Tuesday, December 27, 2005


Domestic Surveilance

I must confess something.

Even as a hippy-dippy liberal, I have no problem per se with plain-clothes/undercover (why is the NYPD insisting on making this distinction now after successfully petitioning a judge to have this distinction dropped?) attending protests, rallies, etc. After all, these are public events which anyone can and should be able to attend. If someone about happens to be a police officer and happens to be taking notes, so to speak. All the better -- maybe we'll reach out to a new constituency ;)

That being said, while I don't think the police should have to prove that they are investigating a specific crime to "spy" on a protest, they should have to establish that their is a significantly greater likelihood for specific crimes to be committed at protests than other public places where they are not "spying" on what's happening. And saying "a bunch of hippies together -- they're gonna be smoking pot" is not sufficient. The police should be allowed to "spy" on public protests (private meetings are another story) but this allowance should be periodically reviewed with hard, statistical evidence that the actual (not arrest ... if you are looking for crime, you'll find it ... if you are not looking, you oftentimes won't) rate, e.g., of pot smoking, is higher at protests than in public parks. If there is no crime for which the rate is higher, the police should not be allowed to blur the plainclothes/undercover cop distinction and should have a non-uniformed police presence no different than that in a comparably crowded park or other public place. Indeed, why should police waste resources persuing crime where none exists?

What I do have additional problems with:

(1) police officers/etc. egging on the crowd -- this is incitement and, if it occurs, should be persued as a criminal offense ... whomever hatched the scheme should be punished ... and it should be investigated like an organized crime case. Get the officers actually involved to flip (with very generous plea bargains -- e.g. a reprimand with no real consequences) and then persue the scheme upwards.

(2) evidence uncovered in "spying" being used extra-constitutionally to prosecute cases or even worse frame people

(3) persuing people in terms of guilt by association

Indeed, one problem with domestic "spying" is that it generates a lot of irrelevent information that at best is useless in criminal prosecutions and could taint real evidence in criminal prosecutions not to mention distract resources away from real criminal investigations. One has to wonder with all of these "spying" attempts, from the federal level on down, why the emphasis on techniques so unlikely to result in real prosecutions of real bad guys -- are these people really interested in keeping us safe or just looking tough? Call me a utilitarian, but before I sacrifice even the fence around the law of our Constitution, I want to see evidence that it is necessary (and that is a necessary condition for making such a sacrifice not a sufficient condition -- I am not totally a utilitarian!).

Of course, as to point #1, it is inherently difficult to spy on a protest: if a cop is too un-involved, then the cop might get discovered by his/her apathy. If the cop gets too into it, he/she risks being a criminal agitator. I would suggest that the correct posture for a police officer actually doing the spying is "I'm not here to protest, I'm just here to pick up hot chicks/dudes". I am sure a lot of people really go to protests for that reason anyway, so they won't stand out by being too apathetic, but they ought not to get too into things either, and this posture will keep them a bit aloof.

That's a great story. Waiting for more. » » »
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