Mimesis Law
26 June 2019

Maryland Might Stop Recording Conversations On Public Buses

Mar. 4, 2016 (Mimesis Law) — In Katz v. United States, Justice Potter Stewart wrote, “the Fourth Amendment protects people, not places.”  But what about people who happen to be in places, you may ask?

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

These are pretty words, and it would be great if they were true. But the history of the 4th Amendment for the past 50 years has been a story of the gradual winnowing of places from constitutional protection. It’s not reasonable, the court has held, to expect strangers not to bring drug dogs to sniff your car. Or, upon being offered a cup of tea, not to burst into your house to check closets and cabinets for hidden attackers.

And so, there is probably no legal problem with the State of Maryland’s three-year-old practice of putting listening devices on every public bus to keep an ear out for criminal activity, because there would probably be no legal problem with hiring a police officer to sit on every bus and take notes.

But, even though the Constitution might not do much to protect people’s privacy, it is refreshing to see that some legislators are genuinely uncomfortable with the government listening in on private conversations held in public. As the Washington Post reports:

“What [the Maryland Transit Administration] is doing is a mass surveillance,” [State Senator] Zirkin said. “I find it outrageous,” he said. “I don’t want to overstate it, but this is the issue of our generation. As technology advances, it becomes easier and easier to encroach on people’s civil liberties.”

This is the crux of the issue. There was a time when the best method for spying on our citizens was simply quartering soldiers in their home. But now, despite the occasional blip of privacy, listening in on conversations and watching us in public is only going to get cheaper and easier.

Any countermeasures that citizens might employ to avoid this surveillance, stuff like tinted windows in your car, encrypted web browsing, or  “suspicious” search refusals, all become grounds for further and more intrusive invasions of privacy. After all, it simply isn’t a drug trafficking case if the police officer doesn’t mention the presence of an air freshener.

And privacy is a bit like a ratchet. Expectations of privacy keep getting less reasonable because it keeps getting easier to get around those expectations. If anyone ever developed a product that could, for instance, render you invisible to public cameras, inaudible to wiretaps, and unsniffable to drug dogs, it would very quickly become illegal.

Senator Zirkin has proposed a bill that might help move things in the opposite direction, requiring that bus microphones be placed near the front of the bus and only activated in case of emergencies. But he isn’t very likely to be successful. This is his fourth run at getting rid of Maryland’s bus microphones and, so far, this is the first time he’s managed to get a bill out of committee.

Senate President Thomas V. Mike Miller Jr. (D-Calvert) indicated last week that he doesn’t like the bill and would probably vote against it because he feels the limitations could compromise security, and he does not want to incur the cost of replacing existing equipment.

Many people, of course, don’t think that this sort of mass audio recording is a big deal. They trot out the old “nothing to hide” trope.

But bear this in mind. There are a lot of criminal laws in this country. An uncountable multitude of them. And even those with the most money and the best lawyers make mistakes. A prosecutor who has access to all of your public conversations could learn any number of things about you that you didn’t even know were criminal.

Maybe the technology does not yet exist to sift through all of these conversations for the “key words” that will alert a prosecutor that you mentioned drinking a beer in your truck the other day, but some day it will. And when it becomes feasible for the government to transcribe every unsavory thought you express in any public place, you might find that prosecutorial discretion is not all it’s cracked up to be.

When that day comes, you will be glad that there are people like Robert Zirkin fighting to maintain some modicum of privacy in our public spaces. Because until we start demanding that our legislatures, rather than our courts, enforce our right to be left alone, no expectation of privacy will outlast the march of technology.

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  • In miniature, March 7 | Free State Notes
    7 March 2016 at 3:29 pm - Reply

    […] “Maryland Might Stop Recording Conversations On Public Buses” [Andrew Fleischman, “Fault Lines”] […]