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February 4, 2012 |
At the same time, privacy advocates pointed out -- and some of the justices admitted -- that the court's majority opinion in US vs. Jones completely skirted more pressing privacy issues. The problem, the majority argued, was that police had trespassed on Jones' private property by planting a GPS device on his car. The majority opinion did not address whether or not it's okay for law enforcement to use a sophisticated surveillance technology to log someone's movements for a whole month without a warrant.
In separate, concurring opinions Justices
Alito and Sotomayor both warned of the multitude of surveillance
technologies that do not require intrusion onto private property to
trample privacy rights. Here's a (non-comprehensive) breakdown of
existing or impending technologies that make our privacy protections
wildly outdated.
1. Everything you use, all the time.
The Jones case itself presents an
outdated problem, because police don't really have to bother with the
clumsy task of sneaking a device onto a car; at this point, private
companies have shoehorned location trackers in most "smart" gadgets.
Justice Alito pointed out that the more than 332 million phones and
wireless devices in use in the US contain technology that transmits the
user's location. Many cars feature GPS as well, thanks to OnStar
navigation.
"Even if police can't track you using a
GPS device," Lee Tien, of the Electronic Frontier Foundation, tells
AlterNet, "if they can go to your phone company and get information on
your whereabouts, what does that matter?"
As Sotomayor pointed out in the
concurring opinion, "GPS monitoring generates a precise, comprehensive
record of a person’s public movements that reflects a wealth of detail
about her familial, political, professional, religious, and sexual
associations… (Disclosed in [GPS] data will be trips the indisputably
private nature of which takes little imagination to conjure: trips to
the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS
treatment center, the strip club, the criminal defense attorney, the
by-the-hour motel, the union meeting, the mosque, synagogue or church,
the gay bar and on and on). The Government can store such records and
efficiently mine them for information years into the future."
Location is just the start. There has
probably not been a single week since 2005 without a story about
Facebook, or Google, or Verizon, or AT&T terrifying consumers and
privacy advocates with some new way to collect too much information and
then share it with other companies or authorities.
The problem is that the law does not
adequately address private information that has been shared with third
parties, like credit card companies or Google, Facebook and the
telecoms, Tien says.
As Sotomayor put it, "I
for one doubt that people would accept without complaint the
warrantless disclosure to the Government of a list of every Web site
they had visited in the last week, or month, or year. "
2. Cameras everywhere: License plate readers, movement tracking on cameras.
Thanks in part to a decade of Homeland
Security grants, America's cities are teeming with cameras -- they're on
subways, on buses, on store fronts, in restaurants, in apartment
complexes, and in schools.
In New York, the NYCLU found a five-fold increase in the number of security cameras in one area of New York between 1998 and 2005, and that was before
the Bloomberg administration -- inspired by London, most heavily
surveilled city in the world -- pledged to install 3,000 cameras in
lower Manhattan as part of the Lower Manhattan Security Initiative
(this plan was expanded to midtown Manhattan as well). The cameras,
which stream footage to a centralized location, are equipped with video
analytics that can alert police to "suspicious" activity like loitering.
The NYPD, and municipalities all over the country and world also make generous use of license plate readers (LPR) that can track car movement.
The big issue, as EFF's Tien tells
AlterNet, is that these surveillance tools muddy the legal barriers
between public and private that are at the heart of constitutional
protections, because they're so much more sophisticated than human
observation. In other words, a person might expect that what they do on a
street corner can be observed, but not that their actions might be
logged in a database or that they can be tracked for a month.
3. Biometrics.
As cameras become more sophisticated and
better able to capture higher quality images from further away, there's a
push to merge surveillance with biometrics technology -- the use of
unique physiological features, like facial features or iris patterns, to
ascertain identity.
After 9/11 many cities and airports
rushed to boost their camera surveillance with facial recognition
software. The tech proved disappointing, and after testing that hit a
paltry 60 percent accuracy rate in one case
(that's pretty bad if you're trying to figure out identity), many
programs were abandoned. In the years since then, both private companies
and university research labs funded with government grants have made
vast improvements in facial recognition and iris scans, like 3-D face
capture and "skinprint" technology (mapping of facial skin patterns).
Iris scans can allegedly tell identical twins apart.
Many private companies shill these
products directly to local law enforcement agencies, a business strategy
that police tend to be pretty enthusiastic about. One such success
story is the MORIS device,
a gadget attached to an iPhone that can run face recognition software,
take digital fingerprints and grab an iris scan at a traffic stop.
Starting last fall, the MORIS device has been in use in police
departments all over the country.
4. Government databases.
Privacy advocates point out that novel
types of biometric technology like facial recognition and iris scans can
be an unreliable form of ID in the field, but that has not discouraged
government agencies from embarking on grand plans to hugely expand their
biometric databases. The FBI's billion-dollar "Next Generation
Identification" system (NGI) will house iris scans, palm prints,
measures of voice and gait, records of tattoos, and scars and photos
searchable with facial recognition technology when it's complete in
2014. The bulk of this information is expected to come from local law
enforcement.
