During one of his last appearances before Congress as FBI director, Robert Mueller confirmed what many insiders already assumed. Asked by Senator Chuck Grassley whether the FBI operates drones domestically and for what purpose, Mueller responded, "Yes, and for surveillance." This was a stunning revelation, particularly since most Americans associate drone use with robotic killing in distant lands.
And, Grassley followed up, had the FBI developed drone guidelines to ensure that American privacy was protected? The Bureau, Mueller replied, was in the beginning phase of developing them. Senator Dianne Feinstein, hardly a privacy hawk, seemed startled by the answer: "I think the greatest threat to the privacy of Americans is the drone, and the use of the drone, and the very few regulations that are on it today," she said.
The senator shouldn't have been shocked. The government's adoption of new intrusive technologies without bothering to publicly explore their privacy implications—or any safeguards that it might be advisable to put in place first—isn't an aberration. It's standard practice. As a result, Americans are put in the position of secretly subsidizing their own surveillance with their tax dollars.
In July, for example, the ACLU published a report on the proliferating use of automatic license-plate readers by police departments and state agencies across the country. Mounted on patrol cars, bridges, and overpasses, the cameras for these readers capture the images of every license plate in view and run them against databases for license plates associated with stolen cars or cars used in a crime. Theoretically, when there's a hit, police are alerted and someone bad goes to jail. The problems arise, however, when there's no hit. Most police departments decide to hang onto those license-plate images anyway, creating yet another set of vast databases of innocent people's location history that's easy to abuse.
Since technology almost always outpaces the law, regulations on license plate readers are often lax or nonexistent. Rarely do police departments implement data-retention time limits so that the license plates of perfectly innocent people are purged from their systems. Nor do they set up rules to ensure that only authorized officers can query the database when there's evidence that a particular license plate might be attached to a crime. Often there aren't even rules to prevent the images from being widely shared with other government agencies or even private companies. These are, in other words, systems which give law enforcement another secret way to track people without judicial oversight and are ripe for privacy abuse.
As is often the case with security technology—for instance, full-body scanners at airports—there's little evidence that license plate readers are worthwhile enough as crime fighting tools to compensate for their cost in privacy terms. Take Maryland. In the first five months of 2012, for every million license plates read in that state, there were just 2,000 "hits." Of those 2,000, only 47 were potentially associated with serious crimes. The vast majority were for minor regulatory violations, such as a suspended or revoked vehicle registration.
And then there's the Stingray, a device first used in our distant wars and so intrusive that the FBI has tried to keep it secret—even from the courts. A Stingray mimics a cell-phone tower, tricking all wireless devices in an area to connect to it instead of the real thing. Police can use it to track suspects in real time, even indoors, as well as nab the content of their communications. The Stingray is also indiscriminate. By fooling all wireless devices in an area into connecting to it, the government engages in what is obviously an unreasonable search and seizure of the wireless information of every person whose device gets caught up in the "sting."
And when the federal government isn't secretly using dragnet surveillance technologies, it's pushing them down to state and local governments through Department of Homeland Security (DHS) grants. The ACLU of Northern California has, for example, reported that DHS grant funds have been used by state and local police to subsidize or purchase automated license plate readers, whose images then flow into federal databases. Similarly, the city of San Diego has used such funds to buy a facial recognition system and DHS grants have been used to install local video surveillance systems statewide.
In July, Oakland accepted $2 million in federal funds to establish an around-the-clock "Domain Awareness Center," which will someday integrate existing surveillance cameras and thermal imaging devices at the Port of Oakland with the Oakland Police Department's surveillance cameras and license plate readers, as well as cameras owned by city public schools, the California Highway Patrol, and other outfits and institutions. Once completed, the system will leverage more than 1,000 camera feeds across the city.
Sometimes I Feel Like Somebody's Watching Me
What makes high-tech surveillance so pernicious is its silent, magical quality. Historically, when government agents invaded people's privacy they had to resort to the blunt instruments of force and violence, either torturing the body in the belief it could unlock the mind's secrets or kicking down doors to rifle through a target's personal effects and communications. The revolution in communications technology has made such intrusions look increasingly sloppy and obsolete. Why break a skull or kick down a door when you can read someone's search terms or web-surfing history?
