On photographs not taken.

On photographs not taken.

Most likely, you are being watched. If you spend any time in urban areas, you surely pass by numerous surveillance cameras each day. Recent advances in computational image analysis allow the movements of every person in a crowd to be tracked.

Big Brother has hungry, hungry eyes.

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Worse, you’re probably collaborating with the invasion of your own privacy. If you carry a smartphone with a GPS device, you have – according to U.S. legal precedent – consented to be monitored. Your every movement traced, the rhythms of your life documented in exquisite detail. When you sleep, when you eat, where you shop…

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In the U.S., many people assume that the police cannot spy on them without probable cause. This is the gist of the Fourth Amendment, after all. We are ostensibly shielded from search and seizure.

Thankfully, my local library bought a copy of Barry Friedman’s excellent Unwarranted: Policing Without Permission, and I learned that this assumption is wrong. Since the beginning of the War on Drugs, our courts have issued ruling after ruling that erode Fourth Amendment protections.

If the police are allowed to stop and search people at will, they can apprehend more criminals. As a corollary, huge numbers of innocent people will be treated like criminals. In Friedman’s words:

51gDp2lcbEL._SX336_BO1,204,203,200_It is plain from what is happening on the nation’s streets, and in its airports, that Terry’s elimination of the probable cause standard has set the police loose on the rest of us. Not just to stop us, but to place their hands on our bodies and possessions. The police still ostensibly need articulable suspicion to forcibly stop people – that much is clear – but what counts as articulable suspicion is deeply suspect, and the Supreme Court has done virtually nothing to rein in this sort of conduct. The stops occur, the frisks follow almost automatically, and the bodily integrity of millions of people is violated without good cause.

Our courts have ruled in favor of Fourth Amendment violations so many times because they only hear cases in which criminals – or dudes carrying drugs, at least – were caught via illegal police behavior. The “penalty” that courts are supposed to impose on the police in these instances is referred to as the “exclusionary rule.” When the police violate the Fourth Amendment, any evidence they gather is supposed to be ignored during a trial.

But it feels bad to ignore evidence. When somebody has clearly violated the law, judges want to throw that person in jail. No, not the police officer. Violating constitutional law does not merit jail time. But if a person had drugs, and the police found them? Our judges want to put that person in jail.

Do we really want to let drug users or dealers back onto our streets?

(Hint: the correct answer is almost assuredly “yes.” Without even considering the ethical implications of what we’ve been doing, it’s pretty clear that imprisoning them endangers us all. But most judges disagree.)

And so, case by case, our judges have decided that this time, the police did not actually violate the Fourth Amendment. Our judges excel at rhetorical gymnastics. As long as a judge can argue that a particular search was constitutional, then the cops are in the clear. No evidence need be discarded. Another criminal can be locked away. Everyone is happy.

Almost everyone.

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Almost all the rich white people are kept happy, at least. Everyone who counts.

These rulings have been issued by judges considering only a single case at a time, one instance when a police officer’s illegal search found evidence of a crime. Because the “exclusionary rule” is the only penalty the courts are willing to impose on police officers – i.e., it’s exceedingly rare for police officers to be fined for their illegal activities on the job – people who were illegally searched but had not committed a crime have no chance for redress. If you’re already innocent, what good is the exclusionary rule? You don’t need any illegally-obtained evidence to be ignored.

And so it’s worth considering how often innocent people are searched. From Friedman:

… Judge Pratt got a specific answer to Judge Arnold’s question: How often do agents stop suspects and hassle them like this, only to come up with nothing? The agents in the case before him testified they “spend their days approaching potential drug suspects at the Greater Buffalo International Airport.” In 1989 “they detained 600 suspects … yet their hunches that year resulted in only ten arrests.” Ten hits out of six hundred people harassed. Less than a 2 percent hit rate. Judge Pratt concluded, “It appears that they have sacrificed the fourth amendment by detaining 590 innocent people in order to arrest ten who are not – all in the name of the ‘war on drugs.’ “ In other words, it could be you.

That was three decades ago – since then, the situation has gotten worse. Despite the Fourth Amendment, police officers can stop and search you at almost any time, for almost any reason. Especially if you’re driving a car, in which case you’re almost assuredly breaking some law. No matter how minor the infraction, at that point searches become legal.

