The Drug War and Privacy

A rundown of the most egregious privacy offenses made by the government in the name of morality:

  • Electronic surveillance. The drug war has always been a central justification for more surveillance powers, from traditionally wiretapping through modern laws such as the 1990s telecom spying law CALEA. Sometimes government agencies also seek new powers by citing terrorism but mainly use those powers in attempts to wage the war against drugs. As researcher Chris Soghoian has pointed out, if you look at the latest (2009) government reports, more than 86 percent of law enforcement wiretaps were used as part of narcotics investigations. And after 9/11, the government insisted that it needed new powers to carry out “sneak and peek” searches to “avoid tipping off terrorists” — and was granted those powers by the Patriot Act. However, records show that only 3 of the 763 “sneak and peek” warrants obtained in 2009 were for terrorism probes, while over 60 percent were for drug investigations.
  • Prescription databases. As part of the battle against prescription drug abuse, most states have created prescription drug monitoring databases that collect and store the details of individuals’ medical prescriptions, which can then be checked by police, pharmacies and doctors for “suspicious” patterns. These databases are funded by the federal government which is also “prodding” them into linking the state databases together into a single distributed national database.
  • Financial monitoring. The war on drugs led to the creation of a sophisticated government surveillance system for the monitoring of financial activities — which was later expanded dramatically on the rationale of detecting terrorist financing. Laws require any business or tradesperson to report large cash transactions as well as a variety of other “suspicious” transactions to the government, which maintains a database of those transactions. As we detailed in this 2004 ACLU report, the government can also issue sweeping orders requiring financial institutions to check for records of particular individuals or organizations, and requires a broad array of businesses to check government financial black lists before doing business with anyone.
  • Use of military in law enforcement. The drug war ultimately represents a military solution to public health problems. Perhaps it is unsurprising then that it has contributed not only to the militarization of law enforcement as police officers increasingly adopt the tactics and equipment of soldiers, but also to a growing involvement of actual U.S. military forces in law enforcement missions. Congress has eroded the nation’s traditionally strict separation of the military from civilian law enforcement, and the military is authorized to “assist” police in enforcing drug laws by providing training, equipment, bases, intelligence and research to law enforcement. Soldiers are involved in combating foreign drug operations and patrolling the borders to keep out contraband, and National Guard aircraft search for marijuana fields across the U.S. and sometimes help storm suspected domestic drug houses. These precedents have also set the stage for military involvement in privacy-problematic Fusion Centers.
  • GPS tracking devices. The courts are divided on whether the authorities can place a GPS device on a person’s car without a warrant, but some courts have ruled that the police may use these tracking devices without probable cause that you’ve committed a crime. Many of these cases are drug investigations. And the implications are significant for all Americans, because how our courts rule on this question may well determine whether our location can be tracked with our cell phones by the government without a warrant.
  • Aerial surveillance. After police arrested a man for growing marijuana by flying over and photographing his fenced-in backyard, the Supreme Court in 1986 ruled 5-4 that we do not have Fourth Amendment privacy protection from warrantless naked-eye aerial observation of private spaces. This ruling may have broad repercussions as unmanned “drone” aircraft become cheap and common.


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