A Stitch in Haste

It's a basic legal premise that mere conveyance cannot convert bad title into good. In other words, if I steal your iPod and then sell it on eBay, you can still recover it, even though neither the buyer nor eBay knew, or had any reason to know, whether the iPod was stolen.

Should not the same principle apply to the police when acquiring personal data?

Numerous federal and local law enforcement agencies have bypassed subpoenas and warrants designed to protect civil liberties and gathered Americans' personal telephone records from private-sector data brokers.

These brokers, many of whom advertise aggressively on the Internet, have gotten into customer accounts online, tricked phone companies into revealing information and even acknowledged that their practices violate laws, according to documents gathered by congressional investigators and provided to The Associated Press.

The law enforcement agencies include offices in the Homeland Security Department and Justice Department — including the FBI and U.S. Marshal's Service — and municipal police departments in California, Colorado, Florida, Georgia and Utah. Experts believe hundreds of other departments frequently use such services.
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None of the police agencies interviewed by AP said they researched these data brokers to determine how they secretly gather sensitive information like names associated with unlisted numbers, records of phone calls, e-mail aliases — even tracing a person's location using their cellular phone signal.

Read the whole thing.

Now compare and contrast this law enforcement tactic with Hudson v. Michigan, the recent (correctly decided) exclusionary rule holding that I defended in this post. The evidence in Hudson was not proximately obtained via the constitutional violation of "knock and announce," and applying the exclusionary rule would not have been "restitutional" to the defendant but strictly punitive to the police. Stated differently, excluding evidence that would have been found anyway, as many libertarians advocated, would not correct a miscarriage of justice to the defendant but would simply serve as a vindictive reprimand to the police. That is simply not a core Fourth Amendment concept.

Here, however, we have the exact opposite. The evidence obtained by these data brokers is, typically, fraudulently obtained information — the brokers have the equivalent of "bad title." And it is still bad title when they sell (or give away) the records to the police — who apparently believe they have no obligation to determine whether they are dealing with law-abiding businesses. It is still tainted evidence that would never have been found without the subpoenas or warrants that the police simply (and impermissibly) chose to bypass. This is when a libertarian's Fourth Amendment siren should be blaring and the exclusionary rule should be demanded as a constitutional right. The exclusionary rule is about what to do with improper evidence, not improper procedures.

Congress is holding hearings this week to explore the data broker scandal. What might we learn about these law enforcement abuses?

Many of the executives summoned to testify before Congress this week were expected to invoke their Fifth Amendment rights against self-incrimination and to decline to answer questions.

Bill of Rights for thee but for me? Go figure.