Court Approves Yet Another Warrantless search


In the continuing story of our incredible shrinking 4th Amendment, the 9th Circuit Court of Appeals — you know, that allegedly liberal court — has ruled that the government can have access to your utility bills without bothering with all that pesky warrant stuff the Bill of Rights so clearly requires.

Utilities must hand over customer records — which include credit card numbers, phone numbers and power consumption data — to the authorities without court warrants if drug agents believe they are “relevant” to an investigation, a federal appeals court says.

The Comprehensive Drug Abuse Prevention and Control Act of 1970 allows the authorities to make demands for that data in the form of an administrative subpoena, with no judicial oversight. In this instance, the Drug Enforcement Administration sought the records of three Golden Valley Electric Association customers in Fairbanks, Alaska suspected of growing marijuana indoors.

“The information subpoenaed does not need to be relevant to a crime; in fact, it may be used to dissipate any suspicion of a crime,” Judge William Fletcher wrote for the unanimous, three-judge panel of the 9th U.S. Circuit Court of Appeals. “The information subpoenaed need only be relevant to an agency investigation. Energy consumption records can be relevant to an investigation into a suspected drug crime.”

The decision appears to be an end-run around the Supreme Court’s 2001 ruling requiring the authorities to obtain search warrants to employ thermal-imaging devices to detect indoor marijuana-growing operations. The court ruled that the imaging devices, used outside a house, carry the potential to “shrink the realm of guaranteed privacy.”

I really hope the Supreme Court overturns this decision, and I think they may well do that. Even Justice Scalia has a fairly good 4th Amendment record, including being in the majority in that 2001 case mentioned in the article. If not, it’s yet another mortal wound to the very idea of a limited government that must respect due process.

Comments

  1. naturalcynic says

    “The information subpoenaed does not need to be relevant to a crime; in fact, it may be used to dissipate any suspicion of a crime,”

    Awwww, that’s sweet of them, but that’s not how the 4th is suposed to work.
    Maybe the court is only trying to stimulate photovoltaic and wind energy energy industries for home use.

  2. sivivolk says

    Why the fuck can’t they get a warrant? I can see where they argue against them for certain terrorist cases, which is still bullshit, but at least there’s some kind of an argument there. At least in the article, there seems to be no argument as to why they should be allowed warrantless access to these records, just that they should have access, period. Which, you know, they could get with a warrant.

  3. says

    I’m having a bit of a hard time imagining the actual utility of such a measure, since I can imagine lots of power drains, though without a sense of scale. How does an overnight growing lamp measure against something like leaving a computer running some intensive process?

    Of course, I imagine the “utility” many would see in it is generating anomalies to prompt further needless investigation, which is one of the points behind warrants: The police have to prove the necessity of the search, instead of just mining data on people they don’t like.

  4. says

    Why the fuck can’t they get a warrant?

    Because they want to do fishing expeditions – look for places with high power consumption where the bills are serviced by the same credit card or checking account.

    It’s pretty stupid to take another chunk out of the bill of rights for this; the state of the art in growing has moved past where the cops are looking, as usual.

    But it’s a “THREAT” ZOMG!
    http://realestate.msn.com/article.aspx?cp-documentid=26924092
    Marijuana ‘grow houses’ an increasing menace
    A home that was used to grow pot can be a nightmare for a homebuyer, with problems ranging from mold to bad wiring.

  5. says

    Drugs and “piracy” (as in copyright type) seem to be used more often to reduce our 4th amendment rights than even terrorism. Apparently the possibility someone may smoke pot download a song is grounds for searching through all of our homes, computers, utilities and telecoms/ISPs and bodies (strip searches found legal even on false arrest). Yay.

  6. says

    Oh, I realize I didn’t answer the question:
    They can’t just get a warrant for “everybody”

    That’s what they want to do. They want all the records and then they’re going to massage them in a database and look for outliers. Places where the power use jumped by a huge factor, places where it’s paid for by the same bank account as a grow house… That sort of thing. They’re already getting bank transactions > $10,000 (because terrorists pay cash!) so now they can look for power consumption paid for by bank accounts that do large cash deposits. Next they’ll want (I’d actually be surprised if they don’t already have) amazon.com’s transaction records so they can match for purchases of hmi lightbulbs and power consumption, etc, etc.

    They want “total information awareness” and the judiciary has (since their personal privacy is well-protected) cheerfully gone along with it, in general.

    But it’s all for your own good. Besides, if all your behaviors are normative you’ve got nothing to hide, right? Only the rich and famous need privacy, anyway.

  7. says

    Marcus Ranum, you need a better class of pot growers. My parents bought an ex-growhouse, and the only sign of its previous life was all the extra wiring, like, everywhere. Done really well, too, because a grow-op that burns down both loses money and draws the eye of law enforcement.

