PRIVACY A VICTIM OF THE DRUG WAR Wired News,

WASHINGTON -- When Indianapolis police stopped James Edmond and Joell Palmer
at a drug checkpoint two years ago, the two men didn't merely get peeved.

They got even. Edmond and Palmer filed a federal lawsuit claiming the
drug-stop violated the Constitution's rule against unreasonable searches,
and the Supreme Court recently agreed with them in a 6-3 ruling
[Indianapolis v. Edmond, 99-1030].

But privacy scholars caution that the decision is only a minor victory for
the right to be let alone, saying that the 30-year old war on drugs has
gradually but persistently eroded privacy rights offline and online.

Government officials have repeatedly warned of "drug smugglers" and "money
launderers" while asking for encryption export controls, increased wiretap
powers, and the authority to conduct infrared scans of homes without search
warrants. The FBI claims its controversial Carnivore system is a big help in
narcotics investigations.

"The Fourth Amendment has been virtually repealed by court decisions, most
of which involve drug searches," says Steven Duke, a professor of law at
Yale University.

Duke is talking about the Fourth Amendment's prohibition against
"unreasonable" searches and seizures -- a phrasing that permits courts to
decide what kinds of searches are reasonable or not.

Since the 1970s, the Supreme Court has largely sided with law enforcement's
views, and the justices over time have handed police more surveillance and
search authority.

The high court has said, for instance, that a search based on an invalid
warrant is perfectly OK as long as police acted in "good faith." In Oliver
vs. U.S., the justices ruled that police can search a field next to a
farmhouse for marijuana plants, even if "No Trespassing" signs are posted
and the police trespass was a criminal act in itself.

Duke believes the court's ruling in the drug-stop case is mildly
encouraging, but not much more. "The Supreme Court's decision is a ray of
hope," Duke says. "I would hope that the pendulum might swing a little in
the opposite direction. But I don't think we'll get back much of the privacy
we've lost. I'd be very surprised if we did."

One case that the Supreme Court has agreed to review this term, Kyllo vs.
United States, will determine whether police can scan homes from afar --
without a warrant -- using a thermal imaging gun. The practice is becoming
increasingly common as cops use the devices to hunt for heat patterns that
could indicate pot plants in someone's basement.

The Ninth Circuit Court of Appeals had ruled that "we find no violation of
the Fourth Amendment" when police used the Thermovision 210 to examine Danny
Lee Kyllo's home and convict him of one count of "manufacturing" marijuana.

Defenders of the drug war say that their strategy has worked.

Barry McCaffrey, director of the White House Office of National Drug Control
Policy, last month welcomed a survey saying that drug use among teens had
declined. The White House claims that unapproved drug use costs the country
52,000 deaths and over $110 billion a year.

"This is very good news for our nation and our society," McCaffrey said at
the time. "It means America's team effort to get the message out on the
dangers of drugs is working."

In October, McCaffrey said that "support of sound law enforcement has caused
drug-related crime to plummet."

The Justice Department says its surveillance procedures protect individual
rights. "The procedures that we have in place have safeguards to protect the
privacy of the individual," spokesman John Russell said. "We are aware of
such criticism."

Perhaps the most striking intersection between the drug war and privacy is
in a rather mundane area of the law: wiretapping.

In 1968, state officials conducted 174 wiretaps and the feds none, according
to statistics from the Administrative Office of the U.S. Courts. By 1999,
three decades after President Nixon kicked off the drug war, the number had
ballooned to 1,350 wiretaps, with a breakdown of 749 state and 601 federal.
Not one request was denied.

By last year, the vast majority of the wiretaps had become
narcotics-related: 978 of 1,350, according to government figures.

"The expansion of federal wiretap activity and authority, which are two
distinct concepts, is significant," says Marc Rotenberg, director of the
Electronic Privacy Information Center. "It is clearly the case that the war
on drugs has increased the number of wiretaps conducted and the number of
circumstances where wiretaps can be conducted."

Law enforcement's concern in the early 1990s over being able to eavesdrop on
digital phone systems prompted Congress to approve the Communications
Assistance for Law Enforcement Act, which is currently snarled in federal
court proceedings.

In April 1997, FBI Director Louis Freeh asked a Senate appropriations
committee for $100 million to pay telephone companies to rewire their
networks, as required under CALEA.

His reason: the war on drugs. "In 1995, state and local law enforcement
accounted for 44 percent of the applications for wiretaps in criminal
cases," Freeh said. "The loss of these capabilities would be especially
devestating to the nation's efforts to combat drug trafficking."

The FBI's commitment to the drug war also buttressed the decade-long
prohibition on posting encryption software on the Internet or shipping such
products overseas, two restrictions that were not partially relaxed until
about a year ago.

A former FBI field agent, Freeh has spent much of the his time in office
complaining that the widespread availability of encryption will harm the
drug war.

Freeh told a Senate panel in June 1997 that "uncrackable encryption will
allow drug lords, terrorists and even violent gangs to communicate with
impunity." He predicted that rescinding regulations would let crypto
"proliferate to the point where any kidnapper or any drug dealer could
purchase it off the shelf and connect up with a network which would make all
of those activities covert."

Attorney General Janet Reno, at an October 1999 press conference, warned
that the feds needed backdoors into encryption products. "As more and more
drug traffickers and others engaged in organized crime and other activities,
including terrorism, encrypt their communication, it is going to be more and
more difficult for law enforcement," Reno said.

Other examples of drug-related surveillance:

The Clinton administration has used the drug war to justify the FBI's
Carnivore surveillance system. "Carnivore is, in essence, a special
filtering tool that can gather the information authorized by court order,
and only that information," Deputy Assistant Attorney General Kevin
DiGregory said in July. "It permits law enforcement, for example, to gather
only the e-mail addresses of those persons with whom (a) drug dealer is
communicating."

The House of Representatives last year rejected a bill to bolster financial
privacy by a 299-129 vote. "Say no to the dope dealers," Rep. Maxine Waters
(D-Calif.) said in a floor speech at the time.

An anti-methamphetamine bill in Congress this year would have made it a
crime to link to illegal drug-related websites and would hand police the
power to enter homes to do secret searches.

The conservative group Americans for Tax Reform in September sent a letter
to Congress saying that the U.S. Customs Service needs the ability to open
packages to search for drugs. The letter quoted from a popular marijuana
seed website, which advises customers to avoid "UPS, Federal Express or any
other overnight express service" and use the post office instead.

The FBI last year blocked a Canadian firm, TMI Communications, from selling
mobile telephone service in the United States. "The nightmare scenario for
us is that word gets around in the drug-trafficking community that the thing
to do if you are a Detroit drug trafficker or a New York one or a New
Orleans one, for that matter, is to go to a telephone reseller in Toronto,"
a Justice Department official told Canada's National Post.

British police this month suggested that the government record information
on all telephone calls and e-mail messages for seven years. The stated
justifications: "the use of computers by pedophiles to run child pornography
rings, as well as terrorism and international drug trafficking."

Given this trend, Yale's Duke is hardly optimistic. "I'm surprised they
haven't restricted their possession of anti-bug devices," he said. "But
that's coming. The government will try to limit our ability to defend
ourselves against invasions of privacy."