The Rights of the People (43 page)

Yet against this nonchalance runs a current of discomfort. Government snooping draws complaints in blogs and chat rooms and dining rooms. Some citizens begin to act as if someone is listening or looking in, and they take precautions. Reporters use disposable cell phones to avoid exposing anonymous sources in case calling records are secretly obtained. A producer doing a television documentary on circumcision hesitates to type the word into Google because it links to pictures of naked children, “and that can be misconstrued,” he tells
The New York Times
. A telecommunications engineer worries that her interest in Palestinian issues will spark interest from “someone in my government [who] would someday see my name on a list of people who went to ‘terrorist’ web sites.”
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A scientist friend of mine uses euphemisms in e-mails to colleagues and avoids words he imagines might trigger a data-mining program.

And a fog of fear creeps into the lives of some who feel especially vulnerable. Following a minor car accident a few years after 9/11, a naturalized U.S. citizen who had been raised in Pakistan pleaded desperately with his American-born wife not to make an insurance claim, lest he end up in some database with vague, unwelcome consequences. Some Americans now think twice before donating to Muslim charities.

Employees would be also advised to think twice when sending text messages from their workplace pagers, even when they work for government agencies, which are subject to the Fourth Amendment. A California police officer, Jeff Quon, was disciplined after sexually explicit texts were discovered in his account. He sued, challenging his employer’s right to read his messages. The police department, which had a contract with a private firm setting a ceiling on the number of characters per month, was doing an audit to see whether pagers that exceeded the limit were being used for professional or personal messages. In 2010, the Supreme Court, in
City of Ontario v. Quon
, found the search “reasonable” under the Fourth Amendment, since it was not investigatory but done for a work-related purpose, and “was not excessive in scope.”
⁶

The concept of privacy may or may not be in the Constitution. The word is never mentioned, as conservatives accurately observe, the principle never explicitly articulated. Yet liberal and moderate judges see privacy woven implicitly into the First Amendment’s guarantee of the rights to worship, speak, and assemble, and into the Fourth Amendment’s defense of “persons,
houses, papers, and effects against unreasonable searches and seizures.” What do these limits defend, if not the private zone of individual life and action?
Griswold v. Connecticut
, which struck down bans on contraception, and
Roe v. Wade
, which overturned prohibitions on abortion, found that privacy was mixed into the mortar of the Constitution.
⁷

In 1928, when the Court approved the warrantless tapping of telephones in
Olmstead v. United States
, Justice Louis Brandeis coined a famous phrase in his dissent. “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness,” he wrote.

The right to be let alone has intrinsic worth, difficult to define and explain and justify in a policy debate, especially today in a time of terrorism. Its virtue cannot be measured by pragmatic rationales, its purpose cannot be calculated with any precision. Privacy is like a poem, a painting, a piece of music. It is precious in itself.

Government snooping destroys the inherent poetry of privacy, leaving in its absence the artless potential for oppression. At the least, if the collected information is merely filed away for safekeeping, a weapon is placed in the hands of the state. If it is utilized, acute consequences may damage personal lives. Even where government is benign and well-meaning—a novelty that neither James Madison nor Tom Paine imagined—the use of everyday information about someone’s past to predict his behavior can lead to obtrusive mistakes known in the jargon as “false positives.” Worse, the power of surveillance tempts the executive branch to aim at political opponents or “others” who seem “unpatriotic.” This is especially so when courts and legislatures retreat and fail to check and balance, for the vacuum they leave will be filled by expanding executive authority.

Those who trust the state make this standard argument: If you’re doing nothing wrong, you have no reason to worry about being bugged. “I
love comments like this,” wrote “Andrew” in an online posting about an ABC story on tapping cell phones. “What happens when they decide the websites you view are ‘wrong’ or the books you read are ‘wrong’?” Or, in states with laws against certain sexual activity, another reader suggested, why not accept a policeman in your bedroom, since you’re not doing anything “wrong”?
⁹

If you think you’re being constantly watched, you may behave differently, for better or worse—better if you hesitate to shoplift because you’re on camera, worse if the spying steals your political fearlessness.

Yet the deterrent effect is not always dramatic. England, which tried to curtail Irish terrorism by saturating itself with CCTV during the 1990s, saw crime fall only slightly in some areas, 2 to 6 percent,
¹⁰
a drop possibly caused by other variables, including declining unemployment and shifting police tactics. Ever-hopeful officials think the statistics may be improved by cameras with loudspeakers so operators who spot wrongdoing can scold miscreants at high volume. Meanwhile, some misdeeds merely move out of view, as prostitution did in Hull, England, when twenty-seven cameras were installed at a housing project. Prostitutes actually felt safer, the legal writer Jeffrey Rosen reports, but their clients were scared off, “especially after the police recorded their license numbers, banged on their doors, and threatened to publish their names in the newspapers.” The hookers went inside or moved to the city’s red-light district.
¹¹

It’s boring to gaze perpetually at routine street scenes, so CCTV operators relieve the monotony with voyeurism. Rosen watched the watchers in Hull for three hours and noticed that they zoomed in on good-looking women or spied on couples making out in cars. “ ‘She had her legs wrapped around his waist a minute ago,’ one of the operators said appreciatively as we watched two teenagers go at it.”
¹²
Privacy advocates in the United States have proposed that CCTV recordings be made available to law enforcement only with a search warrant.

In the eternal confidence that technology will outperform humans, software developers are coming up with programs to recognize both certain behavior and certain faces. The Modular Integrated Pedestrian Surveillance Architecture System sets off alarms if a camera detects unusual motion as in people fighting, someone loitering, a person repeatedly walking past the same spot, or a bag left unattended—in which case the file can be rewound to see who put it there.

