News
Constitutional Law
Aug. 15, 2002
Keeping an Eye on the Peepers
Forum Column - By Mark Schlosberg - Dear Attorney General Bill Lockyer, In order to ensure that intelligence-gathering practices carried out in California by state, local or federal law enforcement officers respect state constitutional right to privacy, your office must take immediate action. Without response from the state Department of Justice, this precious state constitutional right could be compromised by intelligence activities encouraged by new federal policies.
Forum Column
By Mark Schlosberg
Dear Attorney General Bill Lockyer,
In order to ensure that intelligence-gathering practices carried out in California by state, local or federal law enforcement officers respect state constitutional right to privacy, your office must take immediate action. Without response from the state Department of Justice, this precious state constitutional right could be compromised by intelligence activities encouraged by new federal policies.
On May 30, long-standing federal guidelines designed to protect Americans from abusive and inappropriate intelligence gathering by the FBI were loosened suddenly and unilaterally by U.S. Attorney General John Ashcroft. Just 10 days later, the San Francisco Chronicle published a remarkable special report based on previously secret FBI intelligence documents, detailing how the FBI's "war on communism" led the agency to drift far from legitimate law enforcement concerns into politically motivated spying and smear campaigns at the University of California. These revelations highlight dangers to our freedoms posed by undercontrolled and overzealous intelligence tactics - dangers that are as real today as they were then.
In the past two months, some of the state's top elected officials, from state Senate President Pro Tem John Burton to U.S. Rep. Nancy Pelosi, D-Calif., have spoken out on the importance of ensuring that these unconscionable intelligence practices of the past not be repeated in the current fight against terrorism. For instance, U.S. Sen. Dianne Feinstein, D-Calif., recently wrote FBI Director Robert Mueller that "the recent release of revised FBI guidelines has led to understandable concern that a more powerful FBI must remain accountable and corruption-free. What safeguards are now in place to ensure that the FBI does not focus on political aims in the future?"
While it is fortunate that our public officials are raising these concerns, it is disconcerting that, to date, there has been no public recognition of the unique problems and threats created in the state by Ashcroft's new intelligence policies. California has a long and proud tradition of treasuring, exercising and taking steps to protect constitutional freedoms. Specifically, 30 years ago this November, voters incorporated an explicit and strong right to privacy into Article I, Section 1, of our state constitution. The amendment provided that the right of privacy was an inalienable right.
California therefore has drawn a line with respect to privacy, political and associational rights that government officials must not cross even with the best of intentions. Yet some of the intelligence practices now openly encouraged by the new federal guidelines cross that long-standing state line.
Without congressional hearings, input or public debate, Ashcroft eliminated or significantly loosened a number of key provisions in the guidelines controlling FBI intelligence practices. Most chillingly, the new guidelines encourage a "fishing expedition" approach to intelligence gathering by permitting federal agents to monitor political and religious activities without requiring any particular belief or suspicion that evidence related to terrorism or crime generally might be obtained. The federal government also is claiming the right to send agents to religious services, political rallies and organizational meetings open to the public both to monitor who says what and to see who is associating with whom.
As we celebrate the 30th anniversary of our state constitutional right to privacy this year, we need to remember the larger environment in which this right was created. That era, the 1960s, was in many ways defined by unchecked law enforcement and intelligence abuses, including the infiltration and disruption of the civil rights and anti-war movements. While the massive scope of those abuses was not fully exposed, public concern about government intrusions into personal autonomy and liberty was growing when state voters went to the polls in November 1972 to add the right of privacy to the state constitution.
One of the fundamental goals of this new state constitutional right was preventing law enforcement from spying on individuals and organizations or from gathering information on them in the absence of some evidence of their involvement in criminality. The first California Supreme Court case to interpret the privacy amendment, White v. Davis, 13 Cal.3d 757 (1975), recognized this fundamental goal and held that the police infiltration of classes and political associations at UCLA violated the state constitutional right to privacy. The court also noted that the "routine stationing of covert, undercover police agents in university classrooms and association meetings, both public and private, constitutes 'government snooping' in the extreme." Although 25 years old, White retains its value as precedent and continues to be cited with approval by the state Supreme Court.
The changes in FBI intelligence guidelines affect affairs outside of Washington, D.C. Since Sept. 11, the federal government has made a major push to create joint terrorism task forces made up of state, local and federal officers.
While that level of multiagency cooperation may be laudable and provide certain efficiencies, the constitutional rights of a jurisdiction must not be sacrificed in the process. State and local officers who may have formed close working partnerships with the FBI must recognize that, as a matter of law, federal leadership in Washington, D.C., encourages certain intelligence activities that the state constitution prohibits. Steps must be taken immediately to ensure that these joint terrorism task force intelligence activities, often led and directed by the FBI, do not lead to violations of Californians' privacy rights.
The state Department of Justice must take the following steps to ensure the protection of Californians' privacy rights. In the absence of direction from your office, state and local officers could be at risk of following the FBI's lead into intelligence practices that violate state constitutional privacy rights. These officers should be warned that state law, not Ashcroft, defines permissible conduct within the state. An informational bulletin issued by your office to law enforcement agencies statewide would help avoid potential confusion on this point and is necessary to protect state privacy rights.
The state Department of Justice also should encourage FBI agents to adhere to state constitutional privacy protections when gathering intelligence in the state. In announcing his new guidelines, Ashcroft claimed that the new intelligence policies were consistent with "community policing" goals. If that's the case, the FBI should respect state community standards, particularly those adopted by voters as constitutional rights, when carrying out its work.
