CHAPTER 15
THERE IS NO WAY TO MINIMIZE the importance of technology as we examine the evolution of surveillance. The new technology has made possible tasks that would have previously have been unimaginable. In a broader sense it is more important to consider the changing role of surveillance over the decades. It affects our lives far more dramatically than at any time in the past. Within the context of our lives, surveillance has become more prevalent and determinative of the evolution of our society itself. Because of this, there are debates about “data mining” and the extent to which this might undermine a free society.
Data mining, otherwise known as knowledge discovery in data, has become very important in recent years and has become controversial because of its use in predicting behavior. The goal of the process is to extract patterns of knowledge that can be determined from tremendous storehouses of information. With the data warehousing capabilities being used by big data, data mining techniques are being used to enhance the profitability of corporations. Criticisms have been based on the predictive capabilities made possible by the use of machine learning algorithms. Typical objectives include the detection of fraud and the exposure of problems with security procedures.
Objectives associated with law enforcement are even more problematic as data mining has become a predictive policing tool. One such tool known as PredPol is being used by dozens of cities in the United States. PredPol divides communities into 500-by-500-foot blocks and makes predictions about future criminal behavior throughout each day. Using data about people, it predicts who is most likely to be involved in criminal activities each day. This information could make it possible for the police to intervene before a crime takes place or a judge could use the data to predict who is likely to be a repeat offender and render a sentence based on that assumption. The predictive algorithms used in such programs are often based on arrest records. In spite of the shaky foundations of these programs, their defenders argue that an algorithm is less likely to display the bias often associated with human behavior. By contrast, critics have complained that this is simply another instance of data being weaponized against minority communities and is, therefore, racist.
Within the intelligence community, officials tend to defend their collection projects against the accusation they are engaging in data mining. The willingness of Facebook to sell information about 50 million clients contributed to the controversies around this process. Cambridge Analytica appeared to enjoy enormous profit from this activity. Because of scandals such as this, data mining seems to be irrevocably associated with the idea of selling private user information in order to make money. There is also suspicion because of claims to be able to predict outcomes relative to business or even political trends. In spite of controversies, any examination of employment websites will produce numerous hits for data mining and other related job openings.
Technology, of course, has revolutionized almost every aspect of our lives. It has driven the evolution of surveillance techniques away from the simple matter of having an operative watch the movements of a target moving through a city. The lone operative has been increasingly displaced by satellite systems such as Corona photo-reconnais-sance system, which demonstrated its first success in 1960.
In 1976, the KH-11 system produced “real-time digital imagery” that enabled surveillance operations to rise to an entirely new level of precision. The Defense Advanced Research Projects Agency (DARPA) emerged as the CIA’s most reliable partner in creating a new generation of surveillance systems that enhanced capabilities while reducing the risks to individual operatives. In the not too distant past surveillance operations were in the hands of a small group of operatives who risked imprisonment by brutal regimes determined to hide their secrets. Now the skills of those small teams are augmented technological innovations that would have been unimaginable in the early days of the Cold War.
While these large technology advances are invaluable to surveillance operations conducted by governments, they are well beyond the reach of most civilian surveillance companies. However, there are numerous small and affordable gadgets that can aid the private detective who may be running surveillance on a wayward spouse. It is equally important that many of these devices are not beyond the budgets of many companies. The proliferation of private intelligence organizations has been fueled, in part, by the fact that they can augment governmental services and do not labor under legal restrictions that reign in government agencies.
The latter feature of contracting work raises questions about the possible evolution of surveillance related activities. Who is responsible for the oversight and management of the work of private contractors? It is obvious that Congress will have to assume responsibility for this matter. There will need to be clear guidelines to determine when it is acceptable for contractors to undertake sensitive intelligence tasks. In the event of war, these questions become even more compelling and urgent. The outsourcing of government functions may seem attractive to many people but the process threatens to undermine constitutional limits on government.