Most of us should be aware by now that the burden of innocent people being treated like criminals does not fall upon all people equally. Our nation’s poor, as well as anybody with above-average concentrations of skin pigment, are routinely abused. Wealthy white people are free to assume that our constitutional rights are still intact.

The minor consolation? The teensy benefit of all those life-endangering stops and searches? At least people know they’re being searched.

The courts have also ruled that you do not have Fourth Amendment protections when your behavior is visible in public. If a police officer glances at you, notices you’re carrying a jay, and busts you, the officer has done nothing wrong. Which seems sensible enough. But the police are also allowed to augment their natural senses using any tools “commonly available” to the public.

If you have a fenced-in backyard, for instance, the police are allowed to fly over it in a helicopter and take high-resolution photographs with a telephoto lens. After all, any member of the public could’ve done so – lots of people have copters and telephoto spy cameras. Right? So you should have no expectation of privacy. Or, if you’re in your house, the police are allowed to watch you using heat-sensing devices. They can aim infrared cameras at the walls and watch you move from room to room. After all, infrared devices are “commonly available” as well. Many smartphones have some semblance of this functionality.

Of course, anyone who carries a smartphone is even more exposed. You have “voluntarily” given data about your location at every moment of the day to a third party. Whenever you have shared information with others, the police need only present a “reasonable suspicion” to silently siphon it from that third party. They can obtain all your data with a subpoena (a privilege explicitly granted by the 2001 Patriot Act, but already in line with court precedent), and these are invariably granted.

And the world grows spookier. Recently our legislators decided that internet service providers should be allowed to collect data on everything we do online and sell that data to whomever they want, including the government. Again, this agrees with court precedent – we’ve shared this information with third parties, and Google and Facebook were doing it already.

At least the recent bill caused more people to notice how little privacy we have.

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I collect pictures of fire hydrants. I travel a fair bit, and walk around a lot when I do, so I have seen many interesting ones.

 

But I don’t always have a camera with me. So I thought that today’s essay should be a brief paean to three lovely photographs I didn’t take.

1.) Shortly after I arrived in California, I was walking from Menlo Park to Stanford’s campus. It was, as ever, a gorgeous, sunny day. And then, just after passing the shopping mall, in front of a sparkling green field and a wooden fence, I saw a young woman and her mother standing still ahead of me. The young woman had a camera aimed at a yellow hydrant.

Later, after they’d walked on, I stopped and inspected the hydrant. There was a small anthill in the dirt nearby – presumably this was not visible in the young woman’s picture. There was an ocher stain on the hood where some paint had flaked away, but most of the yellow coat was smooth. It had the same shape and size as the vast majority on campus.

Ah! To have documentation of strangers also collecting fire hydrant photographs!

2.) Between my home and the university library, cattycorner to the bus stop where many music students wait to be ferried to the practice halls, there were two hydrants within two feet of each other for about a week. One was painted a light shade of green, the other gray. The ground around them was patchy with bare earth and course gravel. They were on a slope, the green hydrant slightly above the gray.

I had plenty of time to return home, grab a camera, and hike back to take a photograph. It was splendorous, and mirrored a dream I’d had during college, of hiking through Chicago on a fire hydrant safari and finding a street corner with four hydrants visible together, one at each vertex of the intersection.

But I grew complacent. I thought those hydrants would be paired forever! Each time I saw them, I said to myself tomorrow I’ll remember to bring a camera.

And then, one day, the gray hydrant was gone. I’ve taken people to that intersection to tell them, once, there were two hydrants together. The other was right here, right where I am standing.

If I had a photograph, people would believe me.

3.) Last week, I was driving my spouse home from work amidst a clamorous thunderstorm. It was slightly after eleven a.m. – K left work early for a doctor’s appointment. Four blocks from our house, she spotted a hydrant – with a long metal stem attached – lain supine in the grass.

I circled back so we could see it again. And said, as soon as the rain stops, I’ll jog here with a camera!

The rain stopped during our kids’ nap. K was at the doctor’s. I stayed home, reading while they slept, until she returned.

By then, two hours had passed. I ran to that spot with Uncle Max (our dog) and a camera. But the fallen hydrant was gone, the nearby hole covered up, the metallic corpse carted away.

