The Rights of the People (44 page)

If I don’t want to be found, though, I’d better turn off my cell phone. Without a showing of probable cause, federal magistrate judges have approved numerous government applications for orders to track cell-phone locations in real time, which can fix a person’s whereabouts within thirty feet if his phone has GPS, or if not, within larger areas based on which cell tower his phone is using. Even when a call is not being made, a cell phone scans for the best reception every seven seconds, and wireless companies can tell which aspect of which tower faces the phone, triangulating the position if multiple towers are being used, as is common in urban areas. The accuracy is improving, because under the FCC’s Enhanced 911 order of 1997, companies must be able to locate 95 percent of cell phones within three hundred meters.
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To get these approvals, the government has persuaded a lot of judges—but not all—that something less than probable cause is adequate. Since location is not content, which requires an ordinary warrant, most judges have accepted the argument that a lesser standard is allowed: “reasonable grounds to believe” that the information is “relevant and material to an ongoing criminal investigation.”
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The language comes from the Stored Communications Act, which allows the release of “information pertaining to a subscriber” but makes no mention of cell-phone locations. Nor
does another law the government cites as its authority, the Pen/Trap Statute, which permits the installation of devices to register the phone numbers of outgoing and incoming calls.
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Beginning in 2005, magistrate judges, who usually decide on issuing federal search warrants, began rejecting the applications, noting that Congress had not explicitly legislated on tracking cell phones, and that while past locations might be accessible under the Stored Communications Act, real-time movements were not. “Surely if these various statutory provisions were intended to give birth to a new breed of electronic surveillance, one would expect Congress to have openly acknowledged paternity somewhere along the way,” wrote Magistrate Judge Stephen Wm. Smith.
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Some judges differentiate between tracking in public places, where the Fourth Amendment is not implicated, and inside private homes, where it applies. But of course, “the government cannot guarantee the cell phone and its possessor will remain in a public place,” noted a federal judge in Maryland,
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one of at least seventeen judges who had denied the requests through 2007.
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The Justice Department doesn’t usually bother to appeal these rejections. It either submits an affidavit asserting probable cause and gets the order, as it did after the Maryland judge turned down the initial request, or it simply proceeds with other applications before other judges in other cases, and usually it succeeds.

In New York, where it lost an attempt before one judge, it later won a ruling by another, Magistrate Judge Gabriel W. Gorenstein, that looked a lot like the Supreme Court’s reasoning in exempting, from Fourth Amendment protection, checks written, phone numbers dialed, and other data “voluntarily” provided to third parties. “The individual has chosen to carry a device and to permit transmission of its information to a third party, the carrier,” Gorenstein declared.
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But what if you don’t know that you’re being tracked? Police who have secretly installed GPS devices underneath suspects’ cars, providing people’s locations every minute for weeks or months, have faced mixed reactions in the courts. Some federal judges have seen nothing different in this technique from using old-fashioned tails, in which cops follow in vehicles or on foot—and do not need a warrant to do so. The Fourth Amendment “cannot sensibly be read to mean that police shall be no more efficient in the 21st century than they were in the 18th,” wrote Judge Richard Posner in a 2007 case. Other judges have taken note of the constancy of the GPS device, however, worrying that the nonstop recording of a person’s movements creates a picture much more comprehensive
than the fragmentary snapshots available from other methods. Therefore, police should have to show probable cause and obtain a search warrant. In throwing out a drug conviction in D.C., an appeals court panel found in 2010 that the sheer quantity of the GPS surveillance transformed it. “A person who knows all of another’s travels,” the judges declared, “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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The immense power that technology gives to those who possess it—whether government, industry, or ordinary individuals—has been a sword for good or ill, protecting and invading simultaneously, expanding the public square for debate while shrinking the landscape of privacy.

In domestic disputes, for example, cyber-stalking by spurned lovers has become so widespread that it’s now a concern of domestic-violence counselors. One Virginia man infected his former wife’s computer with software that could read her e-mail; when he let her know the personal information he had learned, he terrified her with a sense of violation and vulnerability as profound as if he had been inside her home. “When the stalking comes from someplace, anyplace, it makes you wonder what he’s really capable of … what he was going to do next,” she told
The Washington Post
. “He could have been anywhere at any time looking into my life and getting to me. He could have seen anything, like legal documents I was forwarding; or where I was going to be. That’s what I never knew.”
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Magnified by Internet technology, the casual cruelty of pranksters and voyeurs is no longer limited to backyards and dorm rooms. In September 2010, after a Rutgers freshman asked to have his room to himself until midnight, his roommate activated a Web camera remotely, saw Tyler Clementi romantically entwined with another man, and streamed the video online. Three days later, Clementi, a promising violinist, jumped to his death from the George Washington Bridge. What George Orwell portrayed as the menace of Big Brother in
1984
has now become what the writer Walter Kirn labels as Little Brother, a small-time, grassroots, Peeping Tom intruding through a multitude of lenses.