As our national leadership has recognized the growing power of the tools used in intelligence and surveillance, there has been an effort to maintain a delicate balance between citizens’ freedoms and the need for national security. Before technology was an important factor in strengthening the nation’s police powers, America’s Founding Fathers endeavored to protect citizens against unreasonable searches and seizures. In 1791, this was expressed in the Fourth Amendment to the Constitution. It was not until 1928 that the appearance of new technology moved this concern into the legal spotlight. In the US Supreme Court case Olmstead v. United States, there was a challenge to the practice whereby federal officials collected evidence from wiretaps placed without judicial approval. The ability to use wiretaps of telephonic conversations was a result of a relatively new technological innovation and the Supreme Court approved the practice. A phone call, after all, was not a physical artifact so it did not enjoy Fourth Amendment protection.
Wiretapping is another area in which private companies led the way. Going back to the 1920s, it was private detectives and corporations that used wiretapping to gather information. Corporations employed wiretapping as a way of suppressing unionization efforts. The increased demands during the Prohibition era forced law enforcement to rely on wiretapping.
Over the years, both public and official attitudes toward wiretapping were relatively relaxed. It was with some reluctance that wiretapping for national security reasons was finally accepted. However, wiretapping to catch tax evaders was a different and more troubling matter.
Continuing along these relatively permissive lines regarding surveillance, in 1934 the Federal Communications Act addressed wiretapping and determined that it was legal to collect information in this way as long as that information was not shared outside law enforcement institutions. In 1945, project SHAMROCK was created by the Armed Forces Security Agency. The purpose of this project was to collect information drawn from international telegrams without the requirement of a warrant. In 1952, the work of the Armed Forces Security Agency was taken over by the National Security Agency and SHAMROCK’s surveillance of international telegram traffic continued.
The government’s permissive policies were finally challenged in 1967 when the Supreme Court overturned the Olmstead precedent in Katz v. United States. In the Katz decision, the Court ruled that non-tangible possessions—phone calls and electronic transmissions—were protected by the Fourth Amendment. In 1968, Congress enacted the Omnibus Crime Control and Safe Streets Act that restricted wiretapping. Only the President, in service to national security interests, would be allowed to make an exception regarding federal wiretapping.
Further scrutiny came about as a result of the 1972 Watergate scandal and the hearing of the House Judiciary Committee, which issued articles of impeachment against President Richard Nixon based on illegal wiretapping, misuse of the CIA, and other abuses. In 1975, the Church Committee investigated activities of the CIA and the FBI and revealed that there had been hundreds of cases of warrantless wiretappings and illegal electronic surveillance.
In 1978 Congress passed the Foreign Intelligence Surveillance Act (FISA). Under this act, there would be a secret court that would consider requests for warrants to conduct electronic surveillance. Protection for cell phone conversations and internet communication were added to the Omnibus Crime Control and Safe Streets Act in 1986.
As a result of the terrorist attacks of September 11, 2001 and the passage of the USA Patriot Act, there were changes to FISA procedures and wiretap restrictions became more flexible. In 2003, an AT&T technician discovered a secret room being used by the NSA to conduct data mining operations of internet traffic. In 2005, there were further reports about extensive use of government surveillance to conduct warrantless wiretapping and surveillance operations against internet users. It is generally acknowledged that the US government has complete access to any data that US-based phone companies have collected.
Contemporary electronic surveillance is dramatically different from what took place in earlier times. Until the 1980s, it was largely individualized and focused on specific personalities. The surveillance operations themselves were more specific as law enforcement was investigating known or suspected criminal activities. More recent electronic surveillance is broadly based and not targeted on certain suspects. It is often referred to as dataveillance and is less concerned with what is said in a conversation. Now the surveillance operation is looking for information about who a person called, when the call was made, and where the phone was located. The target is more likely to be the metadata of particular financial transactions.
As can be seen by more recent efforts to limit wiretapping and surveillance by government agencies, there is now a great divide between government surveillance and the activities of private intelligence companies. The current debate is focused on limiting or managing governmental surveillance programs. Private operations are more likely to be under the radar and not subject to official studies or limitations.
