So who is watching the gate? Well, the courts are slowly getting involved. A U.S. Supreme Court decision last June determined that in the absence of a search warrant, the government’s use of a thermal imaging device to monitor heat coming off the walls of a suspected marijuana grower’s private residence in Florence, OR, violated the Fourth Amendment prohibition against “unreasonable searches and seizures.” The ruling could have far-reaching consequences for how new, more powerful surveillance technologies can be deployed. Overall, however, the responsibility of surveillance technology management and regulation is up for grabs in the United States, even as the technology proliferates. And so whether society goes Orwellian or not could well hinge on how responsibly the databases, biometric details and all the rest are managed and protected. After all, notes the ACLU’s Steinhardt, it’s a small step from a technological advance to a technology abuse.Take the fact that the faces of a large portion of the driving population are becoming digitized by motor vehicles agencies and placed into databases, says Steinhardt. It isn’t much of a stretch to extend the system to a Big Brother-like nationwide identification and tracking network. Or consider that the Electoral Commission of Uganda has retained Viisage Technology to implement a “turnkey face recognition system” capable of enrolling 10 million voter registrants within 60 days. By generating a database containing the faceprint of every one of the country’s registered voters-and combining it with algorithms able to scour all 10 million images within six seconds to find a match-the commission hopes to reduce voter registration fraud. But once such a database is compiled, notes John Woodward, a former CIA operations officer who managed spies in several Asian countries and who’s now an analyst with the Rand Corporation, it could be employed for tracking and apprehending known or suspected political foes. Woodward calls that “function creep.”
Function creep is where things get really dicey for privacy advocates. Several grass-roots efforts now under way seek to rein in surveillance technology through more responsible privacy legislation. The Privacy Coalition, a nonpartisan collection of consumer, civil liberties, labor and family-based groups, is trying to get federal and state lawmakers to commit to its “Privacy Pledge,” which contains, among other things, a vow to develop independent oversight of public surveillance technology and limit the collection of personal data. And several organizations, including the AFL-CIO, Communications Workers of America, 9to5, National Association of Working Women and the United Auto Workers, are supporting legislation to restrict electronic monitoring of employees. As Steinhardt declares, “We can’t leave this to systems designers or the marketplace.”
In spite of these broad efforts, a number of factors, not the least of which is disagreement in Washington about what form such legislation should take, are making it difficult to put words into action. Last year Congress debated the Notice of Electronic Monitoring Act, which would have required companies to notify employees if they were being watched. Although that legislation died in committee, it will probably resurface again this year. As far as individual state laws are concerned, only Connecticut requires employers to tell employees if they are being monitored.
Which leads to the question of what exactly constitutes “private” activity. As former spymaster Woodward observes, a total-surveillance society will not actually expose individuals that much more than ordinary public circulation does now. “Once you leave your house and enter public spaces,” he says, “just about everyone you can see can see you right back.” In other words, you do not walk around most of the day with an expectation of privacy. Your face is not private, so if a camera sees you, it’s no big deal. What’s more, asks Woodward, even if rich and powerful entities, such as the government or megacorporations, had sole access to a system capable of watching everyone all of the time, why would they bother? “The bottom line is that most of us are very boring. We flatter ourselves to think that someone is building a multibillion-dollar system to watch us,” he says.
Even if public opinion does manage to slow down the deployment of surveillance infrastructure, no one involved in the debate thinks it will stop some form of Big Brother from arriving eventually. In his 1998 book The Transparent Society, which is well known in the privacy advocacy community, science fiction author and technology watcher David Brin argues that society inevitably will have to choose between two versions of ubiquitous surveillance: in one, only the rich and powerful use and control the system to their own advantage; in the second, more democratic future, the watchers can also be watched. Brin concedes that the latter version would mean everybody’s laundry hung out in public view, but the transparency would at least be mutual. Rent a porn video and your wife knows it; but if she drives to your best buddy’s house four times a week while you’re at the office, you’ll know that also.
Whether or not the coming era of total surveillance fits neatly into one of Brin’s scenarios will be determined by a complex equation encompassing technological development and the decisions that local, state and federal governments choose to make. The question largely boils down to this: is privacy a right or a privilege? Most Americans assume it is a right, as in our “right to privacy.” But the truth of the matter is that privacy isn’t guaranteed by the Constitution. It is implied, certainly, but not assured. This subtle difference is being tested right now, within our own neighborhoods and workplaces.