According to Newsweek writer Jessica Bennett in her December 3, 2007 article entitled “Smile! You’re on Camera,” the average American is caught on tape 200 times a day.
This isn’t news to Christopher Slobogin, author of Privacy at Risk: The New Government Surveillance and the Fourth Amendment. This very important, well-written book should be required reading for every government employee from the local rookie police officer to the president. Slobogin, law professor at the University of Florida’s Fredric G. Levin College of Law, writes clearly and in depth about the different kinds of surveillance the government practices on its citizens and, perhaps more importantly, the lack of legal regulation of these surveillance practices. He also eruditely proposes expanding the fourth amendment’s prohibition on unreasonable searches and seizures to include these new technologies the founding fathers could never have imagined.
Slobogin introduces his book by defining and enumerating the two types of surveillance: physical and transactional. Using the American Bar Association’s Standards on Technologically-Assisted Physical Surveillance, Slobogin divides the technologies available into five categories: cameras, tracking devices, telescopic devices, illumination devices, and detection devices (capable of revealing concealed items, such as the x-ray scanners at airports, for example).
He then divides transactional surveillance into two types: target-driven, where an agent of the law uses a commercial data broker or snoopware to mine information on a specific person, and event-driven. As an example of an event-driven transactional surveillance, Slobogin writes,
“Say, for instance, that the police know that a sniper-killer wears a particular type of shoe, … that he owns a particular type of sweater, … and that he reads Elmore Leonard novels. … Once police obtain the credit card numbers of those who bought, say, the type of sweater found at the murder scene, they can trace other purchases made with the same card, to see if the relevant type of shoe or book was bought by any of the same people. Of course, if there is a match on one or more of the three items, the surveillance may then turn into a target-driven investigation.”
Why is Slobogin’s book so important? As he points out in “A Preview of the Book,” on page 17, “The [Supreme] Court’s willingness to declare that persons cannot reasonably expect their interactions with businesses and banks, their daily wanderings, and even some of their conduct at home to be free from suspicionless, warrantless surveillance by the government is contrary to societal mores and other legal norms.” Thanks to his research and very well-reasoned arguments, we have the information we need to combat the government’s post 9/11 trend toward warrantless surveillance and an easily understandable method whereby the judicial system can oblige legislatures into creating useful laws to protect us from unreasonable surveillance without compromising the government’s ability to investigate crime.
The strength of Slobogin’s arguments lies in the fact that his reasoning is neither liberal nor conservative. His point of view is not a compromise between political polarities; it is rather inclusive of both the public’s right to privacy and the government’s need to know. To quote Benjamin Franklin, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” Slobogin translates this in contemporary terms thusly: “we must make sure we are ‘secure’ from government overreaching as well as from criminals and our enemies.”
The impact of the recent developments in surveillance technology haven’t really affected the majority of Americans yet. In case the reader isn’t sure about the effects of losing his or her public privacy, Slobogin succinctly writes “Anonymity in public promotes freedom of action and an open society. Lack of public anonymity promotes conformity and an oppressive society.”
In a section entitled “The effects of being watched,” Slobogin says that “in addition to its effect of behavior, [closed circuit television] might trigger a number of unsettling emotional consequences.” Quoting Jeffrey Rosen’s work The Unwanted Gaze: The Violation of Our Privacy, Slobogin writes, “it’s considered rude to stare at strangers whom you encounter in public.” He extrapolates that the “cyclopsian gaze of the camera eye may be equally disquieting, and perhaps more so, given […] the unavailability of normal countermeasures, such as staring back or requesting that the staring cease.”
If this isn’t enough to trigger unease in the reader, Slobogin refers to the research of Roger Clarke (http://anu.edu.au/people/RogerClarke/DV/CACM88.html), who summarizes the dangerous consequences of what he calls “dataveillance,” including “wrong identification, blacklisting, denial of redemption, witch hunts, unknown accusations and accusers, denial of due process, prevailing climate of suspicion, adversarial relationships, inequitable application of the law, decreased respect for the law and law enforcers, reduction in the meaningfulness of individual actions, reduction in self-reliance and self-determination, stultification of originality, increased tendency to opt out of the official level of society, weakening of society’s moral fibre and cohesion, and a repressive potential for a totalitarian government.”
Slobogin doesn’t leave us in fear without recourse, however. In his chapter five, “Implementing the Right to Public Anonymity,” he writes about accountability, cleverly entitling a section “Watching the Watchers:”
“How do we make sure that the police refrain from using cameras in a discriminatory fashion?… Self-reports probably will not work…
How might we ensure access to the information necessary for accountability? David Brin has argued that the best way to control the government (and everyone else) in a surveillance-happy ‘transparent society’ is to watch the watchers. Camera tapes could be audited periodically – or the watchers really could be watched, by cameras. That method would not only capture the facts necessary to determine whether conduct of surveillance standards are obeyed, but also bring home to operators the panoptic effects their surveillance has on others, thus perhaps curbing voyeuristic and other unnecessary observation.” (p. 133, italics mine)
Slobogin concludes that a “continued development of Fourth Amendment jurisprudence” would render physical and transactional surveillance “constitutionally visible” while continuing to make these types of surveillance available to the government whenever it really needed them.
Is Slobogin’s work as important and necessary to our privacy and security as I think it is? Take the case of Hasan Elahi, an art professor at Rutgers University in New Jersey, whom the FBI mistook for a terrorist in June 2002. For six months, he answered their questions and passed their polygraph tests. Eventually he developed a website where he posts photographs taken with a cell phone every few minutes, detailing his location and activities (http://trackingtransience.net/). Lest you think his work absurd at best, logs on his site tracking the people visiting it show that authorities regularly continue to monitor him.
I urge you to read Privacy At Risk and find ways to halt the insidious tendency of our current legislation to support unreasonable and unwarranted surveillance of our persons and homes. With Congress set to take a vote sometime this summer to make the expiring provisions of the Patriot Act permanent, it is important to take action now. Begin by informing yourself with Privacy at Risk. Other resources include the American Civil Liberties Union page on surveillance and the Patriot Act (http://www.aclu.org/safefree/general/17326res20030403.html) and the Bill of Rights Defense Committee’s tips for local organizations to pass resolutions at the community and municipal level to protect privacy and liberty (http://www.bordc.org/).
