LOCAL LAW ENFORCEMENT

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Your Papers, Please

The Annoyance:

There I was, just standing on the street minding my own business, when a cop stopped and demanded my identification. Am I required to give it to him?

The Fix:

Technically no, though you may be required to state your name or risk spending time in jail. In Hiibel v. Nevada (2004), the U.S. Supreme Court upheld a Nevada court ruling that police may request identity in cases where officers have a reasonable suspicion of wrongdoing. According to Privacy International, 21 states have laws that allow police officers to conduct a "Terry stop," named for a landmark 1968 Terry v. Ohio decision that allowed police to frisk individuals if they have a reasonable suspicion the person is involved in criminal activity or poses a threat to them. In a Terry stop, an officer can ask for your identity if he or she can explain to a judge later what you were suspected of doing wrong. (Critics of the Terry decision claim it has been used as a pretext for police harassment, particularly of minorities as in the classic traffic stop for "driving while black.") However, the Supreme Court ruled in Hiibel that you're not required to flash an ID, just to give your correct name. Otherwise, you generally have the right to remain silent at least until the Supreme Court decides to revisit the Miranda decision.

But if you're behind the wheel of a car or other vehicle, you're required to provide proof that you're licensed to operate said vehicle, as well as proof of ownership and insurance. Refusing to provide these documents could quickly land you in the slammer.

Anyone who's watched a cop show on TV can probably recite the Miranda warning by heart. ("You have the right to remain silent; anything you say can and will be used against you in a court of law..."). What you probably don't know is that Miranda only comes into play after you've been detained. (You'll know you've been detained when you ask if you can leave and the cops say no.) So if you spill the beans to a cop prior to being arrested, this information can be used against you later; the lack of a Miranda warning is no defense. If you can help the police investigate a crime, by all means do it but not at the expense of your Constitutional rights.


NATIONAL ID: YOUR LICENSE TO LIVE?

Among other things, the National Intelligence Reform Act passed in December 2004, and the "Real ID Act" approved by the House in March 2005, mandate the creation of a national standard for driver's licenses. Many privacy advocates believe this is a big step toward a mandatory national identification card what privacy guru Robert Ellis Smith has dubbed a "license to live."

Showing a state-issued ID is already required for boarding an airplane and buying alcohol or cigarettes; depending on where you are, it may also be required for voting, buying firearms, cashing a check, checking into a hotel, and opening a P.O. Box. These common practices may make driver's licenses the de facto ID for many other everyday events.

The NIRA also requires licenses to be "machine readable," which could lead to the use of Radio Frequency identification chips in licenses (see Chapter 5, "All RFID, All the Time"). An RFID chip could broadcast the information on your license to any scanner, making it relatively easy for others to track your movements. (For an idea of what people can learn from your license right now, see Figure 6-3.) Under these new laws, licenses would still be issued by individual states, but would contain similar data and be searchable via a nationwide database. A coalition of more than 40 liberal and conservative groups unsuccessfully opposed the driver's license provisions of the NIRA, arguing that it would do little to prevent terror but would greatly increase the ability of government to track the movements of law-abiding citizens. The laws would also make it easier for the government to deny someone a license and by implication, deny that person the ability to fly, vote, buy booze, or enjoy other privileges of citizenship. And, of course, you wouldn't be able to drive.


Table 6-3. Book 'em Danno. In many states, even the innocent must jump through hoops to clear their records.