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If I carried a smartphone, I wouldn’t have this problem. Most newer models have excellent built-in cameras. Whenever I saw a catchy hydrant, I could take a brief break from twiddling with my twitter and snap a photo. (As long as my device left me sufficiently attentive to notice hydrants.)

Instead, I have a seven-year-old flip-phone. Camera-less, text-message-less, often turned off. (And, unlike a smartphone, it actually does turn off.)

I’ve missed a few great hydrant photos. But I’ve spent less money. I’ve contributed a little less to our species’ destruction of the environment. And – though obviously I too am being watched – those hungry, spying eyes get less from me.

On government intrusion and addiction.

On government intrusion and addiction.

Midway through his review of Akhil Reed Amar’s pop constitutional law book, Jeremy Waldron introduces the following scenario:

An FBI agent starts attending a particular mosque.  After each visit, he writes down everything he saw and heard and reports to his superior. 

Is this a search?  Should the FBI agent need a warrant?fbi

I assume that many people feel icky about the idea of government agents attending a religious service in order to snoop.  I do.  But it’s unclear whether we should call this a “search.”  If not, the Fourth Amendment offers no protection.

Even if we decide that this is a search – in which case an FBI agent would not be allowed to do this without establishing probable cause – this snooping would be totally legal if done by a private citizen.  If you attend a church service and hear something suspicious, you’re well within your rights to report to the authorities.  Our constitution permits more intrusion by the general populace than by government employees.

But… what qualifies someone as being in the government’s employ?

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In jail recently, we read Virginia Adair’s “Cor Urbis.”  This poem trudges through urban decay with stanzas like:

And so to the cubicle of stench

          Past rats running for offices

          Roaches and flies feeding like bankers

                   We come fast to the heart

                   the heart of the great city.

melonThe men loved this.  The insects were being insulted… by comparing them to human bankers.  The imagery throughout this poem is simultaneously realistic – as we walk the corridor rats skitter away and duck inside the adjacent offices – and surreal – the city has fallen so far that the very rats stand on streetcorners, shaking hands, announcing their platforms, swearing “If you vote for me, I’ll clean this place up!” 

After discussing the poem, we tried writing about cities we’ve lived in as though they were bodies – in “Cor Urbis,” Adair writes that the “guns have human eyes,” the streets are “varicose thoroughfares,” and building “facades ooze and peel like scabs.”  Cancer imagery is common in literature, too, conveying that one aspect of a city or society has careened out of control…

For the exercise, I wrote a short poem about Silicon Valley as a Stepford Wife: dyed platinum blonde hair, surgically-enhanced physique, immaculately styled, exhaling money… with no soul.  One man wrote that his home town was dead.

And another participant wrote a piece that began with the line, “Bloomington, full of rats and lies.”

Bloomington: full of rats?  A large rat does live behind my compost bin.  This monstrous rodent feasts on vegetable scraps.  Each evening with our leavings I pay tribute to the Rat King!

But that’s not what our writer meant.  He was talking “rat” as in “police informant.”

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If a police officer snoops around your home, spots drugs, and then files for a warrant, we have a problem.  The officer has violated the Fourth Amendment.  Any evidence of wrongdoing is supposedly inadmissible in court, per the “exclusionary rule.”

If a private citizen snoops around, spots drugs, then tells the police… and then the police file for a warrant, based on this private citizen’s tip… they’re in the clear.  This is a perfectly legal sequence of events.  The Fourth Amendment doesn’t apply to people who aren’t working for the government.

Even if, suddenly, they are.US_incarceration_timeline

With mandatory minimums hanging over their heads, people break.  Many, brought into jail, become informants.  They aren’t considered government employees, because they receive no monetary compensation for their tips… but they receive something more valuable.  They’re being paid with their lives.

Let’s say a person’s car was searched, and the police find a few grams of a white powder… and this person has priors, and kids… and the prosecutor starts rattling off threats, if you take this to court, we can put you away for twenty years… twenty years?  For that?  When no one was hurt?  In twenty years, those kids will have kids of their own.