Other government agencies have also been
jazzing up their biometric databases. The DoD's ABIS contains millions
of biometric records from Iraq and Afghanistan, including images of
faces, fingerprints, iris scans, and voice recordings. DHS's IDENT
database houses photos searchable with facial recognition. The DoJ, DHS
and DoD have a mandate to make their databases "interoperational" so
anyone from any agency can search the others.
The development of the new FBI database
is subject to internal review to ensure compliance with privacy laws.
But privacy advocates point out that there are few bulwarks against
abuses in how the information is collected and used, especially since
much of this information can be picked up remotely without consent.
5. FAST (Future Attribute Screening Technology).
Then there's the tech that's supposed to
peer inside your head. In 2008, the Department of Homeland security lab
tested a program called Future Attribute Screening Technology
(FAST), designed to thwart criminal activity by predicting
"mal-intent." Unsavory plans are supposed to reveal themselves through
physiological tells like heart rate, pheromones, electrodermal activity,
and respiratory measurements, according to a 2008 privacy impact
assessment.
The 2008 privacy assessment, though, only
addressed the initial laboratory testing of FAST's prophesying sensors
on volunteers. According to a report in the journal Nature, sometime last year DHS also tested the technology in a large, undisclosed area in the northeastern US.
6. Drones!
Unmanned flying vehicles, a key part of
the valiant effort to transform modern warfare into a video game, are
likely to become increasingly common domestically. The FAA currently
restricts the use of drones (with occasional exceptions) but that won't last long: Congress has instructed the agency to open six US test sites that will help establish rules for their routine use, according to Bloomberg.
Border agents already use drones to track activity on the border and even inside Mexico. Also, in December the LA Times reported that U.S. Customs and Border Protection generously loaned out drones to police departments.
An ACLU report from December says
that local law enforcement officials are pushing for domestic use of
the new technology, as are drone manufacturers. As Glenn Greenwald points out, drone makers "continuously
emphasize to investors and others that a major source of business
growth for their drone products will be domestic, non-military use."
Right now drones range in size from giant
planes to hummingbird-sized, the ACLU report says, with the technology
improving all the time. Some can be operated by only one officer, and
others by no one at all. The report points to all the sophisticated
surveillance technology that can take flight on a drone, including night
vision, video analytics ("smart" surveillance that can track
activities, and with improvements in biometrics, specific people),
massive zoom, and the creepy see-through imaging, currently in
development.
7. Super drones that know who you are!
In September, Wired reported that
the military has given out research grants to several companies to
spruce up their drones with technology that lets them identify and track
people on the move, or "tagging, tracking, and locating" (TTL). Noah
Shachtman writes:
Perhaps the idea of spy drones already makes yournervous. Maybe you’re uncomfortable with the notion of an unblinking, robotic eye in the sky that can watch your every move. If so, you may want to click away now. Because if the Army has its way, drones won’t just be able to look at what you do. They’ll be able to recognize your face — and track you, based on how you look. If the military machines assemble enough information, they might just be able to peer into your heart.
One company claims it can equip drones
with facial recognition technology that lets them build a 3-D model of a
face based on a 2-D image, which would then allow the drone to ID
someone, even in a crowd. They also say that if they can get a close
enough look, they can tell twins apart and reveal not only individuals'
identity but their social networks, reports Wired. That's not all. Shachtman continues:
The Army also wants to identify potentially hostile behavior and intent, in order to uncover clandestine foes. Charles River Analytics is using its Army cash to build a so-called “Adversary Behavior Acquisition, Collection, Understanding, and Summarization (ABACUS)” tool. The system would integrate data from informants’ tips, drone footage, and captured phone calls. Then it would apply “a human behavior modeling and simulation engine” that would spit out “intent-based threat assessments of individuals and groups.” In other words: This software could potentially find out which people are most likely to harbor ill will toward the U.S. military or its objectives. Feeling nervous yet?
All of these technologies are either already integrated into daily life or coming down the pike. In Constitution 3.0,
Jeffrey Rosen invited scholars and futurists to envision how current
civil liberties protections would fare when faced with technologies of
the future (not well). One chilling possibility highlighted in the book:
What if Facebook and Google decided to archive and post footage from
millions of surveillance cameras?
In a speech to Brookings Institute,
Rosen says this not-unlikely scenario would make it possible to, "sign
onto Google or Facebook, click onto a picture of me, for example,
back-click on me to see where I’d come from this morning, forward click
to see where I’m going this afternoon, and basically have 24/7
surveillance of everyone in the world at all times."
Tana Ganeva is AlterNet's managing editor. Follow her on Twitter or email her at tana@alternet.org.
