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Why poorly conceived drug prohibition is bad for privacy

Mexican marijuana

 By Simon Davies

A new report by a Canadian drug law reform organisation paints a depressing picture of the drug prohibition framework. The report is the latest in a series of studies across the world which argue that the criminalisation of psychoactive substances has not only failed, but has led to a chain of negative consequences both for drug users and for society.

While observing that recreational drug prohibition has created a vast law enforcement infrastructure, the reports often overlook the obvious surge in surveillance powers and the creation of incursions on the private life of individuals.

The report, Getting to Tomorrow, was produced by the Canadian Drug Policy Coalition – one of several national reform organisations that seek an evidence-based approach to recreational drug policy. The studies from these organisations uniformly conclude that the claimed benefits of a prohibition model are largely illusory and that a proportion of law enforcement budgets should be shifted to support services.

Such findings are of course controversial. For centuries, the prohibition of substances has been motivated largely by morality or fear, neither of which lend themselves readily to rational dialogue about reason or consequence. Although in recent times there has been a slight shift to decriminalisation of marijuana, this trend has been offset by criminalisation of tobacco smoking.

Privacy is an interesting black spot in the content of these studies. While observing that recreational drug prohibition has created a vast law enforcement infrastructure, the reports often overlook the obvious surge in surveillance powers and the creation of incursions on the private life of individuals. Such powers involve consequences for everyone.

The creation of prohibition leads inevitably to the institution of surveillance. It is in the nature of control that rules must be buttressed through enforcement – and that enforcement must be supported by intelligence gathering. Drugs – like terrorism – have become a template justification for the imposition of CCTV, data retention, communications surveillance, powers of entry, financial sector surveillance, “fourth amendment” incursions and workplace surveillance. In many cases a collapsing prohibition leads to proposals that are increasingly desperate and anecdote-driven, rather than arising from a more objective and reasoned approach.

It is also common for drug law enforcement to be conducted using powers that were created for unrelated purposes, eroding public trust and placing additional strain on the police and judicial systems. For example when in 2012 the New York City police were given controversial new “Stop and Frisk” powers to combat the carrying of guns, the vast majority of subsequent arrests were on the grounds of marijuana possession – not the carrying of weapons. Although carrying marijuana out of public view is not a crime in New York, police used their new powers to require people to turn out their pockets – and made the arrests on the basis that the marijuana was then in public view.

It is in the nature of control that rules must be buttressed through enforcement – and that enforcement must be supported by intelligence gathering.

Such exploitation of power without a foundation of fairness, evidence or of strong public support is likely to create barriers to the acceptance of measures that are of genuine benefit to public safety.

The enthusiasm for drug enforcement continues unabated. Earlier this month both the Michigan state House and the Texas Senate passed legislation requiring drug tests for welfare claimants. Parliaments continue to pass laws aimed at specific substances, constantly feeding the justification for increased surveillance.

Critics of such measures usually face an uphill struggle applying statistical reason to what are often politically inspired proposals. In 2009 the UK government’s chief adviser on drugs, Professor David Nutt, was sacked after comparing the risk of death through the taking of Ecstasy with risk of fatality from horse riding. He concluded that the drug was statistically less dangerous than the sport. At the time Ecstasy had been demonised in the UK press and Nutt’s comments were seen as politically unsustainable.

Those who seek an extension of the war on drugs are of course entitled to lobby their views in the same way as anyone else, but they should be aware that they are also signing up to increased general surveillance by law enforcement authorities. And politicians who support increased prohibition should be guided by a test of scientific evidence to ensure that trust in the police and lawmakers is not damaged.