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Is there such a thing as privacy in America?

Photo courtesy of Flickr user Jonathan Macintosh

Pulitzer Prize winner David Shipler has been a New York Times correspondent in Israel and Moscow. In his two most recent books, released earlier this year, he turns his attention to the erosion of civil liberties in the United States. In Rights at Risk and The Rights of the People, Shipler argues that both the War on Terror and the War on Crime have allowed the government to seep into Americans' personal lives in unconstitutional ways. Shipler discussed his new books with KALW's Criminal Justice Editor, Rina Palta.

RINA PALTA: A lot of people, I guess, associate the decline in civil rights for the purposes of security as associated with the post-9-11 era, and I think you say that it started even before then.

DAVID SHIPLER: Yes, it did. And certainly if you look at the Fourth Amendment, for example, which governs the government's ability to do searches of you or surveillance. The book I wrote about that goes into pre-9-11 situations in which ordinary crime was the reason for relaxing restraints on the police. So I spent time with police in Washington, D.C., two units in particular, an undercover narcotics squad and a guns squad. The guns squad's job was to get guns off of people; it was illegal for them to have guns on their person, so in the middle of the night they'd go off and they would arrive in black neighborhoods, pull up in marked cars, the police were wearing uniforms, because they wanted to see how people reacted when they arrived. And the way people reacted, they thought, indicated whether they had a gun or not. What happened, in fact, was that young men standing around on a warm night would just pull up their t-shirts without even being asked to show that they didn't have guns. Police officers would go up and they'd say, you know, "Good evening, gentlemen, got any drugs or guns this evening?" Sort of like, you know, "Can I bum a cigarette?" And then they'd chat 'em up and they'd say, "Can we just do a quick search?" And they would pat them down. Under the law, police do not have the authority to frisk you on the street unless they have reasonable suspicion to believe that you're armed, but they went ahead and did this, mostly because people acquiesced, I mean, they didn't object. They might have objected inside their own heads, but they didn't overtly say, "You can't search me." If they had, the police would not legally have been able to do that. Basically, what this means is that the Fourth Amendment, as one federal judge said to me, he said the Fourth Amendment is practically non-existent in criminal law anymore because the courts have been so permissive, they've allowed the police to do searches in so many situations without warrants that the Fourth Amendment has really been gutted.

PALTA: I was hoping you would talk a little bit about the Brandon Mayfield case, and kind of how that fits into your narrative in the book.

SHIPLER: Brandon Mayfield was a Portland, Oregon lawyer who was mistakenly identified as having a fingerprint on a plastic bag of detonators found near the Madrid train bombings. The Spanish national police found the print on the bag, sent it around through Interpol, it arrived at the FBI, and the FBI lab in Quantico, Virginia used a computer system to generate about 20 possible matches. They found what they thought was a match, and identified it as belonging to Mayfield. When they found out that Mayfield had converted to Islam and went to the same mosque as some men who were locked up for terrorism because they had tried to get to Afghanistan after 9-11 to fight with the Taliban – this group was called "The Portland Seven" – they thought they had their man, and they sent his print to the Spanish national police, who said, "No, it's not a match." And the FBI was so determined to make it a match that they kept sending agents, at our expense as taxpayers, to Madrid to try to persuade the Spanish police that this was a match. After they got the print, they used a secret warrant – this is the Foreign International Surveillance Act, FISA. It's a law that was put into effect to protect privacy in the United States from intelligence gathering without good cause. And this law was amended and loosened after 9-11. So the FBI, with a warrant, did what they called sneak-and-peak searches. They sent people into Brandon Mayfield's home when he wasn't there and they copied his computer hard drives. They took samples of DNA. They took 300 or some photographs, cigarette butts. They also left some telltale signs of their presence. So Brandon had a kind of eerie feeling that he was being watched. He actually called the police and the police asked if he wanted them to do anything, was anything missing? And Brandon said, "Nothing seems to be missing, but it's really strange, the whole thing." And what was really troubling about this, I think, in the end, was the fact that once they had developed a theory of the crime – a theory of Mayfield's involvement – they refused to acknowledge contradictory evidence. For example, Mayfield had not been outside the United States for ten years. And he didn't even have a valid passport. And that might have been a tip off that he didn't go to Madrid and handle detonators and a plastic bag. But instead of accepting that, the FBI  concluded that he must have traveled under an alias with forged documents. So they were very determined to see Mayfield branded as the culprit and it was only after the Spanish national police actually found the person whose fingerprint was on the bag in Madrid that Mayfield was cleared. Otherwise, I think he'd be in prison right now.

PALTA: Is that kind of thing exceptional, or has this been happening a lot?

SHIPLER: You know, we don't know because the FISA warrants are secret. And the searches are secret. So we don't know the extent to which innocent people have been placed under surveillance.

PALTA: This is kind of an era where our norms about privacy are changing a lot. Google reads our email already, just to decide what advertisements to show us. And I kind of wonder, I mean, there's already been a certain segment of the population who's always said, "What's the harm? If I'm not doing anything wrong, who cares if the government's reading this or that of my personal correspondence?" And the norms seem to be going even more that way. So is it true that we're coming to the point where Americans maybe don't care if their privacy is being compromised for public safety.

SHIPLER: First of all, if you asked Brandon Mayfield, the lawyer in Portland, Oregon, whether you don't have anything to worry about if you're doing nothing wrong – he was doing nothing wrong – he was jailed. He came within an inch of being prosecuted for terrorism. It was only the Spanish national police's insistence that his fingerprints didn't match that saved him. So I don't think that that's a good response. That means you trust the officials in government enormously to do the right thing, to be intellectually honest, to test evidence. And I think we know from our own history, as well as the history of other countries, that the system of freedom depends on checks and balances on institutions that are built into the system, not on the good will of particular individuals. At the Constitutional convention, James Madison said famously, "All men having power ought to be distrusted to a certain degree." And nothing has changed. So it's a dangerous moment, I think, in our history, when the surveillance is invisible and therefore we're not very concerned about it.

Rina Palta reports on criminal justice for KALW News. Through stories of those affected by the system, she hopes to bring insight to an often misunderstood, polarizing, and politicized issue. Rina came to KALW from a print background, having worked in magazines for a number of years before being pulled into broadcast while earning a masters degree at UC Berkeley's School of Journalism. Along with KALW, her work has been published in Mother Jones magazine, the San Francisco Weekly, and Hyphen magazine. Rina edits and writes for KALW's criminal justice blog, The Informant, where you can find news and analysis on all aspects of California's criminal justice world.