18th International Privacy and Data Protection Conference

Privacy, Gulags and Western Policies on Illegal Drugs

September 19, 1996

Eugene Oscapella
Barrister and Solicitor

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My remarks will offend many of you, some considerably. Some of you will disagree with what I say. I will be pleased to hear why.

I hope to persuade you that we must begin to look critically, from the perspective of privacy, at behaviours within our criminal justice system that have been tolerated without complaint from the privacy community for far too long. I would like to marry two concepts: our laws on illegal drugs, and privacy.

Our drug laws, the laws that criminalize the possession, production and distribution of drugs such as marijuana, heroin and cocaine and scores of other substances, are the shame of 20th Century criminal justice. They are chemical McCarthyism. Our drug laws are a colossal failure for many reasons that have nothing to do with their privacy implications:

• they turn millions of otherwise law-abiding citizens into criminals, usually merely for possessing drugs;
• in North America, drug laws are inherently racist, with members of minorities more likely to be apprehended, charged, convicted and imprisoned than their white counterparts, despite similar levels of drug consumption;
• our drug laws foster a violent, corrupting black market in drugs, estimated by The Economist magazine to be the 2nd largest industry in the world;
• they subvert democratic or potentially democratic institutions the world over;
• they push drug users to the margins of society, where users become difficult toreach, but where they can easily be stigmatized, persecuted and prosecuted by the state;
• they foster the spread of HIV, hepatitis and other blood borne diseases that will kill millions of human beings around this planet, both drug users and non-users alike;
• these do not stop the flow of drugs into Canada nor the production of drugs domestically; at present, Canada may stop only about 10 per cent of the drugs destined for our country. Even the powerful United States does little better, and
• from our perspective as privacy advocates, today's prohibitionist drug laws have become a powerful and perhaps convenient incentive for governments to place ever greater numbers of us under surveillance, using the most sophisticated technologies available, subverting the privacy rights of all of us, whether or not we have anything to do with drugs. This is the price in terms of privacy of the continued prohibition of drugs. This is the price of continuing to treat drugs as a criminal justice issue to be dealt with through law enforcement and surveillance, rather than through our health and social care systems.

Let me explain just a few of the privacy implications of our present prohibitionist approach to drugs:

Point 1: The Creation of Gulags in Western Democracies

Incarceration represents the ultimate form of surveillance : 24 hours a day, within four walls, monitored by humans, by machines, restricted in their movements

We are witnessing the creation of gulags. In 1993, Norwegian criminologist Nils Christie published his seminal study, Crime Control as Industry. This study examined the expansion of what Christie labelled the crime control industry in western democracies. The full title of Christie's book, published only in 1993, was Crime Control as Industry: Towards GULAGS Western Style?.

Two years later, Christie prepared an update of the book. The title was the same, withone exception. Christie no longer asked the question "towards GULAGS Western style?". Gulags, according to Christie, were now fact, not speculation.

Lest you think that Christie was indulging in a bit of academic hyperbole by using the terms gulags, let me point out that the United States, the focus of much of Christie's book, has the highest rate of incarceration in the Western world. A recent CBC radio program, Ideas, noted that in the early 1970s, the state of Texas had about 14,000 people in its jails. Today the number is ten times that high. That same program cited a Rand Corporation estimate that by the year 2002, prison spending will consume 18 per cent of California's resources.

In the United States, one in three young black males is under some form of criminal justice supervision, read surveillance, on any given day. Ernie Drucker of the Montefiore Medical Center in New York, noted recently that the rate of incarceration of young black males in the United States was twice the rate of incarceration in the Soviet Union during the worst years of Stalin's regime.

Many of those young black males are in prison for drug crimes. Despite levels of drug use being almost identical between blacks and whites in the United States, blacks are more likely to be arrested, more likely to be convicted, more likely to spend time in prison as a result, and more likely to receive long prison sentences. At present, one in three young black males in the United States is under some form of criminal justice supervision.

Lest we become to smug in Canada, the same dynamic is at play here. Our rates of incarceration are about one-fifth as high as in the United States, but we still rank as one of the most punitive Western democracies. And racial characteristics play an important role in determining whether you are apprehended for a crime, prosecuted, convicted and imprisoned.

To put this into the context of privacy and this conference, what Christie was talking about was the ultimate form of surveillance by the state, imprisonment.

Point 2: The explosion in prison populations

Populations under intense surveillance, is largely linked in North America, and likely in other countries, to the enforcement of drug laws.

Now, where does drug policy come into this picture? In the United States, the explosion in the prison population, the explosion in the ultimate form of surveillance, is being caused largely by the enforcement of our drug laws. Some 1.5 million Americans are expected to be behind bars by the year 2000.

Point 3: Imprisonment is not the only form of surveillance connected to our drug laws.

The unenforceability of drug laws in the face of criminal prohibition has led to calls to increase the use of intrusive powers by the state and powers of surveillance, in a vain attempt to the powerful trade created by criminal prohibition.

Imprisonment may be the ultimate form of surveillance. However, in the enforcement of our drug laws, it is most certainly not the only form of surveillance. So let's look outside the prisons that warehouse so many of our fellow citizens and see what we have managed to create. What about the drug enforcement surveillance outside the gulags that affects so many more of us?

In fact, those of us on the outside are encountering our own gulags. Only these are gulags without walls. But we are not free from the reaches of surveillance that, had it then existed, would once have been thought of fit only for the most heinous of criminals. Today, these powers of surveillance are being applied to many of us, whether or not we have anything to do with drugs.

Drug testing is a major component of the hiring practices and employee relations of most major American corporations, and the technology is steadily creeping into Canada. Said one woman of the indignity of compulsory drug testing and being forced to urinate before an observer, "I am a forty year old mother of three and nothing I have ever done in my life equals or deserves the humiliation, degradation and mortification I felt."

Drug testing is finding outlets and technologies far beyond the workplace. For example:

• hair testing kits, to see if your kids (or employees) are using drugs
• a cloth swab to see if your kids (or employees) have come into contact with drugs
• a "sweat patch" - allowed last year by the FDA, absorbs sweat that is then tested for the presence of illegal drugs (will be used against people on parole or those on probation)
• drug tests are now being used for prospective and current tenants - for example, at one low-income apartment complex in Lake Worth, Florida
• drug testing of students (a school district in the State of Indiana is requiring students to under regular, random drug testing if they wish to park their cars on school property, take driver education courses, or participate in athletics or cheerleading)
• a December 1995 White House Directive requires all federal arrestees [not people who have been convicted] to be drug tested
• drug testing of athletes

Drug testing is not a creation of necessity. There is no drug crisis in the workplace, in our homes, in our schools.

But the War on Drugs, coupled with the profits that drug testing brings to the biotech industry, and the absurd rhetoric of moral entrepreneurs, has fostered this highly intrusive form of surveillance and the community and government support for it. Drug testing of students is also showing a whole new generation of citizens that they have no privacy, hardly the lesson we want to teach if we are to preserve this fundamental human right.

Police search powers are another example of the excessive levels of surveillance and intrusion generated by the war on drugs. Searches conducted to enforce drug laws are often violent, since the police anticipate violence from their targets.

These violent searches most certainly intrude upon our physical privacy and sometimes they go terribly wrong.

In March 1994, a drug raid on a home in Boston killed a 75-year-old retired minister:

• Boston's coroner said it was a heart attack brought about by extreme stress. Rev. Accelyne Williams, a slender 75-year-old man, spent his final moments doubled over, vomiting, his hands tied behind his back with a strip of plastic, totally confused about what was happening to him.
• Rev. Williams died quickly, soon after the raid had begun. He had literally been scared to death by shouting, storming anti-drug troops whohad chased him into his own bedroom, where three policemen forced him to the floor.
• Boston police later explained the direct cause of the mistaken raid and Rev. Williams' accidental death: a wrong address [given by an unidentified informant who had been drinking].

The war on drugs has escalated to the point where extreme police tactics are routine.

In a still unresolved 1991 New Mexico case, a couple's farm was raided by 85 police officers and soldiers from the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco and Firearms, the Forest Service and the New Mexico National Guard. They thought they would find a major marijuana growing operation, but in fact found nothing.

In Canada, under the Narcotic Control Act, a peace officer who believes that a dwelling house contains a narcotic, may, with a warrant and using such assistance as the officer deems necessary, break open any door, window, lock, fastener, floor, wall, ceiling, compartment, plumbing fixture, box, container or any other thing". A more gently worded search authority is found in the legislation that will soon replace the Narcotic Control Act, the Controlled Drugs and Substances Act. Under section 12 of the Controlled Drugs and Substances Act, a peace officer may "use as much force as is necessary in the circumstances" to conduct a search.

• Reliance on informers, perhaps one of the most distasteful forms of surveillance, because it involves not only surveillance, but deception. The informant can also manipulate the situation, selecting targets and attempting to entrap them at will. Both the Boston and New Mexico intrusions described above were based on faulty information supplied by informers searches of lockers in schools.
• In February 1996, reports of a drug detection device being marketed to schools. Its makers say that the machine can find illegal drugs behind brick walls and from half a block away.
• Surveillance cameras: in Baltimore Maryland, the city has approved the installation of 16 police video cameras in areas with high crime and drug activity body cavity searches conducted at border points and during police searches for drugs calls for the increased use of intrusive technologies to deal with the "spinoff" crime that is caused by the criminal prohibition of drugs.

Point 4: The situation can only grow worse as long as we maintain the present approach.

Drug traffickers, with terrorists and pedophiles, form the holy triumvirate of evils against which governments are seeking extraordinary powers of intrusion and surveillance. However, surveillance attacks symptoms, not causes. It does little to resolve the underlying evil for which a cure is being sought.

And the situation can only grow worse. At present, we might stop 10 per cent of the drugs destined for Canada from entering. This figure is likely the same for the United States. And synthetic and naturally grown drugs (cannabis, for example) are a major item of commerce in Canada. In a vain attempt to make law enforcement effective in the "war" on drugs, we will see the police and politicians call for increased powers of surveillance and intrusion - a ratcheting up of the powers of surveillance over society. As society turns ever more to the right - as it now is in Canada - the call for more intrusions in the name of the supposed "public interest" in the war on drugs will grow even louder.

Point 5: These powers are being applied against everyone.

And they will spill over into other areas of law enforcement and state control.

Even if you support the "War on Drugs" mentality, the criminal prohibition of drugs, you must realize that these extraordinary powers of enforcement are being used against everyday citizens, the vast majority of whom do not deserve such surveillance.

Point 6: The privacy community has a duty to assess the validity of claims that these forms of surveillance are truly necessary.

It has a duty to ask whether some other form of dealing with drugs in society would be as successful - or more successful - and yet not involve the massive level of privacy intrusions now inherent in drug law enforcement.

These are the intrusions, the forms of surveillance, that result from the application of prohibitionist laws to drugs. As privacy advocates, as citizens, you have the moral duty to question the value of this prohibitionist approach to drugs because of its crushing effects on the privacy rights of all citizens, drug users or not. You have the duty to ask if there is not a better way for dealing with drugs in society than relying on harsh, repressive criminal laws that can be even only marginally workable if they are accompanied by a host of extraordinarily and increasingly intrusive powers of state surveillance and intrusion. You have the duty, as when faced with the use of intrusive technologies in other areas of life, to ask whether such intrusions are necessary.

Could we deal with drugs in society without creating surveillance gulags, with or without walls? Could we find a way to deal with drugs that does not engender violating one of the rights for which we profess to hold such great reverence?

Will the privacy community on this planet decide to dirty its hands, or are we, as data protection commissioners and privacy advocates, going to allow our respect for privacy to be bought off? Are we going to allow ourselves to be seduced into casting away the privacy rights of our citizens simply by the rhetoric of the need for a violent and intrusive war on drugs? There are many, many reasons for calling for an end to the criminal prohibition of drugs and the insane war on drugs that is its byproduct. The debilitating effect of the war on drugs on the fundamental right of privacy is surely one of the most compelling.