On June 25, the US Supreme Court ruled in Riley v. California that police generally must obtain a warrant before searching the digital contents of an arrestee’s cell phone. Thus, merely having taken someone into custody cannot alone serve as justification for the uninhibited examination of his text messages, contact lists, apps, and other sensitive data; all nine justices unanimously affirmed that such searches violate the Fourth Amendment of the Constitution. With good reason, civil liberties advocates hailed the decision as a landmark for privacy in the digital age. But less noticed amid the initial fanfare was that the Court’s reasoning may have actually further codified the curtailment of privacy rights among another, particularly-aggrieved demographic, members of which have proven uniquely vulnerable to encroachments of state power and inured to the constant predations of a system explicitly designed to screw them over: drivers.
In order to legally operate a motor vehicle on public roads in America today, citizens must abide an astonishing array of affronts to even the most basic concepts of civil liberty. Heavy-handed and infuriatingly arbitrary traffic patrols, mass collection of their locational data, grossly exorbitant fees and fines, statutorily unavoidable “checkpoints,” the ever-present threat of (age/gender/racial) profiling, relinquishment of due process rights—the list goes on, and on, and on. According to John Bowman of the National Motorists Association, one of the few organized efforts to lobby single-mindedly on behalf of preserving roadway liberties, conditions appear to be worsening at an accelerating pace. “Based on the reports we see here,” he told me, “and we do monitor this stuff pretty carefully, I would say the general erosion of motorists’ privacy rights has escalated over the past few years.”
The precarious state of privacy in this era of exponential technological advancement is a subject of much contemporary public discussion, especially since the scope of the US National Security Agency’s surveillance activities were disclosed by Edward Snowden. You’ll recall the very first of the Snowden leaks to provoke outrage was that Americans’ phone call data had been indiscriminately collected and stored by the government. Various so-called reforms followed not long thereafter. Simultaneously, however, local jurisdictions quietly continued developing their own means of collecting mass amounts of data on citizens, all but a minuscule percentage of whom are suspected of no wrongdoing whatever—other than traveling on public roadways. License plate-reading devices have proliferated among American police departments with negligible debate, and remain a largely unregulated practice. A single server in Albany, New York, for instance, was revealed in May to house at least 37 million entries on the movements of drivers in that region.
Further, enrollment in E-ZPass and related electronic toll collection systems is becoming mandatory in some areas—the entirety of the Pennsylvania Turnpike will be “E-ZPass only” by 2018—which means that motorists increasingly have no option but to accede to government authorities’ unchecked data collection efforts. These programs enable officials to reconstruct the travel routes of unsuspecting drivers with jarring precision, as befell former Minneapolis mayor R.T. Rybak when a local newspaper obtained his license plate scan records. This data can then be stored indefinitely and pooled into regional, highly creepy “fusion centers.”
Escalating surveillance infringements aside, fundamentally corrupt traffic enforcement regimes across the US—whose main purpose is expressly to generate revenue for their municipalities, not provide for public safety—threaten the privacy of virtually every driver on the road. Most anyone with even limited driving experience can attest, with at least a half-dozen personal anecdotes, to the absurdity of police traffic enforcement tactics. This perception of unfairness ultimately feeds into the broad-based cynicism toward and alienation from government that modern (especially young) Americans frequently exhibit. Especially if they result in an outcome unfavorable to the driver, negative traffic patrol encounters can be interpreted by citizens as “a form of public shaming that derives from the feeling that the state has no problem displaying its power and control over the citizen on a public stage.”
Government authority is experienced most acutely at the level of interpersonal interaction, in which certain agents are endowed with the power of the state to coerce certain citizens they deem deserving of heightened scrutiny. Exposure to the fundamental arbitrariness and corruption at the core of traffic law sours one’s impression of the legal system as unjustly weighted against the marginal. It reinforces the idea that any attempt to seriously navigate the administrative labyrinths of government are totally fruitless, and the entire system is a revenue-generation scheme designed to harass the powerless and let off the powerful. Pundits like to focus on squabbling between Democratic and Republican politicians, but it’s experiences such as these that perhaps most corrode general faith in American institutions.
Indeed, in the Riley decision handed down last month, the Supreme Court refers to its 2009 ruling in Arizona v. Gant, wherein the majority found that "circumstances unique to the vehicle context" justify warrantless searches of an arrestee’s vehicle when officers deem it "reasonable to believe”—an ill-defined standard, as Justice Samuel Alito lamented in his dissent—“that evidence relevant to the crime of arrest might be found." The US government then sought to import this newly invented Gant standard into another enforcement context, that being when officers seize an arrestee’s cell phone and desire to inspect its contents. The Court ultimately quashed this desire, and everyone rightly cheered; yet it is worth bearing in mind that the decision seemed to further entrench Gant in American jurisprudence. This matters because it affords localities additional leeway to act however they please “in the vehicle context”—a realm already heavily weighted in favor of police. Traffic stops may generally be initiated for any reason at any time, regardless of whether the suspect has committed any ticketable moving violations.
