July 16, 2015

Seattle declares war on privacy

By Brian T. Hodges Senior Attorney

The city fired its first shot in January, when it adopted a regulation that penalizes residents if they dispose of recyclables or food waste in their garbage cans.

How can that be a bad thing, you ask? After all, who doesn’t want to reduce the amount of waste that could be recycled or composted?

seattle skyline
Seattle, WA

Look closer at the law. Lurking beneath its seemingly benevolent surface is a mandate that threatens the privacy rights of each and every person who lives in Seattle.

The regulation directs city garbage collectors to search your garbage cans in order to determine whether you garbage can contains 10% or more recyclable or compostable materials. If it does, you’ll be subject to fines and/or a brightly colored shame tag pasted on your garbage bin—a scarlet letter to proclaim your crimes to your friends, neighbors, and passers-by.

While the city tries to paint a happy face on its program, internal training documents obtained calls for “zero tolerance” war on privacy. Lest there be any doubt that the city wants its garbage collectors to search through garbage cans, the training materials show garbage collectors removing bags to inspect a garbage can, peering into the contents of translucent bags, and opening torn or untied bags. Somewhat laughably, the training materials claim that calculating the 10% compostable materials threshold should be easy. After all, shouldn’t every garbage collector be able to determine on the fly whether the amount of food waste in any given bin is equal to or greater than 10% of its gross volume (x > πr2h ÷ 10)? Despite the math, it appears that Seattle garbage collectors are on pace to issue upwards of 100,000 citations this year.

The invasiveness and coerciveness of Seattle’s garbage snooping, standing alone, is objectionable.  But worse still is the fact that the regulation deprives Seattle residents of a constitutionally protected right. Washington State recognizes that privacy, like property, is a fundamental right. In fact, Washington constitutional article I, section 7, goes much farther than the Fourth Amendment of the U.S. Constitution, providing that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

Washington courts “jealously guard” the right to privacy, and have long-held that individuals have a reasonable expectation that the contents of their garbage cans will remain private. In the case, State v. Boland, the police and prosecuting attorney’s office received anonymous letters alleging that Boland was illegally selling prescription drugs out of his home. After an attempt to purchase drugs from Boland failed, the police searched his garbage cans without a warrant, uncovering evidence of drug-related activities. On review, Washington’s Supreme Court held that the government’s examination of the contents of a garbage can was an unconstitutional intrusion into a person’s private affairs. Particularly noteworthy, the court explained that “While a person must reasonably expect a licensed trash collector will remove the contents of his trash can, this expectation does not also infer an expectation of governmental intrusion.”

It is unclear why Seattle has chosen to do exactly what Washington’s constitution outright prohibits. It’s not like Seattle doesn’t recognize the vital importance of privacy—one week after adopting its garbage snooping law, the city announced its intention to be at the cutting edge of privacy protection by adopting a code of “privacy principles” when dealing with the data it collects from its residents—principles that are incongruous with its garbage inspection law. It would be funny, if the city wasn’t so sadly tin-eared to its citizen’s right to privacy.

The city’s inconsistency is whiplash inducing. Not only does the garbage inspection law authorize a massive and repeated intrusion into the private affairs of Seattle’s citizens, it also operates solely on the word of garbage collectors. With one exception for repeat commercial offenders, the city code doesn’t require any preservation of evidence (such as photographs) and doesn’t provide any opportunity for appeal. The garbage man is the proverbial judge, jury, and executioner—and snoop.

While composting and recycling are laudable goals, we should not allow our government to run so ridiculously roughshod over our rights. Nor should we allow our government to treat us with less respect than is due to criminals—most of us are everyday homeowners and business owners, not suspects.

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