THE BLOG
11/16/2014 11:50 am ET Updated Jan 16, 2015

U.S. Marshals and Their "Dirtbox" Declare the 4th Amendment Dead

Has anyone seen the 4th Amendment recently? "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I don't know about you, but it surely seems to have gone off the way of a New York Mets pennant. Last night, while being interviewed on Coast to Coast AM (broadcast on 570+ stations in several countries), a show usually good at uncovering all kinds of extraterrestrial phenomenon, we just couldn't find it anywhere. What we did find was a trending story by the Wall Street Journal that the Justice Department, sans any warrant or reasonable cause, is doing something that even makes the NSA's methods of operation pale in comparison.

Ok, not really. It is hard to justify an NSA that eavesdrops on the cellphone calls of free world leaders who are our allies. But really - under the guise of "locating cell phones linked to individuals under investigation by the government," the US Marshals Service, with direct permission from the Justice Department, is spying on all of us.

Using "Dirtboxes" that act like fake cellphone towers, the Marshals are flying planes around areas that cover "most of the US population." These boxes trick our phones into reporting in - essentially telling the box who we are and where we are. And they've been doing this since 2007. Whoa.

Crazy, isn't it? I admire our awesome law enforcement men and women, and appreciate their efforts to safeguard us. But we have carefully established protocols and processes to help law enforcement officials track the bad guys. They can go to courts and get warrants; they can directly request information from phone companies about established or suspected criminals and their activity, and more. Yet "the program cuts out phone companies as an intermediary."

It is also quite unclear whether the Marshals are getting court orders to search for the phones they are tracking - yet regardless of any court order; the problem is that they are tracking nearly all of us in this effort to track a few. I am a technologist, and this is utterly preposterous. It smacks of the days when Google drove around the world while building Google Maps and conveniently stole most of our passwords to our wireless networks while gathering other personal information that had nothing to do with Maps.

As citizens of a brilliant democracy with careful checks and balances written into our legal oracles, we must recognize these privacy infringement wake-up calls - and rally around our missing Constitution. This great country is designed to protect law-abiding citizens and privacy is an inalienable right. Yesterday I was at the Privacy Identity Innovation 2014 conference in Palo Alto (the heart of technology innovation), and heard James Dempsey (a key member of the Privacy and Civil Liberties Oversight Board, which is in charge of oversight of the nation's counterterrorism programs) say the following about the NSA's telephony spying program: "The Section 215 Bulk Telephony Metadata Program, after 13 years of spying and data collection, has not uncovered one bad guy that we did not already know about."

It is time for some alchemy - let's stand up as Americans, for the greatness of America, and resurrect the 4th Amendment! (And if we get really lucky, perhaps simultaneously the Miracle Mets will also find their way back to the pennant trail:)