Here I can supply my own corroborating anecdote. One night last fall, I was driving somewhere in the desolate hinterlands of Western Nebraska. Headed eastbound, I had just crossed over from the Colorado border, and was traveling at what any fair-minded observer would almost certainly judge a perfectly legal, safe speed. Suddenly, out of nowhere came the dreaded flash: blazing blue lights in my rearview. Truly flummoxed as to what I could have possibly done to warrant law enforcement scrutiny—admittedly not always the case when I’ve been stopped—I nevertheless fulfilled my duty to immediately pull roadside and field the deputy sheriff's investigative queries.
Over the course of our dialogue, I was surprised to learn from the deputy that I stood accused of breaking no traffic law; I’d allegedly been going only five miles an hour over the speed limit, he conceded. Nevertheless, the deputy ordered me out of my vehicle. Assuming compliance was compulsory, I dutifully exited and awaited further instruction. Next I was to submit for a pat-down search of my person. I did so. No weapons were recovered. The deputy then spotted a small metal container thingy that I keep on my car keychain. “What have you got in there?” he asked before proceeding to snatch the keys right out of my hand.
At this point I mentally calculated that there was an approximately 30% chance this encounter would somehow end with me getting hauled out to some godforsaken country jail in middle-of-fucking-nowhere Nebraska. I attempted additional rough calculations as to how long I might be kept in custody, the potential cost of making bail, whether my car would be impounded, and other utterly banal practical considerations. Then the deputy did something pretty weird and unexpected. He invited me back into his patrol car. By which I mean, he ordered me to sit in the front passenger seat. I had never heard of this happening before in real life or fiction and didn’t really know what was going on, but once again obliged. Seated alongside me in the parked car, the deputy inspected the metal container thingy with his flashlight. My predicament fell somewhere between extrajudicial detention and casual chat. Eventually he divulged his satisfaction that the container thingy was free of contraband. (No consent for this search was ever given, or, for that matter, sought.) The sheriff then wrote me up a “notice”—not a violation, just a documentary memorialization of our encounter—and I was allowed on my way.
In those moments, I was at the total mercy of an agent of the state who had the legal discretion, if he so chose, to physically restrain me with metal cuffs, throw me in the back of his vehicle, lock me in a cage, and seize my property. It was at night, with (seemingly) nobody else around for miles. No audio or video recordings documented our exchange. One false move, and I would’ve been utterly screwed. These stories are legion, and they often end a lot worse than mine.
I escaped without a fine, but for many, penalties incurred for vehicular offenses have a ruinous financial impact. Aggressive traffic enforcement tactics inevitably bear down disparately on the poor and marginal; a businessman who gets caught going 17mph over the speed limit every two or three years can tolerate the occasional hit, but for the guy who has no choice but to drive 30 minutes each way to his just-above-minimum-wage job, such fines can be enormously burdensome. In California the total cost of a ticket for running a red light is $549. The average cost of a speeding violation in Harvey, Illinois has been calculated at $977.85. In Georgia, the total cost for a speeding conviction in a “work zone” may exceed $2,000. An Alabama woman living on disability payments was jailed for seven weeks after failing to pay fines arising from an unpaid traffic ticket. As municipalities across the country struggle with continual budget shortfalls, jacking up fines is a tempting way for local officials to plug the gaps.
Unfortunately for motorists, their plight is typically of little concern to the urban-dwelling cultural elite, who generally look on car ownership with scorn. But driving still features prominently in millions of ordinary Americans’ lives, and when penalties are imposed that impede drivers’ ability to travel unmolested—such as suspension of a license for failure to pay fines—many find themselves with no choice but to drive anyway, illegally. They absolutely must drive in order to work, facilitate childcare, or all manner of other daily necessities that require travel, and public transportation in vast swaths of the country is simply unavailable. What else are people supposed to do?
Despite their common grievances, drivers as a class are generally apathetic when it comes to organized political advocacy. The National Motorists Association is a laudable exception, but in general, one regularly hears vocal segments of the driving population demand utmost deference to law enforcement authority, and actually relish in their subservience to the state. This set argues that whiny know-it-alls should just leave cops alone to bring the full force of the law down on “undesirable” elements—particularly young people, people of color, hippie-looking people, people with subversive-slogan bumper stickers on their car, etc. Treating police claims with heightened skepticism is seen as indicative of some inherent moral perversion. Therefore, marshaling sufficient political support to enact any meaningful reform in this area is extremely daunting.
“Legislators are always afraid of the cops, so they’re going to do whatever the cops propose,” said John Wesley Hall Jr., an attorney in Little Rock, Arkansas and author of a multi-volume treatise on Fourth Amendment law, Search and Seizure. “Cops, just because they’re cops, seem to get all the benefit of the doubt. Regretfully.”
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Topics: driving, supreme court, US, United States, Samuel Alito, civil liberties, drivers, freedom, Liberty, EZ Pass, US Supreme Court, SCOTUS, fusion centers, NSA Surveillance, Edward Snowden, National Motorists Association, Riley v. California, Arizona v. Gant