There are also legitimate questions about the morality of surveillance. Most citizens feel suspicious of the growing ability of the state to monitor almost any aspect of our public or private behavior. At some point it is essential to weigh the benefits of surveillance against the possible negative impact of surveillance. Even people who are not guilty of illegal behavior may be subject to surveillance and the resultant records may remain on file indefinitely. An average citizen may be justifiably fearful that those records might be used against him at some future date. This knowledge will inevitably have a chilling effect on citizens who have no intention of breaking the law. This fear may well produce a feeling that we need to conform and we must repress the creativity that might make one appear different. The result will be a popular reluctance to express opinions or to become active in the governance of your community.
It is true that the operational capabilities for large surveillance activities are beyond the budgets of most companies advertising their ability to manage surveillance over physical facilities. Their collection activities are relatively mundane, even when they hold federal contracts to supplement governmental collection efforts.
As individual entrepreneurs marketing their services, they are limited. However, the greatest power of private sector capabilities is in the area of management of data, a capability that allows them to overcome existing limits. The internet, from e-commerce to Google, has given private entities the ability to accumulate more information than is held by not only the US government but also probably by all governments combined. As they collect information about citizens, they are not limited by the Fourth Amendment of the US Constitution. By offering services and products, the internet enlists people to voluntarily reveal an enormous amount of personal information.
So, while internet giants like Google face fewer restrictions in conducting surveillance of their users, they are still obligated to share that information with US governmental agencies if they are presented with relevant legal claims. Under certain circumstances they can be required to reveal the actual content of private emails. What we see here is that the power of the private sector complements the authority of the state in order to have full surveillance of the activities of citizens. In addition, many governments have entered into partnerships for sharing information they have collected. The first nations to do this were the United States, the United Kingdom, Canada, New Zealand, and Australia. Since creation of this so-called “Five Eyes Alliance,” several other governments have been included in this arrangement.
Citizens who hope to ensure their privacy can utilize a VPN service or they can shift their location in order to get a new IP address. But the government has unlimited resources and can defeat most efforts to protect information. Moreover, most governments have passed or hope to pass legislation to require internet service providers to retain all data about the internet activities of their customers. Some governments are trying to establish a legal framework under which they could utilize Trojan Horse software so that agencies would always have a window into civilian databases.
For years debates about the legitimacy of surveillance have been shaped by the notion of a reasonable expectation of privacy. There was a comfortable assumption that many things should be entirely beyond the range of surveillance. Therefore, what a person did on the street was very different from what might be done in the home. There was no reasonable expectation of privacy regarding activities on the street. As more and more of our activities were conducted on the internet, the notion of reasonable expectation of privacy was under pressure. Online surveillance is routinely undertaken by the state. At the same time, state cyber-policing of the internet in an effort to prevent certain types of crimes is also accepted policy. The authority of regulatory agencies has expanded to cover many internet-based activities and, as a result, there is much less of an expectation of privacy when using the internet. Consequently, people are reluctant to exercise constitutionally protected freedoms or even to engage in legitimate activities on the internet. When we assume that the state is watching, it is not so different from how a driver feels when being stopped by police while driving. There is a fear that you may have unknowingly violated an obscure law. With the abundance of laws regarding what is legal or illegal on the internet, it often seems safer to do nothing. Surveillance, by itself, can deter people from exercising legitimate rights. This phenomenon has sparked a debate about the chilling effects of regulatory actions that are becoming routine.
One of the great challenges that exist today is that our scientists move rapidly in developing surveillance technologies needed by both government and the private sector. At the same time, the speed of the scientists cannot be matched by the lawmakers who are supposed to maintain and develop a legal framework to protect the privacy of citizens. Legislative bodies have not been able to alleviate the disparity of power that is a result of the massive collection capabilities that threaten to overwhelm the freedoms of citizens. The combined resources of the state and the powerful corporations working with it have become an insurmountable Leviathan that is beyond the reach of a countervailing power.
