Law Enforcement and Privacy Interests Clash on Technology
By DAVID W. CHEN
October 15, 1995
When the police in West Windsor, N.J., arrested Mauro I. Donis last January, it was not because they observed Mr. Donis violating any laws as he drove along U.S. Route 1, but because a patrol car computer scanner determined that he had a suspended driver's license.
Now, the scanners have become the focus of a novel lawsuit in which Mr. Donis argues that the police singled him out arbitrarily -- without reasonable suspicion or probable cause, and that the subsequent computer inquiry into his driving and criminal records amounted to an illegal search.
The case, which is winding its way through the Appellate Division of the New Jersey Superior Court, is the latest of a small but growing number of legal actions challenging police use of computer scanners, or mobile data terminals. It is yet another chapter in the larger debate over just how far high-tech policing can go without trampling over people's constitutional rights.
Some of these machines could well be props in a James Bond movie: long-range eavesdropping devices that, placed in a briefcase, pick up conversations a football field away, or infrared radar monitors that, mounted on a car, can detect weapons on a person a half-mile away.
For law enforcement officials, they are new-generation weapons in the war on crime that enable the police to better protect the public, even at the expense of a little privacy.
But for civil libertarians, they conjure Orwellian images of Big Brother armed with technologies that are subject to abuse and prone to error.
"As this new technology comes along, it's going to raise all sorts of serious privacy issues," said Wayne LaFave, a professor at the University of Illinois College of Law who wrote "Search and Seizure" (West Publishing Company), the principal reference work on the subject. "The availability of modern technology to law enforcement may require some rethinking of the Fourth Amendment rules governing the police."
Where the mobile data terminals fit into this debate is just starting to unfold in the courts.
Last year, the Arizona Supreme Court ruled that a clerk's failure to delete an expired warrant for Isaac Evans -- which led to Mr. Evans's arrest and the subsequent discovery of marijuana in his car -- required the suppression of the marijuana evidence. The Arizona court noted that "as automation increasingly invades modern life, the potential for Orwellian mischief grows." In March, the United States Supreme Court reversed that decision in Arizona v. Evans, concluding that computer mistakes should not hamper the good-faith efforts of police. But in July, the Florida Supreme Court ruled in a separate case that a computer error -- made by the police, not a clerk -- necessitated the suppression of evidence.
In New Jersey, there have been at least three cases in which motorists who were not observed to be violating any laws were nonetheless arrested based on information obtained through computer scanners. In one, State v. Lovenguth, a plea bargain was struck; the other two, State v. Donis and State v. Lewis, are expected to be argued before the state's appellate division in the next month or so.
"The Fourth Amendment is constructed to protect the citizenry against arbitrary, capricious and unreasonable acts of the government," said Roger Martindell, a Princeton, N.J., lawyer who is defending Mr. Donis. "This is an arbitrary, capricious and unreasonable act."
Some scholars disagree. They say that computers, if used properly, merely short-cut existing methods for searching motor vehicle, criminal and other records, and do not constitute unreasonable search or seizure.
"I can understand how, in some set of circumstances, an objection might be made that the practice is open to question because it is being done arbitrarily," Professor LaFave said. "But since the Supreme Court has held there is no seizure even when an officer is chasing someone with the obvious intention of making a seizure, unquestionably the officer's act in staying in the driver's general proximity until the computer hit pops up on his screen is itself unobjectionable."
Law enforcement officials rave about the computers. Instead of communicating via radio with a dispatcher who may be deluged with calls, officers can type license plate numbers into their car computers and gain instant access to the appropriate records. Perhaps only 10 percent of the nation's police departments have the computers, which cost $15,000 each, but more will likely follow as that cost declines.
But civil libertarians fear the technology is ripe for abuse. They worry that the terminals may contain erroneous information or may be compromised by computer hackers. They fear that police could discriminate against minorities, the poor or those whose appearance they do not like by singling out selected neighborhoods or people.
"They should not be able to go out willy-nilly to investigate everyone on a whim or a hunch," said David Banisar, a policy analyst with the Electronic Privacy Information Center, an advocacy group in Washington. "I mean, the British in 1776 were saying, 'We're trying to investigate illegal smuggling and you only have to worry about it if you're guilty.' But they were investigating everyone's house."
Technology proponents dismiss such talk as neo-Luddite arguments based on the hypothetical rather than the practical. "You pick a case where it makes a difference -- like the Polly Klaas kidnapping or the arrest of Timothy McVeigh -- and you balance that against 9 million cases where nothing is at stake, and people are worrying that Big Brother is looking down at them?" said Robert Weisberg, a law professor at Stanford University.
Mobile data terminals are not the only invasive technology, say privacy advocates. Privacy groups from Europe and the United States convened in Copenhagen last month to discuss "Advanced Surveillance Technologies," which included, for example, highly advanced gun detectors, long-range eavesdropping devices and closed-circuit television.
The development of some of these technologies is being financed by the National Institute of Justice, the research arm of the Justice Department. The institute's director of science and technology, David G. Boyd, is particularly sensitive to privacy gripes.
"My general reaction is, if you want to make it impossible for the police to do their job, then you might as well say everything's an invasion of privacy," Mr. Boyd said. "But it doesn't do us any good if we come up with a wonderful piece of technology if the perception is such that it's likely to produce a riot."
As a result, the institute meets occasionally with groups such as the American Civil Liberties Union, Handgun Control, the National Rifle Association and the League of Women Voters to review the latest technologies. And it has a Liability Task Group to consider constitutional issues. Mobile data terminals were discussed for the first time at the September meeting, said Mr. Boyd.