Ed Vitagliano
AFA Journal news editor
November-December 2010 – As a lark, British filmmaker David Bond wanted to see if he could disappear for 30 days, making himself invisible to the data collectors in his U.K. homeland.
So he sought out some private investigators who were willing to play along. They set a date for Bond to disappear and the investigators were only given his name and photo. Then they were told to find him.
“Go anywhere in the world. We’ll catch you,” they told Bond, whose experience led to the documentary Erasing David.
And they did catch him – before the 30 days were up – even though Bond slipped away from the U.K. into Europe. Every use of an ATM or credit card, every purchase of a train ticket or rental of a car, every careless use of a cell phone, every instance of logging onto the Internet – all of these activities flagged Bond’s location.
The investigators finally caught Bond by hacking into his family’s medical records and discovering that his wife was having trouble with her pregnancy. They nabbed him when he sneaked back into the U.K. to see his wife.
Most of us don’t think twice when we swipe the debit card at the grocery store or surf the Web. What we need to start thinking about is that someone may be – and probably is – watching and collecting and collating information about nearly every move we make.
Making us more secure
There is more to this than someone peeping through the proverbial keyhole, according to groups like the U.S.-based Electronic Privacy Information Center (EPIC). Issues such as national ID cards, travel surveillance, the protection of personal data are all on the table as technological advances make the collection of personal information by the government – and even corporations – a major concern.
There are also a lot of bad guys out there, however, who’d like nothing more than to continue moving in the shadows of a society they intend to harm.
And that’s part of the problem. In many areas of concern to privacy advocates, there is a reasonable justification for high-tech snooping. Who doesn’t want the U.S. government to have the freedom to go after terrorists, for example? And shouldn’t the government also know who is crossing the Mexican border to enter the U.S. illegally?
New technologies can be extremely beneficial in these areas and more. According to Clyde Wayne Crews Jr., vice president for policy at the Competitive Enterprise Institute, technological advances are about “enhancing convenience, service, authentication and individual security more than they are about invading privacy. … They can increase security in online commerce, help locate a lost youngster, relay medical information to doctors, and much more.”
In one Chicago school district, for example, the NBC affiliate there said students’ backpacks have been equipped with “a luggage tag-sized unit that logs when the student steps on and off the bus.”
Palos School Superintendent Kathleen Casey told NBC, “We can track the bus with the GPS, alleviate a parent’s fear if [their child] got on or off the bus, look up the ID number and find out what bus and what time he boarded or exited.”
Likewise the security enhancements added to the New York City mass transit system. As many as 500 cameras were put “in nearly every corner of three of the busiest transit hubs … in the stairwells and on the platform,” said the CBS affiliate in New York. All of them will be tied into the New York Police Department’s security operation center to help deal with crime and terrorist threats.
“It’s an invasion of privacy, but if I’m in the subway I like the cops looking over my shoulder,” one man told CBS.
Sorry, our mistake
Unfortunately, along with the benefits of this explosion of newfangled gadgets comes an exponential increase in the opportunities for failures in the system.
For example, the Lower Merion School District, located in a historic Philadelphia suburb, was sued this summer when it was accused of violating the privacy of many of its students.
It all seemed to start innocently. The district loaned laptop computers to all its high school students, and the laptops had Webcams (short for “web cameras”) – which are a relatively standard piece of hardware on most new laptops.
However, the computers also had another feature: software that allowed the school to turn them on remotely and, without student or parental knowledge, take photographs using the Webcam. The school apparently wanted the software installed so lost or stolen computers could be located.
Unfortunately for the school, the software was remotely activated and photos were taken in 15-minute increments and stored by a handful of school officials.
According to Main Line Media News, “An investigation by consultants hired by the district showed that some 60,000 images were taken while the software was in use between the fall of 2008 and February 18, 2010 when it was shut off.”
Whether or not the school district is found culpable for this disaster will ultimately be determined by the legal system, but these types of incidents are becoming all too common.
In September, a hospital in New York City admitted that the personal information of almost 7,000 patients – including a handful of Social Security numbers – had been mistakenly made available on the Internet.
