Second of two parts.
No sooner had Americans managed to secure the right of liberty, to paraphrase Thomas Jefferson, in reining in the National Security Agency — however marginal such security might be — than we were confronted with a similar threat from yet another source.
This time it’s the FBI that’s been surveilling us in ways potentially hazardous to our constitutional rights.
The Associated Press reported last week that the FBI has been flying planes loaded with surveillance equipment over several American cities — including Washington, D.C., and locations in Virginia: Arlington, Fairfax, Garrisonville, Springfield. The planes have been listed as belonging to fictitious companies.
Aerial surveillance is nothing new. But several new twists make these flights dangerous to the privacy of innocent Americans:
» Some of the planes are loaded with sophisticated modern technology — called Stingray equipment — that allows surveillance of cellphones on the ground even when the phones are not actively being used for communication.
» Many of the instances in which such surveillance is conducted are not being approved by a judge.
Judicial approval is one way to ensure at least some kind of independent oversight of FBI activities, serving the important role of providing routine checks and balances. Judges, for instance, can determine whether the surveillance meets the standards set out by the Fourth Amendment.
Failure to submit surveillance plans to judges means that these activities are shielded from independent evaluation.
» The FBI says its surveillance activities meet its own rules and regulations. But get this: It won’t tell us what all those rules and regulations might be.
That information, reports the AP, is heavily redacted in any documents that the public is allowed to see.
Therefore, once again, there’s no oversight, no accountability — and no way to know whether the FBI is obeying not only the Constitution, but even its own rules.
Meanwhile, the FBI isn’t the only agency conducting aerial surveillance with powerful new technologies. The Drug Enforcement Administration and the U.S. Marshals Service also deploy aircraft.
The FBI says it uses aerial surveillance primarily to support ground operations — such as following a suspect who might too easily recognize that he’s being tailed by a vehicle. Such scenarios sound benign. We doubt that law-abiding Americans have any problem with aircraft following a single, designated suspect or conducting surveillance that has been approved by a judge as constitutional.
But we strongly doubt that current surveillance is limited to such parameters. We’d much prefer to see some independent oversight — from the judiciary or elsewhere — over surveillance decisions.