State

Automaticaly destroys arrrest records after acquittal

Must petition court to seal or destroy record

Records remain, but you can deny arrests

Can request some criminal convictions be sealed

Alaska

 

 

Arizona

 

 

California

 

 

Colorado

 

Connecticut

  

Delaware

 

 

District of Columbia

 

 

Florida

 

 

Hawaii

 

 

Illinois

 

 

Indiana

 

 

Louisiana

  

Massachusetts

  

Missouri

  

Nevada

 

New Jersey

   

New York

  

Ohio

   

Oregon

   

Rhode Island

  

South Carolina

  

Tennessee

  

Utah

 

Virginia

    

Washington

 

 

West Virginia

  

Source: Compilation of State and Federal Privacy Laws. Reprinted by permission of Privacy Journal, http://www.privacyjournal.net


You're Under Arrest Forever

The Annoyance:

I was arrested for a crime but the case never made it to court. Yet my local county courthouse still has a record of my arrest. Can this come back to haunt me if I apply for a job? How can I get my record cleared?

The Fix:

At press time, there was no Federal law regarding arrest records, so what you can and can't get expunged depends entirely on the state where you got pinched. Some 34 states have laws on the books regarding arrest records, and they all differ in certain regards (see Table 6-3). If you've been arrested by the Feds and gone to trial, even if you've been acquitted, the court documents will be available for 7 cents a page via the Public Access to Court Electronic Records (PACER) service (http://pacer.psc.uscourts.gov).

Some states, such as Louisiana and South Carolina, automatically seal or destroy arrest records if you've been acquitted or the charges were dropped. In other states, such as Alaska or Washington, you must petition the court to destroy or seal your arrest records, even if you've never been convicted. Maryland and Massachusetts won't expunge the records but if you've been acquitted of a crime, you can legally say "no" if a potential employer asks if you've ever been arrested. Some state laws merely prohibit employers from gaining access to your arrest record, while others have no guidelines regarding arrest records and privacy. For a guide to privacy laws nationwide, order Compilation of State and Privacy Laws published annually by the Privacy Journal ($35, http://www.privacyjournal.net/work1.htm). This handy guide contains summaries and the relevant section numbers of the laws in each state. You can also find links to the laws of all 50 states at Cornell University Law School's Legal Information Institute site (http://www.law.cornell.edu/statutes.html), organized by state or topic.

Escaping the Long Arm of the Law

The Annoyance:

When I was young and stupid I had a few run-ins with Johnny Law. Now that I'm old and respectable, I'd like to bury my past. Can I hide my youthful indiscretions or are they permanent blots on my record?

The Fix:

As with arrest records, a mish-mash of state laws controls your ability to erase your criminal past. Nearly all states allow you to seal records of arrests and convictions that occurred while you were still a minor. In general, however, it's a lot harder to quash records of crimes you've been found guilty of as an adult. There are even commercial firms that make this data available for a fee (see Figure 6-5).

annoyances 6-5. Many states make it possible for anyone to look up your criminal record online, either directly or through a private company such as 123nc.com, above. For $15, you can purchase criminal records on anyone in North Carolina, whether they've committed a traffic violation or murder.


But it's not impossible, especially if the crimes are fairly minor and you don't have an extensive criminal history. First-time offenders in Ohio and Oregon, for example, can petition the court after their release and ask that the conviction be expunged or "deemed not to have occurred." Or you may simply have to wait a while. Massachusetts and Nevada will expunge felonies from your record 15 years after your release, assuming you kept your nose clean in the interim. (For more information on expunging criminal records, see EPIC's page at http://www.epic.org/privacy/expungement/.)

If your state doesn't allow you to expunge or seal your criminal records, you could ask for a pardon from the governor. In most cases, you must have served your sentence in full, demonstrated that you're rehabilitated, and supply substantial amounts of personal information as well as testimonials from others. If you've committed a Federal offense, your pardon will have to come from the President. Good luck.

Pull Over and Show Me Your DNA

The Annoyance:

The police took a swab of my DNA for use in a criminal investigation. What happens to this information? Is my genetic code permanently on file? Can I refuse to provide a sample or demand it be destroyed immediately after the investigation is concluded?

