Top court to weigh privacy against government data needs

Thanks to increasingly sophisticated communications technology and ever-expanding interconnected data bases, even small-town police can run detailed background checks to discover criminals during routine traffic stops.

From their squad cars, officers can tap a network of government and private databases and in a matter of minutes retrieve a wealth of personal data well beyond name, address and driver status -- including Social Security numbers, telephone numbers, past arrests, employment eligibility, immigration status, photos, fingerprints, tattoos, medical conditions and more.

But there's a big problem with this instant access to information: A lot of what's in the databases is wrong, says Marc Rotenberg, president of the Electronic Privacy Information Center.

In a brief filed for a case the U.S. Supreme Court will hear March 21, Rotenberg cataloged the errors he discovered in databases ranging from the FBI's National Crime Information Center to the Homeland Security Department's E-Verify system to intelligence data that commercial vendors collect and sell to federal and state agencies.

The FBI's parent organization, the Justice Department, has cautioned that some of the data that the National Crime Information Center holds is incomplete and inaccurate enough to cause users "to make an incorrect or misguided decision," including unjustified arrests, Rotenberg wrote in the brief filed with the Supreme Court on Jan. 19.

Errors in the E-Verify system are "so egregious and their effects so significant that a federal judge cited them in an opinion granting a temporary restraining order against the Department of Homeland Security," Rotenberg said.

Commercial databases are no better. A check of one man's ChoicePoint record disclosed that the intelligence-collecting firm listed him variously as being a female prostitute in Florida, a prison inmate in Texas, a dealer of stolen goods in New Mexico, a witness tamperer in Oregon, and a sex offender in Nevada.

He was none of those, Rotenberg said, but federal and state law enforcement agencies routinely use error-plagued databases that ChoicePoint and other data brokers compile. Rotenberg hopes to convince the Supreme Court to overturn the conviction of Jose Tolentino, who was stopped by police at 7:40 p.m. on New Year's Day 2005 for playing music too loudly as he drove down a street in New York City.

A police computer check of motor vehicle records disclosed that Tolentino's driver's license had been suspended at least 10 times, and was suspended at the time he was stopped, so he was arrested.

Tolentino's lawyers argued that Tolentino was stopped despite violating no traffic laws or noise ordinances, therefore the search of his motor vehicle records was illegal.

The Supreme Court is interested because the traffic stop has become a Fourth Amendment case. The amendment protects against unreasonable searches and seizures, and it requires law enforcement authorities to show that they have probable cause before conducting a search.

Rotenberg said communications technology and databases have made unreasonable searches far too easy for police.

In his brief, he argued, "Government databases give police officers access to an extraordinary range of detailed personal information. No longer does the stop of a vehicle provide access to simple information about the status of the car.

"Given a few minutes, police officers can search from their squad cars an increasingly sophisticated network of government data systems and obtain personal information once scattered across municipal, state and federal criminal databases that would never have been available in the context of a routine car stop."

Due to the power of technology, he says, the courts must step in to protect the right to privacy. He quoted Associate Justice Samuel Alito as writing: "We sense a great threat to privacy in modern America; we all believe that privacy is too often sacrificed to other values; we all believe that the threat to privacy is steadily and rapidly mounting; we all believe that action must be taken on many fronts now to preserve privacy."

That was 1971, when Alito was a student at Princeton University, before police could tap vast databases from their squad cars, search through 70 million fingerprints in a matter of minutes, and comb files of digital photos, immigration records, watch lists and commercial intelligence files.

With so much information so readily available, "the risk is real that car stops will increasingly become pretextual because of the opportunity to search a government database for data unrelated to the reason that gave rise to the original stop," Rotenberg wrote.

As for Tolentino, he was charged with first-degree aggravated unlicensed operation of a motor vehicle, and he pleaded guilty in exchange for a sentence of five years' probation. Later, however, he appealed, arguing that the police stop and the search of his driving record were illegal. When the New York Court of Appeals disagreed, Tolentino took his case to the U.S. Supreme Court, which agreed last November to hear it.

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