It’s so easy to cull vast records, one CEO told me, that her midsized company runs every job applicant’s name through databases and rejects anyone who has ever sued an employer for discrimination or sexual harassment, whether or not the suits were justified. The firm might as well hang up a sign:
LITIGIOUS WORKERS NOT WANTED
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One catch is that mistakes are made interpreting the flood of digital files. Whether the surveillance and search are done by government or a private firm, the collected information spans a spectrum from definitive to ambiguous, and where it is misread, it can make innocent people’s lives quite miserable. It is one thing to search an airline passenger, who either possesses something dangerous or does not. It is quite another for government to arrange scattered shards of data about individuals into caricatures that are not subject to testing or rebuttal, to forecast some deed that cannot be proven in advance. Law enforcement has enough difficulty finding who committed a crime in the past, much less predicting who will commit one in the future.

In an odd way, “the metal detector is a perfect privacy tool,” says Jim Dempsey, policy director of the Center for Democracy and Technology: Everybody is screened equally, there is an immediate alarm audible to the screener and the screened, the problem can be resolved just by emptying pockets, and no records are kept to prejudice the situation the next time you fly. It is a model whose characteristics of transparency, immediate resolution, and zero data collection might well suit other security measures and information gathering, Dempsey believes. The same might be said of the millimeter-wave devices that make people appear practically naked.

But constructing profiles and making predictions are now central tasks of intelligence and law enforcement agencies, which are charged with countering suicidal terrorists who cannot be punished afterward. Undeterred reverence for the wizardry of computers has fueled law enforcement’s growing infatuation with the vast reservoirs of digitally stored data that describe the buying, traveling, reading, viewing, renting, and possibly political habits of millions who live in the United States. If only the data could be mined and sifted and sorted into patterns that fit profiles, officials imagine, perhaps the occasional nugget of warning would lead to the cell or the plot or the threat, and disaster could be intercepted. “Connect the dots” has become the mantra in reaction to the government’s failure to assemble all the bits and pieces of information about the nineteen 9/11 hijackers’ travel, rentals, and flight lessons, which were scattered throughout databases. That lack of coordination was a theme of the 9/11 Commission’s exhaustive study of the attack.

The commission paid practically no attention to the stress on an open society caused by extensive surveillance. “When we say we are fighting for an open society, we don’t mean a transparent society,” Jeffrey Rosen writes. “We mean a society open to the possibility that people can redefine
and reinvent themselves every day; a society in which people can travel from place to place without showing their papers and being encumbered by their past; a society that respects privacy and constantly reshuffles social hierarchy. One ideal of America insists that your opportunities shouldn’t be limited by your profile in a database.”
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Go to GangNET’s Web site and watch the demonstration to see how easily a patrol officer, with no gang-unit training, can click a mouse and enter a person’s name in a database labeling him a gang member. Based mostly on “field interviews”—stops and interrogations without probable cause—the gang databases require no proof and allow no challenge to the assertion that someone is affiliated with a gang. The police listed more than 66 percent of all the black males in Denver between ages twelve and twenty-four, and 47 percent in Los Angeles. During a sweep of a school in Union City, California, sixty Asian and Hispanic students were plucked from the cafeteria for interviews, then added to the database.

Being listed has several disadvantages. It is taken as fact by judges, juries, and prosecutors, even though it may have been done at the whim of a single cop, without even the slightest internal review. A court can cite the listing in ordering you, without charge or conviction, to avoid certain people, locations, and clothing. If you’re charged with a crime, the prosecutor can use the listing to press you to plead guilty. If you don’t, your supposed gang membership can be presented to the jury as your motive for the crime, and in California and elsewhere, it enhances your sentence. It can deny you employment, and getting off the list is difficult, because most departments don’t update or purge their records.
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Whether you’re in a gang database or another digital place, you cannot escape from an electronically frozen profile. Its errors cannot be easily erased. Unflattering fragments can pierce a job application or a security clearance like shrapnel, shredding a college acceptance, a promotion, an election campaign years later. If compiled by watchers with both power and political motive, the dossier becomes a threat waiting in the background, inducing a quiet inhibition among the citizenry. Those who are careful to keep their files clean—who decide not to speak, not to assemble, not to step into what they fear might be a zone of government concern—take an invisible path away from civil society. Their choices are silent and hard to discern, especially against the noisy background of acerbic political irreverence and free-wheeling debate that America still enjoys.

“The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power,” the Supreme Court declared in 1972
as it unanimously ruled against warrantless wiretaps of violent protesters. “Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.”
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Otherwise, the justices understood, something can gradually happen inside people’s minds.

I saw it in the Soviet Union. Russians who were aware of living in a surveillance society were wary of contact with American correspondents, which could get them into unspecified trouble. But those who were oblivious to being watched, who had never bumped up against the limits of expression and association, sometimes displayed such naïve (and refreshing) boldness that I felt obligated to warn them. This I did for a young law student I met at a restaurant in the city of Dushanbe. We spent a few evenings in interesting conversation, and he said he’d like to get together again when he visited Moscow. Fine, I said, and gave him my address and phone number but told him that my phone was probably tapped, that KGB guards screened people entering my apartment house, and that his visit to me would be noted. “Outrageous!” he said indignantly. He never called.

The chilling sensation of being watched can generate internal censorship and self-policing, as described by a Pentagon committee on privacy and technology, headed by Newton Minow, a former chairman of the Federal Communications Commission: