Friday, June 1, 2012

OMG: The Birchers were right! There are government helicopters, and they seem to be . . . examining our cattle

Sometimes the truth is at least as
strange as fiction:  at least when the
truth involves government
bureaucrats with unlimited budgets.
I actually (as strange as it seems) don't think I'm kidding.

Here's the wikipedia entry introduction on "Black Helicopters" [with emphasis added]:
Black helicopters is a term which became popular in the United States militia movement and its associated political circles in the 1990s as a symbol and warning sign of an alleged conspiratorial military takeover of the United States, though it has also been associated with men in black and similar conspiracies.[1] Rumors circulated that, for instance, the United Nations patrolled the US with unmarked black helicopters, or that federal agents used black helicopters to enforce wildlife laws.

Media attention to black helicopters increased in February 1995, when first-term Republican northern Idaho Representative Helen Chenoweth charged that armed federal agents were landing black helicopters on Idaho ranchers' property to enforce the Endangered Species Act. "I have never seen them," Chenoweth said in an interview in The New York Times. "But enough people in my district have become concerned that I can't just ignore it. We do have some proof."[6] Chenoweth made the charges at a press conferencewithout ever consulting with the Department of the Interior.
The U.S. Fish and Wildlife Service, which enforces the act, claims not to own any helicopters. 

Fast forward to . . . yesterday.

In which we discover that, ok, it isn't the Fish and Wildlife Service, but the Environmental Protection Agency using helicopters to monitor ranchers in Nebraska, Iowa, Kansas, and Missouri:

A bipartisan group of Capitol Hill lawmakers is pressing EPA Director Lisa Jackson to answer questions about privacy issues and other concerns after the agency used aerial surveillance to monitor livestock operations over their home state of Nebraska.
“Farmers and ranchers in Nebraska pride themselves in the stewardship of our state’s natural resources. As you might imagine, this practice has resulted in privacy concerns among our constituents and raises several questions,” says the letter signed by Republican Reps. Adrian Smith, Jeff Fortenberry and Lee Terry, as well as Democratic Sen. Ben Nelson and GOP Sen. Mike Johanns.
Smith, co-chairman of the Modern Agriculture Caucus and the Congressional Rural Caucus, said Tuesday the operations in many cases are near homes so “landowners deserve legitimate justification given the sensitivity of the information gathered by the flyovers.”
The letter asks nearly two-dozen questions including why the inspections are being conducted, how many flights have occurred and whether they have resulted in any enforcement activities.
“Nebraskans are rightfully skeptical of an agency which continues to unilaterally insert itself into the affairs of rural America,” Smith added.
The Environmental Protection Agency uses aerial surveillance across a swath of the Midwest known as Section 7 – which  includes Nebraska, Iowa, Kansas and  Missouri -- and has defended the practice as cost-efficient.

Thus far the EPA has declined to respond to this inquiry.

It is important to note that The John Marshall Journal of Computer & Information Law has noted for over fifteen years the drift in 4th Amendment court decisions favoring law enforcement and government regulators conducting aerial surveillance over private property owners:

Modern cases involving aerial surveillance using airplanes and helicopters give the best insight into how the courts have in the past and will in the future deal with this issue. One case, for example, involved the EPA taking surveillance photos of a chemical company's property without a warrant. Even though the chemical company had refused entrance in an attempt to protect trade secrets, the court found that the surveillance was reasonable because it was an industrial setting and because the chemical company had made no attempts to protect itself from aerial intrusions. A similar decision resulted when police officers, while hovering in a helicopter, took photos of marijuana plants growing in the back yard of an individual's home. The individual had built a 10-foot fence to prevent intrusions, but the court reasoned that the officers were in navigable airspace and that there was no physical intrusion. Therefore, the surveillance was reasonable and hence no violation of the Fourth Amendment. The courts continue to construe the Fourth Amendment in favor of law enforcement, ensuring the demise of personal privacy and ignoring the arrival of future high-end technology. 

Other factors affecting whether a property is within the reasonable expectation of privacy by society's standards, includes the location of the property and the circumstances surrounding the means of surveillance. A home expects the greatest degree of privacy. It is generally thought of as an intimate setting, and any unwarranted search would be deemed unreasonable. Industrial property and open areas, however, do not share the same benefits of privacy and protection offered by the Fourth Amendment as homes, because unlike homes, they can generally be observed with the naked eye and are more accessible to the public. The altitude and frequency of the local air traffic is also a factor in the reasonableness equation. The more frequent and the lower the air traffic is in the area, the greater the possibility of someone observing the property below. Consequently, because the likelihood of observing the property increases, the individuals on that property should have a lower expectation of privacy. This presumes that people who leave objects outside impliedly assume the risk that it will be observed and therefore consent to this observation. This belief is clearly erroneous. 

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