What was intended to make the hospital more efficient – digitizing patient records – also made a hi-tech catastrophe possible. While there was no evidence that the information was intentionally disclosed – or even if it was subsequently used in an illegal manner – it was undoubtedly a frustrating experience for those who were victimized.
How far is too far?
While most of us want police to have every legal tool possible to catch bad guys, many people are also wondering where the limits are, because new technologies are posing new questions.
It used to be fairly settled law, for example, that the Fourth Amendment protected citizens from unreasonable searches by law enforcement officials. But does that apply to the full-body scanners used by the Transportation Security Administration to screen people going through airport security? The scanners, using “backscatter” technology, provide a “see-through” capability that essentially makes the person being screened appear naked before TSA employees.
That goes too far, according to Marc Rotenberg, executive director of EPIC. “Without a warrant, the government doesn’t have a right to peer beneath your clothes without probable cause,” he told Forbes.
How about the use of GPS trackers, placed surreptitiously on the vehicles of criminal suspects? One placed on the van of a convicted rapist – suspected of committing new sexual assaults – led to his arrest and the foiling of another rape. The Virginia Court of Appeals ruled in that case that police did not need to obtain a warrant before placing the device on the vehicle.
In a similar case, the 9th U.S. Court of Appeals also OK’d the use of GPS trackers by police, while the U.S. Court of Appeals for the District of Columbia Circuit ruled against the use of the devices.
As Adam Cohen, a lawyer and former member of the New York Times editorial board, said in a Time magazine commentary about these kinds of cases, “[I]f government agents can track people with secretly planted GPS devices virtually anytime they want, without having to go to a court for a warrant, we are one step closer to a classic police state – with technology taking on the role of the KGB or the East German [secret police].”
Big Brother?
Is this an exaggeration? Are we approaching a perfect storm of circumstances where there is, as Crews puts it, a “convergence of privacy-invading technologies and Washington’s appetite for surveillance” due to fears of another terrorist attack?
Like the proverbial “bogeyman” used to scare kids around a nighttime campfire, the words “Big Brother” have been used for more than 60 years to warn Western democracies of the dangers of totalitarianism.
The phrase itself, of course, comes from George Orwell’s 1984, a novel of a dystopian future in which the residents of the fictional totalitarian state Oceania live with “Big Brother” constantly watching their every move.
Some warn that Big Brother is potentially around the next technological bend – or is already here.
Chief Judge Alex Kozinski of the 9th Circuit, who dissented in the GPS case, is in the latter category. “1984 may have come a bit later than predicted, but it’s here at last,” he wrote.
Others aren’t ready to toss the Big Brother card out on the table just yet. Shane Harris, senior writer for Washingtonian magazine and author of The Watchers: The Rise of America’s Surveillance State, a book about the U.S. government’s efforts to use surveillance to protect the nation against terrorist activities, doesn’t believe that our government has become an evil entity bent on creating Oceania in 2010.
In an interview with Time magazine, Harris said he had yet to meet anyone in his research “who I thought had nefarious intentions or was out to violate people’s privacy or anything like that.”
Nevertheless, he said, “There have to be checks put in place and there has to be transparency and accountability. Bureaucracies have a way of taking on lives and actions of their own.”
Crews would agree. He said a gargantuan government bureaucracy creating a “compulsory database encompassing everyone” and fed – under legal requirements – by corporate America, forms “the most pressing threat to liberty.
“If government is … bent on assembling and mining massive databases of our credit card purchases, car rentals, library books, airline ticket purchases and so on, then banks, airlines, hotels, Internet service providers and other private businesses we deal with have no choice but to routinely transfer our private information to the government against our wishes,” he said. “They cannot promise to safeguard our privacy as they otherwise could.”
It is ironic, then, that the technology that has made our lives so much easier in the U.S. might also test our determination to keep our liberties. Only an informed and active electorate will be able to demand from its government the respect for privacy demanded by a free society.
If we, in order to continue living at ease in a tech-enhanced world, simply allow encroachment upon encroachment by government and corporate America into our private lives, we may soon wake up and find we have no privacy left.
“New technologies always bring risks,” Crews said. “But even the risks of a ‘database nation’ are controllable if we adhere to constitutional principle. Orwell’s Big Brother need not win.” 