State officials must address proactively these concerns. History teaches us that merely hoping that federal intelligence practices will respect the rights of Californians would put those rights at risk. Taking these steps now would be more prudent than learning possibly years later the cost to our privacy rights that has been paid by the lack of timely action.
Mark Schlosberg is the police practices policy director of the ACLU of Northern California.
By Mark Schlosberg
Dear Attorney General Bill Lockyer,
In order to ensure that intelligence-gathering practices carried out in California by state, local or federal law enforcement officers respect state constitutional right to privacy, your office must take immediate action. Without response from the state Department of Justice, this precious state constitutional right could be compromised by intelligence activities encouraged by new federal policies.
On May 30, long-standing federal guidelines designed to protect Americans from abusive and inappropriate intelligence gathering by the FBI were loosened suddenly and unilaterally by U.S. Attorney General John Ashcroft. Just 10 days later, the San Francisco Chronicle published a remarkable special report based on previously secret FBI intelligence documents, detailing how the FBI's "war on communism" led the agency to drift far from legitimate law enforcement concerns into politically motivated spying and smear campaigns at the University of California. These revelations highlight dangers to our freedoms posed by undercontrolled and overzealous intelligence tactics - dangers that are as real today as they were then.
In the past two months, some of the state's top elected officials, from state Senate President Pro Tem John Burton to U.S. Rep. Nancy Pelosi, D-Calif., have spoken out on the importance of ensuring that these unconscionable intelligence practices of the past not be repeated in the current fight against terrorism. For instance, U.S. Sen. Dianne Feinstein, D-Calif., recently wrote FBI Director Robert Mueller that "the recent release of revised FBI guidelines has led to understandable concern that a more powerful FBI must remain accountable and corruption-free. What safeguards are now in place to ensure that the FBI does not focus on political aims in the future?"
While it is fortunate that our public officials are raising these concerns, it is disconcerting that, to date, there has been no public recognition of the unique problems and threats created in the state by Ashcroft's new intelligence policies. California has a long and proud tradition of treasuring, exercising and taking steps to protect constitutional freedoms. Specifically, 30 years ago this November, voters incorporated an explicit and strong right to privacy into Article I, Section 1, of our state constitution. The amendment provided that the right of privacy was an inalienable right.
California therefore has drawn a line with respect to privacy, political and associational rights that government officials must not cross even with the best of intentions. Yet some of the intelligence practices now openly encouraged by the new federal guidelines cross that long-standing state line.
Without congressional hearings, input or public debate, Ashcroft eliminated or significantly loosened a number of key provisions in the guidelines controlling FBI intelligence practices. Most chillingly, the new guidelines encourage a "fishing expedition" approach to intelligence gathering by permitting federal agents to monitor political and religious activities without requiring any particular belief or suspicion that evidence related to terrorism or crime generally might be obtained. The federal government also is claiming the right to send agents to religious services, political rallies and organizational meetings open to the public both to monitor who says what and to see who is associating with whom.
As we celebrate the 30th anniversary of our state constitutional right to privacy this year, we need to remember the larger environment in which this right was created. That era, the 1960s, was in many ways defined by unchecked law enforcement and intelligence abuses, including the infiltration and disruption of the civil rights and anti-war movements. While the massive scope of those abuses was not fully exposed, public concern about government intrusions into personal autonomy and liberty was growing when state voters went to the polls in November 1972 to add the right of privacy to the state constitution.
One of the fundamental goals of this new state constitutional right was preventing law enforcement from spying on individuals and organizations or from gathering information on them in the absence of some evidence of their involvement in criminality. The first California Supreme Court case to interpret the privacy amendment, White v. Davis, 13 Cal.3d 757 (1975), recognized this fundamental goal and held that the police infiltration of classes and political associations at UCLA violated the state constitutional right to privacy. The court also noted that the "routine stationing of covert, undercover police agents in university classrooms and association meetings, both public and private, constitutes 'government snooping' in the extreme." Although 25 years old, White retains its value as precedent and continues to be cited with approval by the state Supreme Court.
The changes in FBI intelligence guidelines affect affairs outside of Washington, D.C. Since Sept. 11, the federal government has made a major push to create joint terrorism task forces made up of state, local and federal officers.
While that level of multiagency cooperation may be laudable and provide certain efficiencies, the constitutional rights of a jurisdiction must not be sacrificed in the process. State and local officers who may have formed close working partnerships with the FBI must recognize that, as a matter of law, federal leadership in Washington, D.C., encourages certain intelligence activities that the state constitution prohibits. Steps must be taken immediately to ensure that these joint terrorism task force intelligence activities, often led and directed by the FBI, do not lead to violations of Californians' privacy rights.
The state Department of Justice must take the following steps to ensure the protection of Californians' privacy rights. In the absence of direction from your office, state and local officers could be at risk of following the FBI's lead into intelligence practices that violate state constitutional privacy rights. These officers should be warned that state law, not Ashcroft, defines permissible conduct within the state. An informational bulletin issued by your office to law enforcement agencies statewide would help avoid potential confusion on this point and is necessary to protect state privacy rights.
The state Department of Justice also should encourage FBI agents to adhere to state constitutional privacy protections when gathering intelligence in the state. In announcing his new guidelines, Ashcroft claimed that the new intelligence policies were consistent with "community policing" goals. If that's the case, the FBI should respect state community standards, particularly those adopted by voters as constitutional rights, when carrying out its work.
State officials must address proactively these concerns. History teaches us that merely hoping that federal intelligence practices will respect the rights of Californians would put those rights at risk. Taking these steps now would be more prudent than learning possibly years later the cost to our privacy rights that has been paid by the lack of timely action.
Mark Schlosberg is the police practices policy director of the ACLU of Northern California.
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