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Editorial: Watched and Tracked; The Vermont Experience

A new report by the American Civil Liberties Union on government monitoring of ordinary Vermonters doesn’t break much new ground, but it does document how a number of different programs, taken in the aggregate, have produced what amounts to a Green Mountain State of surveillance.

The report, Surveillance on the Northern Border, outlines how, with little public notice or legislative oversight, law enforcement authorities have introduced an array of new technologies that permits unprecedented tracking of individuals’ movements and associations. This has been driven in large part by funding from the U.S. Department of Homeland Security, which since the terrorist attacks of 9/11 has allotted $100 million to the state and its municipalities to deploy new surveillance technologies, the fruits of which are shared with the federal government.

The information-gathering technologies employed include automated license plate readers used by 30 law enforcement agencies in the state; facial recognition software used by the Department of Motor Vehicles when issuing driver’s licenses and personal ID cards (and contrary to earlier assurances, shared with police agencies for investigative purposes); cell phone tracking without warrants; and the storage of large volumes of information about individuals in a so-called “fusion center” operated in conjunction with the federal government.

The U.S. Customs and Border Protection Service also plays a key role. It employs five times as many agents on the northern border as it did in 2001, and through a quirk of geography, almost all of Vermont falls under its jurisdiction. That’s because the agency asserts the right to operate within 100 miles of a border, and 94 percent of Vermonters live within 100 miles of either the Canadian border or the Atlantic coast. Thus were established the intrusive highway checkpoints that Upper Valley residents were forced to endure several years ago as part of their daily routines and which may be rolled out again at any time.

Taken together, these capabilities can be used to build extensive profiles of individuals who are not suspected of doing anything wrong — turning on its head the constitutional guarantee that government is required to secure a warrant, based on a showing of probable cause of wrongdoing, before it conducts surveillance or searches.

And while much of the information gathered now might be readily observable in public settings, the capability to collect it, aggregate it, store it and search it quickly makes the situation quantitatively and qualitatively different from anything that has come before.

The fact that the public and the Legislature have been slow to perceive and react to the establishment of a surveillance state does not mean that it is too late to impose checks and balances. Just this year, the Legislature mandated that information collected by automated license plate readers be destroyed within 18 months rather than held four years as previously. Lawmakers also ought to bar law enforcement from gaining access to cell phone tracking data without a warrant and limit the use of facial recognition technology to the Department of Motor Vehicles, as originally intended. Vermont’s congressional delegation should push for the Border Patrol to report each year the number of terrorism suspects apprehended through its operations in the state. We suspect it would be a short report.

Unwarranted intrusion into private life does not make Vermonters safer. It simply exposes them to different kinds of dangers from the one posed by terrorism. One is obvious: that government will be tempted to use the information collected not to identify legitimate security threats but rather to target people who are not on board with whatever its current program is. The other is that private life will be largely extinguished, and a fundamental component of freedom along with it. Liberty, after all, is not only the right to do things; it is also the right to be left alone.