agenda, as did many of our civil rights and justice mentors and heroes. We shall attempt to move forward on that unfinished agenda through this column.

By Laurel S. Marsh

Many years ago I worked for the Girl Scouts. The job came with a camp attached, and one of my first tasks was to find a caretaker. I hired a recently retired farm couple, both 35 years my senior. As cell phones, calling cards and e-mail didn’t yet exist, staff that made long distance calls for their jobs kept track of them and were reimbursed accordingly. I asked for a copy of employees’ phone bills to verify the reimbursements. This is where I learned about the politics of privacy.

The caretakers took me to task for asking for information that was just none of my x?8#% business! They would list the calls for which they were owed separately, but I did not need to see the other information on the bill involving personal calls! I had unknowingly encroached on their private lives and insulted their integrity.

Now I am the executive director of ACLU Nebraska, an organization whose primary mission is to defend and promote the individual rights secured by the U.S. and Nebraska constitutions. One of our national emphases is the interplay be­tween cutting-edge technology and civil liberties. ACLU promotes responsible uses of technology that enhance privacy and freedom and opposes those that undermine our freedoms and move us toward a surveillance society. Now we have cell phones and e-mail, and computers that allow us to simultaneously see and talk to loved ones half a world away. We have computer chips that identify pets and livestock and GPS systems that help us navigate in unfamiliar cities. What barriers need to be in place so we can enhance and control the uses of these technologies? What public discussions on the use of technology are being held right now?

Several bills under consideration by the Unicameral would encroach on our privacy. LB 229, introduced by Senator Fischer, puts Nebraska’s Department of Motor Vehicles (DMV) in a position to comply with Federal Real ID laws. Real ID standardizes individual state drivers’ licenses and state ID cards, creating a de facto national identity card. Two years ago, Nebraska passed LR 28, which formally asked Congress to rethink the wisdom of the Real ID law. Though LB 229 would not allow those in other states to reach into Nebraska’s database for information on individual Nebraskans, this is a subject that demands watchfulness. The decision to implement a national identity card should be made at the federal level and only after complete and forthright discussion. It should not be “back-doored” through the states.

One of the problems with permitting information to be stored on drivers’ licenses is that of function-creep. LB 261, introduced by Senator Rogert, would allow some merchants to harvest and store in databases information from the machine-readable strip on the back of your drivers’ license. This creates a tempest in a teapot. Though the information in the machine-readable strip is largely the same as that on the face of your license, LB 261 blesses the precedent of statutorily permitting private collection and storage of data required of Nebraskans by state government for state government purposes. We should not set this precedent. Doing so puts private information at risk. Once you allow some nongovernmental use of drivers’ license data, how will you say “no” to the next request?

LB 496, introduced by Senator Fulton, would allow the use of red-light cameras to catch and ticket those who run red lights. ACLU Nebraska opposes the installation of red-light cameras as violating the Con­stitution in two ways: privacy and due process. While the invasion of privacy occasioned by LB 496 may seem minor, any implementation of a system that leads to the widespread installation of cameras in a city cannot be ignored or minimized. As surveillance cameras of any kind become more ubiquitous, a further desensitization of privacy rights is inevitable. Jurisdictions that have experimented with surveillance cameras and red-light cameras have found these devices lead to horror stories involving gross violations of citizens’ privacy. You can read some of these at http://www.youarebeingwatched.us. They include: a man and woman caught on tape in an amorous moment on top of a deserted building in New York City; British police using the cameras to zoom in on nude people and later passing the pictures around to friends over drinks; Washington, D.C., police using cameras to record and intimidate peaceful, legal protestors.

To be fair, most of the known privacy violations have grown out of general surveillance cameras rather than red-light cameras used for traffic tickets. But even the sorts of cameras proposed by LB 496 have led to privacy violations. Any Internet search of “fatal car crash video” will produce hundreds of links to Web sites that show the final moments of human beings killed in an auto accident that was captured on a government traffic camera. Inevitably, such footage is leaked to press and public. The surviving family members of the deceased cannot control the illicit use of their loved one’s death to entertain ghoulish-minded people once a government employee has copied the images. New Jersey, for example, faced expensive lawsuits from family members after a fatal crash video was leaked, and the state also had to sue media outlets and Internet sites (including CNN, YouTube and others) to try and force them to take down the footage.1

Proponents claim traffic safety is the over-arching concern. This flies in the face of our standard that a person is presumed innocent until proven guilty. A camera may show my car running a red light. Does this mean I am the driver? Will the car pay the fine, accrue points against its drivers’ license, pay an increased cost for its insurance or deal with the overarching mess of a mistake? If our standards of guilt and innocence can be reversed for this type of occurrence, will they be reversed for other things? The use of red-light cameras erodes Nebraskans’ basic rights in subtle ways and turns our Constitutional expectations on their head for the sake of traffic safety. We should use other, more common sense and cheaper laws that do not affect our rights.

Individual privacy rights have been recognized by our U.S. Supreme Court. The Supreme Court, beginning as early as 1923 and continuing through its recent decisions, has read the “liberty” guarantee of the 14th Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage and termination of medical treatment. (See “The Right of Privacy: Is It Protected by the Constitu­tion?”) Thus, individuals and couples can use contraception. We can govern our end-of-life decisions through the creation of living wills or durable powers of attorney for health care that recognize such situations. We can choose not only our own medical treatment but the treatment of our children. We can guide the education of our children by choosing to send them to public schools, private schools, parochial schools or even teaching them ourselves at home.

The most definitive statement by a Supreme Court justice on the subject of privacy can be found in Justice Brandeis’ dissent in Olmstead v. U.S. (1928): “The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality—the right to be left alone—the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man’s home and privacies of life. This is a recognition of the significance of man’s spiritual nature, his feelings, and his intellect.”

It is time for us to take our lawmakers to task for asking for information that is just none of the state’s x?8#% business. Our collective safety and security are enhanced by respecting, not circumventing, our individual privacy rights. Our private lives, the very core of our individual freedom, are just that, private.

 

Notes

1. Charles Toutant, “Turnpike Authority Settles Suit Over Internet Posting of Fiery Crash Video, “New Jersey Law Journal” (May 30, 2007).

 

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