The Fix:

For more than 15 years, law enforcement agencies have been gathering DNA samples to identify criminals and exonerate the wrongfully convicted. Cops can get their hands on your genetic code a number of ways. According to Smith Alling Lane (http://www.dnaresource.com), which runs a site devoted to DNA forensics policy, all 50 states take a DNA swab when you're convicted of violent crimes such as rape and murder; more than half may take samples if you've committed certain misdemeanors, and four states (California, Louisiana, Texas, and Virginia) collect your genes if you're merely arrested for certain felonies (see Table 6-4).

Table 6-4. Your DNA code versus the penal code.

Police collect your DNA if...

Number of statesa

You've been convicted of a sex crime or murder

50

You're already incarcerated

48

You've been convicted of any felony

38

You're a juvenile offender

32

You've been convicted of certain misdemeanors

26

You're on probation or parole

22

You've been arrested for a violent crime

4

a As of December 2004

Source: Smith Alling Lane (dnaresource.com)


They can also ask you to voluntarily surrender your genetic code to help in a criminal investigation. But collecting the DNA of innocent people is problematic. For one thing, it's not very effective, says Sam Walker, a professor of criminal justice at the University of Nebraska in Omaha. In a report published in September 2004, the University's Police Professionalism Initiative looked at 18 cases where the cops conducted a "DNA sweep" and found only one where genetic evidence helped to nab a suspect.

More importantly, DNA sweeps may violate fundamental privacy protections against unreasonable search and self-incrimination. If you refuse to provide a sample, you may automatically become a suspect in a case, or at least suffer embarrassment in front of friends, family, or co-workers. "When you do an intrusive search on someone who's not a suspect, you're violating their basic Fourth Amendment rights," says Walker.

PRIVACY IN PERIL: TAILING BY SATELLITE

Think the police are following your car? They could be and without ever leaving the squad room. In January 2005, a U.S. District Court judge in New York ruled that the police could attach GPS tracking devices to vehicles without authorization from a court. The devices can then be used to map the subject's movements remotely via satellite. In a drug case involving an attorney and a local Hells Angels Motorcycle Club, Judge David Hurd ruled that the police could affix a tracking device to the attorney's car without a warrant, because people had "no reasonable expectation of privacy" while driving on a public road. The ruling is only binding for cases tried in the Northern District, which includes most of upstate New York, but privacy advocates fear other judges will use it as grounds for allowing increased government surveillance in their districts.


Once you give up a DNA sample, you may have no control over what happens to it. Some jurisdictions destroy the sample but retain a digital snapshot of it, which can be used to identify you in the future. Others maintain the actual genetic sample, which could stay on file for years. Most states put some legal restrictions on who can access your DNA, but they vary widely.

Nearly two dozen Louisiana men who volunteered DNA samples during a 10-month hunt for a serial killer have sued the state to get their samples back. So far the state has denied their request, despite the fact the killer was caught and convicted. In the mid-1990s, the state of Michigan lost a similar suit; innocent suspects in that state may now have their DNA samples destroyed after an investigation has been completed.

DNA does more than identify you. It can indicate a propensity for particular diseases something an employer or insurer might pay to know as well as who's related to whom (something you may not want to know). With advances in science, DNA samples could eventually reveal behavioral tendencies, ethnicity, addictive disorders, or other personal characteristics having nothing to do with law enforcement. Think twice before giving up your DNA voluntarily, and familiarize yourself with your state laws regarding genetic privacy. The American Society of Law, Medicine, and Ethics maintains a highly detailed guide to the DNA database laws of all 50 states (see Figure 6-6) including grounds and methods for expunging your DNA records (see http://www.aslme.org/dna_04/grid/statute_grid.html). For more information on DNA privacy in general, see EPIC's Genetic Privacy page (http://www.epic.org/privacy/genetic/).

annoyances 6-6. What happens to your genetic code once the cops get their hands on it? The American Society of Law, Medicine, and Ethics maintains a handy guide to state laws regarding DNA databases.


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    Computer Privacy Annoyances
    Computer Privacy Annoyances
    ISBN: 596007752
    EAN: N/A
    Year: 2005
    Pages: 89

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