A Government of Wolves: The Emerging American Police State (18 page)

As the case made its way through the courts, the Obama Administration defended the actions of the Maryland police, insisting that GPS devices have become a common tool in crime fighting and that a person traveling on public roads has "no reasonable expectation of privacy" in his movements. In his ruling against such an unwarranted use of a tracking device by government officials, Judge Douglas H. Ginsburg of the District of Columbia Court of Appeals declared:

It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine ... A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain disconnected and anonymous.
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Ginsburg rightly recognized the dangers of such a vast, uninhibited use of GPS technology: "A person who knows all of another's travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups–and not just one such fact about a person, but all such facts."
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Stingray Surveillance Device Used to Track Mobile
Phone Calls (US Patent and Trademark Office)

By the time
U.S
.
V. Jones
reached the Phone Calls (US Patent and Trademark Office) "Q g Supreme Court it had generated heated debate regarding where to draw the line when it comes to the collision of privacy, technology, constitutional rights and government surveillance. The arguments on both sides were far-ranging, with law enforcement agencies on one side defending warrantless searches and civil liberties advocates on the other insisting that if police can stick a GPS on a car, why not on a piece of clothing, or everyone's license plate?

Yet while a unanimous Supreme Court sided with Jones, declaring that the government's
physical
attachment of a GPS device to Antoine Jones' vehicle for the purpose of tracking Jones' movements
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constitutes an unlawful search under the Fourth Amendment, the ruling failed to delineate the boundaries of permissible government surveillance within the context of rapidly evolving technologies.
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Nor did it curb the government's ceaseless, suspicionless technological surveillance of innocent Americans. As Supreme Court Justice Samuel Alito recognized in his concurring judgment,
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physical intrusion is now unnecessary to many forms of invasive surveillance. As we have seen, the government's current arsenal of surveillance technologies includes a multitude of devices which enable its agents to comprehensively monitor an individual's private life without necessarily introducing the type of
physical
intrusion into his person or property covered by the Court's ruling.

Your Cell Phone Tracks Your Every Move

Cell phones are a perfect example of how the government can track your every move without physically attaching a tracking device to your person or property. Unfortunately the courts have provided little in the way of protection against such intrusions.
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For example, an August 2012 ruling by the Sixth Circuit Court of Appeals declared that police can track the location of a cell phone
without
a warrant.
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In fact, using "stingray" devices, often housed in mobile surveillance vans, federal agents can not only target
all
cell phone signals, they can also track your
every
move by tapping into the data transferred from, received by, and stored in your cell phone. (Incredibly, one agent can track 200 or 300 people at a time.
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) Your texts, web browsing, and geographic location are also up for grabs.
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Tens of thousands of cell tracking orders are issued every year, allowing police agencies to accurately pinpoint people's locations within a few yards. Unless they're charged with a crime, most people remain unaware that their cell data has been tracked.
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In July 2012 it was revealed that cell phone carriers had responded to an astonishing 1.3 million requests from police agencies for personal information taken from people's cell phones. Sprint receives an average of 1,500 such requests per day
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A relatively small carrier, C Spire Wireless, received 12,500 requests in 2011 alone.
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Keep in mind that a single request often involves targeting multiple people.
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Even small police departments–at least, those willing to shell out upwards of $244,000 to get the technology necessary to track cell phones–are engaging in cell phone tracking with little to no oversight.
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In this way, Americans have been sold to the highest corporate bidder. This is nothing less than the corporate police state at work, with cell phone companies as willing accomplices in the government's efforts to track individuals using their cell phones. Cell phone companies actually make a handsome profit from selling the details of your private life to the government (AT&T collected $8.3 million in 2011 for their surveillance activities).
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Helping the government spy on Americans using their cell phones has become so profitable for cell phone carriers that they've come up with price lists for easy reference for police agencies. "Surveillance fees"–that is, your tax dollars at work–for sharing information on a person's location and activities can range from a few hundred to a few thousand dollars per request.
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For example, Sprint, which has more than 100 employees dedicated to handling information requests from the government, "charged $120 per target number for 'Pictures and Video,' $60 for 'E-Mail $60 for Voicemaii; and $30 for 'SMS Content."'
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On the rare occasion that a telecom corporation resists efforts by the police to spy on a particular cell phone customer, there are methods by which companies are coerced to comply with the data requests. Telecoms are frequently harassed by the FBI with National Security Letters, which are demands for user information without warrant or judicial oversight. These include a gag order, which prevents the recipient from discussing the demand with others, including the media. Roughly 300,000 of these NSLs have been sent out since 2000.
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"It's Not Even Past"