FaceIt matches a face on camera with one in a database, often erroneously at this stage of technological skill. It was used on tens of thousands of fans entering the 2001 Super Bowl in Tampa and spotted nineteen people
who supposedly resembled those with outstanding warrants, but for only minor offenses. The accuracy was never checked, because officers couldn’t find any of the nineteen after they melted into the crowds. The police then installed the network in Tampa’s nightlife district, Ybor City, where it was defended as a more efficient version of a cop standing on a corner with a mug shot. For two years, it spit out false positives, mixed up men and women, and failed to lead to a single arrest, so it was finally abandoned. There’s nothing quite like a cop holding a mug shot after all.
¹³

Not only sights but also sounds are being fed into police computers, with more accurate results. ShotSpotter, a system installed in a few American cities, can determine a gunshot’s location within ten to twenty feet by triangulating the noise received by sensors the size of coffee cans, which are concealed atop buildings in high-crime areas. (Gang members get it: They fired at technicians placing microphones in Los Angeles and Oakland.)
¹⁴

At Washington, D.C.’s Joint Operations Command, a darkened room on the fifth floor of police headquarters, walls covered with huge screens depict jerky scenes from major streets and Metro stations, maps, TV news channels, and lists of recent crimes constantly updated. Here, in comfortable swivel chairs at computer consoles, officers monitor neighborhoods whose residents hear so much gunplay that they’re too jaded to bother calling 911—or, if they do, can’t pinpoint the location. Originally designed to monitor earthquakes, the acoustic software can distinguish between a car backfiring and a gun firing, says the center’s commander, Captain Victor Brito, who insists that the microphones are designed to pick up only loud bangs, not conversations. The explosive noise rings out in the command center, a location flashes onto the map, and a street address appears on the computer screen. In several instances, police have been dispatched without a 911 call, or long before, to arrive quickly enough to find the gun or to arrest a fleeing suspect, as officers were able to do in the murder of a landscaper in October 2006. The FBI is paying for the system.

Better yet, while the police watch the public, the public watches them. In Gadsden, Alabama, cops were beating prisoners in an elevator that took them from courtrooms to jail cells, City Councilman Robert Avery told me, until he got closed-circuit cameras installed in the elevator and cellblock. The abuse rate plummeted.

In Washington, D.C., one Friday afternoon, as the men and women of a narcotics squad began a briefing on search warrants they were about to execute, Sergeant J. J. Brennan warned them about monitoring.
Businesses’ video and audio surveillance are widespread, he cautioned: Officers in the Fifth District had just been suspended after videotapes showed their brutality against a man they’d chased into a liquor store. “Stores have cameras, some have cameras outside,” Brennan said as his squad sat around a long table. “I’d hate to see one of you guys spend a year or two in noncontact status. You got to be stern, but be careful how stern you are.” He reminded them that comments they made to each other could seem, in a recording, to have been made to a civilian, and a joke may not sound funny on tape. The men and women of his unit, who had been joking around with one another as usual, fell silent.

For several years, the Bush administration’s Department of Homeland Security used images of American territory from the Pentagon’s spy satellites for domestic security and law enforcement. President Obama ended the practice,
¹⁵
but it could be resumed in a flash, and the near future promises other ways to peer into citizens’ backyards. Defense Department researchers are miniaturizing aerial drones, reportedly getting them down to the size of a bird. After antiwar protesters got suspicious about oversized dragonflies hovering around street demonstrations,
The Washington Post
dug up information on Pentagon-funded experiments aimed at implanting electronics in live moths to control their flight and turn them into perfectly camouflaged surveillance machines.
¹⁶

It might seem paranoid to imagine dragonflies photographing your demonstrations, but since we live with one foot in the realm of science fiction, what seems far-fetched today can be routine next month. A private company has announced the development of an infrared sensor that can detect human skin, to be directed at cars in H.O.V. lanes to make sure they have the requisite number of passengers. A Massachusetts firm manufactures backscatter X-ray units, so-called “naked scanners,” mounted in vans to cruise streets and ports to locate explosives and humans inside buildings and containers. Georgia Tech has developed flashlight-sized radar that can detect heartbeats at a distance and human respiration through walls to help police locate fugitives in closets and people in hostage situations.
¹⁷
Similarly, to select passengers for secondary screening at airports, the Future Attribute Screening Technology (FAST) is being designed to do remote measurements of stress indicators: respiration, eye movement, heart rate, skin temperature, body language, and voice quality.
¹⁸
From the sound of this, if you’re nervous about being
late for your flight, be prepared to miss it as you get pulled off for additional scrutiny.

RFIDs, or radio-frequency identification devices, are growing in use—in passports, in E-ZPass transponders, on cartons of goods—so that a radio wave beamed at one triggers a unique signature identifying the owner. Unfortunately, hackers can also skim personal data as they pass by. GPS receivers, employing the Pentagon’s Global Positioning System of navigation satellites, are now ubiquitous—in cell phones, planes, boats, and cars. Using microchips to compute minuscule time delays from satellite signals, GPS calculates your latitude and longitude within a few yards, and if coupled with transmitters, can send your position to the watchers. Distrustful parents track their children around town by watching blips on computer maps, receiving text messages if kids venture outside an invisible boundary. Emergency operators pinpoint your location when you call 911 with a properly fitted cell phone. Company executives watch you travel in a company car. For a monthly fee, General Motors offers the OnStar system to find your vehicle if it’s stolen and find you if you break down. And if I want to be found on my boat—if I’m in danger—I can press a red button on my VHF radio, which is wired to my GPS, and transmit my position and identification to the Coast Guard.