It has long been said that knowledge is power. The development of modern technology has created devices that can collect infinite amounts of information. As the state, which already has a monopoly of force, developed its hold on mountains of data, its authority grew beyond the ability of individuals to limit its control over society. Corporate entities, once primarily based within the nation, have expanded their reach to global dimensions. Thus, multi-national corporations now have virtually unlimited control over citizens. The instrument for utilization of this power is now social media which can shape public debates and influence the outcome of elections. As a result, social media, operating as a utility, determines who gets jobs, how contracts are awarded, and what constitutes an acceptable component of our culture.
What is now referred to as “big tech” has a degree of power that would have been unimaginable a few decades ago. The most miniscule information about a person can be marshalled to paint an unrecognizable image. In the not too distant past, it was possible for people’s past misdeeds to be forgotten or even forgiven. That is no longer possible and something as trivial as misbehavior in high school can continue to appear in records that may become public if you are about to receive some prestigious honor such as a nomination to the US Supreme Court. By mounting a concerted effort using the internet, no person is immune to fatal levels of character assassination.
A pseudo-scientific psychological profile can be shaped by presenting an assortment of facts in a destructive fashion. The result may well be an image that the individual would not recognize as himself. The specter of such an attack serves to prevent many citizens from entering politics or even participating in various community functions. Because social media platforms were designed to be addictive, millions of people are drawn to them and their opinions or even self-images are shaped by what appears on those platforms. Through their manipulation of massive amounts of data, the big tech companies have amassed unprecedented power that rivals the actual power of the state in many respects.
As noted above, when the government decides to outsource surveillance to private companies, it is able to defeat requirements for transparency. Those private companies are not accountable to the public and cannot be subjected to a FOIA request or any other form of protective legal device. Perceived threats to the public—terrorism, for example—are used as justification of draconian measures that would have been inconceivable even during the Cold War. Because there are so many opportunities for enrichment, these private companies have a constant motive to track their fellow citizens.
Companies tout the economic benefits of modern surveillance technology. Canadian insurance providers argue that greater use of these technologies will have an immediate benefit to consumers who will experience lower insurance costs as fraud can be more easily detected. Most importantly, insurance providers say it will be possible to reward “good” customers who always comply with safety requirements. At the same time, customers exhibiting “reckless” behavior will be punished with higher rates.
There is a widespread willingness to accept restrictions when people are motivated by fear. Fear of health threats enabled officials to assume emergency powers in response to the COVID-19 pandemic. Much of this work is being undertaken by TECH5, a Geneva-based international technology company that is developing biometric-driven identity management solutions. It has taken the lead in a health surveillance program described as a digital health certificate. Seven EU nations—Bulgaria, Croatia, the Czech Republic, Denmark, Germany, Greece, and Poland—were early participants in this program. Holders of the digital health certificates will be able to travel in any of the participating member states.
COVID-19 is also helping transform biometric surveillance into a routine technological application to promote health maintenance. BioButtons, devices that monitor an individual’s temperature, heart rate, respiration, and location, were introduced at Michigan’s Oakland University as a requirement for all returning students. In Ontario, the provincial government introduced a plan under which students would wear a contact tracing wristband that would vibrate when the wearer gets within six feet of a COVID-positive person. The data would be preserved in order to determine patterns of association.
Of even more immediate value, according to surveillance advocates, is the protection of citizens’ property. Among the first to see this advantage was Amazon, a company whose survival is dependent on their ability to leave an unattended package at your door. Amazon could sell security to customers willing to purchase the Ring app, a camera-equipped doorbell designed to catch package thieves.
The Ring can protect your front porch, but another company guarantees to transform your entire neighborhood into a digital gated community. Flock Safety is a new technology firm that sells cameras directly to civilians. Police departments have long been using automatic license-plate readers that are sold by technology vendors. By contrast, Flock Safety markets their products to private citizens whom it can approach through homeowners’ associations. In its advertising, Flock Safety maintains that its cameras are used in thirty-five states and claims that law enforcement personnel cite Flock’s role in reducing crime. When Flock’s cameras operate in a neighborhood, it records everything that happens and checks every automobile entering the area to determine if it belongs to a resident. The company promises that facial recognition programs will soon be added to their cameras.