Unfortunately with telecommunications companies storing user data, including text messages and Internet browsing history, for months to years at a time,
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it will not be long before William Faulkner's observation that "The past is never dead. It's not even past"
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becomes the truism of our age. Already, British researchers have created an algorithm that accurately predicts someone's future whereabouts at a certain time based upon where she and her friends have been in the past.
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Soon there really will be no place to escape from the government's electronic concentration camp. As journalist Pratap Chatterjee has noted, "[T]hese tools have the potential to make computer cables as dangerous as police batons."
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With intelligence gathering and surveillance becoming booming business ventures, and with corporations rolling out technologies capable of filtering through vast reams of user data, tapping into underseas communication cables, and blocking websites for entire countries, privacy as we have known it will be extinct.

It must be noted that there is both an intrinsic and instrumental value to privacy. Intrinsically, privacy is precious to the extent that it is a component of liberty. Part of citizenship in a free society is the expectation that one's personal affairs and physical person are inviolable so long as one remains within the law. A robust conception of freedom includes the freedom from constant and intrusive government surveillance of one's life. From this perspective, Fourth Amendment violations are objectionable for the simple fact that the government is doing something it has no license to do–that is, invading the privacy of a law-abiding citizen by monitoring her daily activities and laying hands on her person without any evidence of wrongdoing.

Privacy is also instrumental in nature. This aspect of the right highlights the pernicious effects, rather than the inherent illegitimacy, of intrusive, suspicionless surveillance. For example, encroachments on individual privacy undermine democratic institutions by chilling free speech.
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When citizens–especially those espousing unpopular viewpoints–are aware that the intimate details of their personal lives are pervasively monitored by government, or even that they could be singled out for discriminatory treatment by government officials as a result of their First Amendment expressive activities, they are less likely to freely express their dissident views.

No Place to Hide

So where does this leave us?

One of the hallmarks of citizenship in a free society is the expectation that one's personal affairs and physical person are inviolable so long as one conforms his or her conduct to the law. In other words, we should not have to worry about constant and covert government surveillance–whether or not that intrusion is physical or tangible and whether it occurs in public or private.

Unfortunately, in modern society, there really is no place to hide. Caught within the matrix of the American Oceania, we have arrived at a new paradigm where the concept of private property is eroding and along with it, the right against unreasonable searches and seizures once protected by the Fourth Amendment. In such a climate, everyone is a suspect. And you're guilty until you can prove yourself innocent.

Worse yet, those in control are using life's little conveniences, such as GPS devices and cell phones, to do much of the spying. And worst of all, the corporations who produce these little conveniences are happy to hand your personal information over to the police so long as their profit margins increase. To put it simply, the corporate-surveillance state is in full effect.

As Judge Kozinski concludes:

You can preserve your anonymity from prying eyes, even in public, by traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed. But there's no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention. Nor is there respite from the dense network of cell towers that honeycomb the inhabited United States. Acting together these two technologies alone can provide law enforcement with a swift, efficient, silent, invisible and
cheap
way of tracking the movements of virtually anyone and everyone they choose. Most targets won't know they need to disguise their movements or turn off their cell phones because they'll have no reason to suspect that Big Brother is watching them.
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CHAPTER 15

The Watchers and the Watched

"There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live –did live, from habit that became instinct–in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized."
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–GEORGE ORWELL,
1984