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The Justice Department’s plan may be legal, but it’s politically unacceptable.

Another day, and another of Leviathan’s tentacles is exposed for all the world to see. This time the culprit is the Drug Enforcement Administration, and the target is the American motorist. The Wall Street Journal has the scoop:

The Justice Department has been building a national database to track in real time the movement of vehicles around the U.S., a secret domestic intelligence-gathering program that scans and stores hundreds of millions of records about motorists, according to current and former officials and government documents.


The instant reaction to this news has been mixed. As might be expected, the civil libertarians have cast the measures as the latest chapter in America’s slow descent into ubiquitous security theater. Before long, they have proposed, we will be living in Richard Brautigan’s country; still free in many ways, yes, but living our lives on camera rather than in camera, and raging impotently as we are woven slowly into an irreversible “cybernetic ecology” and “all watched over by machines of loving grace.” The government is spying on cars? Naturally. And soon they will have graduated to ankle bracelets, and then . . .


Those who are more interested in security than in liberty, meanwhile, have taken precisely the opposite approach. Because the state is acting in the public square, they note, there is no obvious Fourth Amendment violation here. In consequence, they establish, there are no rights being violated per se, no codified principle is being undermined, and it will be almost impossible for opponents of the scheme to mount a challenge in court. Their bottom line, if I’m reading it correctly, is that this isn’t a question of “privacy” as we traditionally understand it, and that it should therefore not be inspiring knee-jerk condemnation or appeals to American radicalism.

All told, I cannot say that I am convinced by this latter argument. “It’s legal” is a convincing rejoinder when the question is “May the government do this without falling foul of the Constitution?” But it is rather irrelevant when the inquiry is “Should the government be doing this at all?” Effectively, defenders of the DEA are telling us that we are dealing here with a political, not a legal question, and they are drawing a crucial distinction between the public and private realms. That’s fine. But, there being a difference between what is legal and what is right, they are not making a case for its acceptability. Given the axioms of contemporary jurisprudence, it would not be illicit for the federal government to impose a flat tax of 90 percent, or to fill the national parks with sulfur, or to insist that gasoline contained at least 40 percent chocolate. Nor, for that matter, would it violate the law for the feds to hire 10 million secret police to keep an eye on California. Nevertheless, such measures would be incompatible with the presumptions and expectations of a free society, and we would expect the people who populate that society to push back. Why not here, too?


Within a system of ordered liberty, there is of course some room for the state to monitor public spaces and to keep an eye on those who are suspected of wrongdoing. Contrary to the suggestion of my friend Gabriel Malor, I do not in fact wish to “live in a world where the gov’t must pretend to be blind,” and nor do I consider that there is anything inherently wrong with the government’s electing to watch a person “drive around in public.” But I do think that the details of that surveillance really matter. Simply put, I am quite happy to live in a world in which, in the course of acting locally and in response to a discrete threat, the state is able to thwart the plans of those who would harm the innocent people. At the same time, I do not want to live in a world in which the state films everybody in public as a matter of unprovoked routine. As so often, the key here is necessity. Can the security forces intrude upon my liberties in a genuine emergency? Absolutely. Should they be watching or recording the movements of private citizens absent a specific, time-limited, and easily explicable reason to do so? No, they should not.



Whether the DEA can offer a plausible justification for the width of its net seems doubtful. Per the Wall Street Journal, “the primary goal of the license-plate tracking program, run by the Drug Enforcement Administration, is to seize cars, cash and other assets to combat drug trafficking.” Of late, however, “the database’s use has expanded to hunt for vehicles associated with numerous other potential crimes, from kidnappings to killings to rape suspects,” and the “DEA has spent years working to expand the database ‘throughout the United States.’” The system, the Journal notes, now has more than 100 cameras, and it continues to expand. How extensive does the federal government hope its reach will be? Even Idaho has been invited to participate.


One can see here how mission creep works in action. First, an agency establishes a program to deal with a specific threat: in this case, drug cartels on the Mexican border. Then, it realizes that its system could be more generally useful to the powers that be. Quickly, the reasons given become mawkish and emotive. “We need this,” advocates will say, “or we can’t rescue kidnapped children.” And, eventually, we end up with a system of “just in case” that is invariably justified with the old line that if you aren’t doing anything wrong you shouldn’t worry about being watched.

Well, I’m not doing anything wrong. But I do mind being watched — yes, even in public. And so, after a point, does everybody. Over at Hot Air, a sympathetic Jazz Shaw reminds his readers that “your right to privacy essentially drops to zero once you leave your home and go out in the public square.” This is true. But presumably Shaw would not endorse everything that the state chose to do in public? Would he be fine, for example, with a vast team of anti-mass-shooting police that monitored all concealed-carry holders once they had left their homes? How would he feel about a satellite system that could recognize citizens carrying wads of cash and track their forays in real time? And would he endorse the introduction of high-definition cameras onto all residential streets if the move were rationalized as a means by which the state could weed out and prosecute those guilty of domestic violence? If not, why not? He’s not doing anything wrong.

Shaw sums up his case by asking, “What is it that is so private about driving your vehicle on the taxpayer funded roadways that we don’t want that information recorded?” This, I think, is an easy question to answer. Because they are public, I certainly have no legal right to use the roads; and nor, for that matter, do I have a right to be ignored as I follow them. And yet there is only one way that I am able to travel to most places in this country — and that, in one form or another, is by car. To permit our employees in the bureaucracy to watch and record our movement on the roads is to establish as a matter of public policy that it is impossible for one to go anywhere in the United States without being observed by those who enjoy a monopoly on legitimate violence. Is that really how the land of the free is supposed to work?


There are eerie parallels here with the debate over the NSA and its metadata-collection program. Because the state is not delving into the content of most communications, the NSA’s apologists propose, those whose information is captured have nothing to fear. Superficially, this argument has much to recommend it. And yet, as the Electronic Frontier Foundation has wisely pointed out, all is not quite as it seems. As a matter of fact, one does not need to read the details of a given exchange to obtain useful and sensitive information about its participants. Just as frequent calls to an AIDS clinic or to a firm of bankruptcy lawyers can tell us a great deal about a person and his private vulnerabilities, so recurrent visits to a given place can betray confidences that most people do not want betrayed.

Even if we willfully ignore that datasets can always be hacked and stolen; that not all those who have access to real-time or recorded information are virtuous; and that, governments often being terrifying, it is our Burkean duty to “augur misgovernment at a distance and snuff the approach of tyranny in every tainted breeze,” the onset of quotidian mass-surveillance in a country that prides itself on its limited government strikes me as being rather unseemly. As our founding documents confirm, the federal government is the creation of the people, and it is charged with fulfilling only those functions that those people have delegated to it. Watching us all around the clock, as one might a consumptive child in a hospital incubator, is nowhere included within its brief.

— Charles C. W. Cooke is a staff writer at National Review.