  8. baal says

    Sigh. Population level screening is not consistent with a non-police state democracy. This is clearly an attempt to find pot grow houses. Fwiw the 2001 case is Kyllo if you want to read about it (link is to wikipedia’s summary, the cite to the case is there as well).

  9. lofgren says

    How does an overnight growing lamp measure against something like leaving a computer running some intensive process?

    Grow ops, even small ones, would drain a lot more power than a home PC running even very intense processes.

  10. says

    lofgren “Grow ops, even small ones, would drain a lot more power than a home PC running even very intense processes.”
    What if the grow-op is inside that PC?

  11. Homo Straminus says

    I have similar concerns as Bronze Dog. Law enforcement should’ve been asked to prove 1) that this will not lead to a large increase in false positives, and 2) that the additional spending resulting from such an increase is warranted, given what the expected rate of true positives is expected to be.

    Law enforcement rather universally doesn’t want to talk about the false-positives problem (e.g. security theatre, K9 signals, any sort of racial profiling, etc.). I would guess it’s a rather pathetic combination of “us vs them at any cost!” and plain ol’ laziness.

  12. Ellie says

    When I was a child during the Commie Under Every Bed era, our teachers all told us how lucky we were to be in the United States of America, where the government didn’t spy on the people, unlike those poor folks in Russia. Lovely fantasy, wasn’t it?

  13. Homo Straminus says

    Lol@10: That’s not what “multitasking with a computer” is supposed to mean!

  14. jakc says

    More than any other amendment, the very purpose of the 4th Amendment is to let the guilty go free, a not surprising result as this country was founded, in no small part, by men who were smuggling to evade British taxes. That the 4th Amendment ought to protect a person who is guilty of a crime from having evidence of that crime uncovered is NOT A FLAW. And yet we see, time and again, how the drug war is used to eviscerate our constitutional protections. I don’t think that the founding fathers would be surprised to learn that Americans were the first humans to travel to the moon, but they would be stunned to see how we have surrendered civil liberties. For any of the Tea Party/Ron Paul supporters out there – no, I’m not particularly concerned that Obamacare is a threat to my liberty, but if you ever want to get serious about restoring the bill of rights, give us a liberals a call. We’ll help you with the votes.

  15. Die Anyway says

    Or do as they do here in West-Central Florida… run the license plates of cars parked at the local hydroponics supply center and then raid the associated home address.

  16. wscott says

    Why the fuck can’t they get a warrant

    Honestly? Because getting a warrant takes 100 times more time & work. This is not meant as a defense – just an explanation. Never ascribe to malice what can be adequately explained by laziness.

    Law enforcement rather universally doesn’t want to talk about the false-positives problem (e.g. security theatre, K9 signals, any sort of racial profiling, etc.). I would guess it’s a rather pathetic combination of “us vs them at any cost!” and plain ol’ laziness

    QFT

  17. says

    @Bronze Dog
    “I’m having a bit of a hard time imagining the actual utility of such a measure, since I can imagine lots of power drains, though without a sense of scale. How does an overnight growing lamp measure against something like leaving a computer running some intensive process?”

    Well it’s a bit more complex than that, actually. Depending if a grower is staggering multiple crops at once (which I’ve know growers to do just to try and hide what they are doing), it can be fairly obvious if you have a decent grow setup. Grow lights guzzle way a ton of power, and almost every single grower has it on a timer. The EXACT same increase and decrease of power consumption, at the EXACT same time of day, for a period of time that is used for growing. On top of that, at different periods of the growing cycle the length of time a crop gets subject to light to changes. And most growers follow the same general cycle times (well, there are a few very common cycles used).

    For the record I am 100% against this. And I agree there is a great potential for false positives, but if an investigator knows what to look for, the growers will pop out.

  18. mithrandir says

    I think it’s that this is about a marijuana ban enforcement that really rankles. If this were about rooting out terrorists, or child prostitution rings, or even cocaine or heroin dealers – y’know, actually harmful and addictive drugs – I could at least respect the honorable intentions even as I deplored their excesses.

    But to shred the Constitution over a relatively harmless intoxicant like pot? To serve no end except to satisfy bluenoses, racists, and long-dead wood pulp magnates? Ugh.

  19. Gregory in Seattle says

    @jake #15 – More than any other amendment, the very purpose of the 4th Amendment is to let the guilty go free

    Uh, no. Every last clause of the 4th Amendment was a part of British common law at the time the amendment was ratified, and thus a part of American common law. The purpose of the 4th Amendment was to put these already extant rights into a form that could not be altered by judicial whim. In fact, most of the amendments found in the Bill of Rights already existed under US law.

    Not that this has done us any good in the long run.

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