Of, if you cooperate, you could walk today…

In game theory, there’s a famous scenario called “the prisoners’ dilemma.“ Presumably you’ve heard the set-up: two people are each being interrogated separately by government agents.  Prosecutors have enough evidence to convict each on a minor charge, but would rather pin a major crime on somebody – that’s what brings prosecutors the publicity they need to stay in power.

If both suspects stay mum, they’ll each land five years in prison.  If both betray each other, they’ll each get ten years.  But if one stays mum and is betrayed, the talker walks and the hold-out gets fifteen years.

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According to an economist, each should betray the other.  When we draw out all the possible choices and the payoffs, we see that, no matter what Prisoner B chooses, Prisoner A will serve less time by talking (either Prisoner B has chosen “Betray,” in which case Prisoner A gets 10 years instead of 15 by talking, or else Prisoner B has chosen “Silent,” in which case Prisoner A gets zero years instead of 5 by talking).

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And so that is the choice Homo economicus – an imaginary “perfectly rational” being – would make.  Homo economicus betrays friends.  And both players serve more prison time than they would’ve if they’d managed to stay mum.

Economists agree that there is a better strategy – in the outcome described above, both suspects land more prison time (10 years each) than they would’ve if they’d managed to stay mum (5 years each) – but only in the context of the “repeated prisoners’ dilemma.”  If we play many times with the same partners, there is a powerful incentive to cooperate.  We are building a reputation.  We can signal to our friends that we are not rational.  We can stay silent when Homo economicus would not.

Of course, the mandatory minimums for drug crimes are so egregiously long that people only play this game once.  The sentences can be measured in decades – huge fractions of our lives – and we each have just one life to live.

I assume that’s why so many dudes in jail – especially the young dudes – have the words “Death Before Dishonor” crudely inked on their forearms.  In a world where people might only make these choices once, we need ways to signal our irrationality in advance.  You can trust me because I am not Homo economicus and will not act in my own self interest.

This same principle might explain why we humans are so emotional.  Most animals will fight: there’s only so much food and territory and premium nookie to go around.  And they’ll fight when threatened.  But humans launch all-out irrational vendettas.

Why?

Here’s Daniel Dennett’s supposition, presented in Freedom Evolves:

9780142003848When evolution gets around to creating agents that can learn, and reflect, and consider rationally what they ought to do next, it confronts these agents with a new version of the commitment problem: how to commit to something and convince others you have done so.  Wearing a cap that says “I’m a cooperator” is not going to take you far in a world of other rational agents on the lookout for ploys.  According to [economist Robert] Frank, over evolutionary time we “learned” how to harness our emotions to the task of keeping us from being too rational, and – just as important – earning us a reputation for not being too rational.  It is our unwanted excess of myopic or local rationality, Frank claims, that makes us so vulnerable to temptations and threats, vulnerable to “offers we can’t refuse,” as the Godfather says.  Part of becoming a truly responsible agent, a good citizen, is making oneself into a being that can be relied upon to be relatively impervious to such offers.

Not everyone is sufficiently emotional to give up five years in order to stay true to an ideal, however.  It’s especially hard while sitting around in jail, sweating through withdrawal, sleep deprived, nineteen hours a day of fluorescent light and even the brief dark merciless since that’s when the nearby schizoid man spends two hours straight rhythmically kicking his cell door…

Tortured this way, people break.  They start dropping names.

Despite the fact that we’ve given our police officers millions of dollars worth of military-grade equipment to fight the “War on Drugs,” most preliminary evidence is gathered by shaking down impoverished addicts.  They’re hauled in, locked up, and then offered a brief reprieve of freedom – during which time the police know their informants are planning to use again, which is why the offer is so tempting – in exchange for betraying their friends and neighbors.

The use of informants evades the strictures of the Fourth Amendment.  But, as a tactic in the “War on Drugs,” this is absurd.

For people to get clean and stay clean, we need stronger communities.  We need to foster more trust in people’s friends and neighbors.  Several of my friends have sobered up over the years – from meth, pills, heroin, pot, or alcohol – and every single one of them would readily acknowledge that he couldn’t have done it alone.

But the use of police informants saps trust.  Which means that, when people get out, and they are struggling to stay sober… they won’t have a community they trust to catch them.

The opiate epidemic is, in many ways, a symptom of a bigger problem in this country.  And the punitive way that we’ve been trying to fix it?  We’re making it worse.