In the eighteenth century, philosopher Jeremy Bentham conceived of a unique idea for a prison. He called it a "panopticon." It was to be a place where inmates would be constantly exposed to view without ever being able to see their wardens: a total surveillance prison. Today, creating an electronic version of Bentham's panopticon is an increasingly trivial technological task. Given the seductive possibilities now embedded in our world, only strong legal protections would prevent the government from feeling increasingly free to intrude on our lives.
If anything, though, our legal protections are weakening and privacy is being devalued, which means that Americans with a well-developed sense of self-preservation increasingly assume the possibility of surveillance and watch what they do online and elsewhere. Those who continue to value privacy in a big way may do things that seem a little off: put Post-it notes over their computer cameras, watch what they tweet or post on Facebook, or write their emails as if some omnipresent eye is reading over their shoulders. Increasingly, what once would have been considered paranoid seems prescient—self-defense and commonsense all rolled into one.
It's hard to know just what the cumulative effect will be of a growing feeling that nothing is truly private anymore. Certainly, a transparent life has the potential to rob an individual of the sense of security necessary for experimentation with new ideas and new identities without fear that you are being monitored for deviations from the norm. The inevitable result for many will be self-censorship with all its corrosive effects on the rights of free speech, expression, and association.
The Unknown Unknowns
Note that we've only begun a tour through the ways in which American privacy is currently under assault by our own government. Other examples abound. There is E-Verify's proposed giant "right-to-work" list of everyone eligible to work in the United States. There are law enforcement agencies that actively monitor social media sites like Facebook and Twitter. There are the Department of Homeland Security's research and development efforts to create cameras armed with almost omniscient facial recognition technology, not to speak of passports issued with radio frequency identification technology. There are networked surveillance camera feeds that flow into government systems. There is NSA surveillance data that's finding its way into domestic drug investigations, which is then hidden by the DEA from defense lawyers, prosecutors, and the courts to ensure the surveillance data stream continues unchallenged.
And here's the thing: this is only what we know about. As former Defense Secretary Donald Rumsfeld once put it, "there are also unknown unknowns—there are things we do not know we don't know." It would be the height of naïveté to believe that government organizations across this country—from the federal to the municipal level—aren't engaged in other secret and shocking privacy intrusions that have yet to be revealed to us. If the last few months have taught us anything, it should be that we are in a world of unknown unknowns.
Today, government agencies act as if they deserve the benefit of the doubt as they secretly do things ripped from the pages of science-fiction novels. Once upon a time, that's not how things were to run in a land where people prized their right to be let alone and government of the people, by the people, and for the people was supposed to operate in the open. The government understands this perfectly well: Why else would its law enforcement agents and officers regularly go to remarkable lengths, sometimes at remarkable cost, to conceal their actions from the rest of us and the legal system that is supposed to oversee their acts? Which is why whistleblowers like Edward Snowden are so important: they mount the last line of defense when the powers-that-be get too accustomed to operating in the dark.
Without our very own Snowdens working in the county sheriff's departments or big city police departments or behemoth federal bureaucracies, especially with the world of newspapers capsizing, the unknowns are ever more likely to stay unknown, while what little privacy we have left vanishes.
Christopher Calabrese is a legislative counsel for privacy-related issues for the ACLU in Washington. He has testified before Congress and appeared in many media outlets, including CBS Evening News, the New York Times, and the Washington Post. Follow him on Twitter at @CRCalabrese.
Matthew Harwood works for the ACLU in Washington as a media strategist. His work has been published by the American Conservative, Columbia Journalism Review, the Guardian, Guernica, Reason, Salon, Truthout, TomDispatch, and the Washington Monthly. He also regularly reviews books for the Future of Freedom Foundation. Follow him on Twitter at @mharwood31.
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