THE ACLU ON SURVEILLANCE:
Despite Its Overarching Assessment Of How Monitoring Harms Privacy,A New Report Fails To Offer Constructive Solutions

By JULIE HILDEN


julhil@aol.com
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Tuesday, Jan. 21, 2003

Last week, the American Civil Liberties Union issued a Report on surveillance entitled "Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society." The Report's overriding message is that the Big Brother society many have believed to be merely a dystopian vision, is now threatening to become a contemporary reality. And if it does, the ACLU fears that Americans' privacy will effectively disappear.

In public places, the Report projects, we soon could be constantly surveilled, due to the combined impact of recent technological advances and government initiatives. Increasing numbers of police and private security cameras mean we'll never be safe out in public. Meanwhile, we'll need to worry about the "data trails" we leave in places such as broker's and doctor's offices too. And even at home, our online activity could be closely monitored through further "data surveillance."

The ACLU Report describes the significant dangers to individual privacy that exist now, while projecting others that may exist in the near future. It also suggests what can be done to address those dangers.

While the Report should be lauded for taking a rare bird's eye view of law and technology, and the way they combine, it falls short in other respects. It claims implausibly that the surveillance technologies it describes will be ineffective for the very purposes for which they are designed. And it makes pie-in-the-sky recommendations for legal change that have little to no hope of being implemented, missing a chance to make more constructive suggestions. Finally, in order to cater to its audience, it essentially leaves out surveillance's most likely victims: Arabs and Muslims who are American citizens, or are visiting or residing in the United States.

The Report's Top Concerns: Three Kinds of Surveillance

The ACLU Report argues that we should be very concerned about the spread of "video surveillance": video cameras recording public space. It also worries about "data surveillance," by which private companies and/or the government can follow the "data trail" each of us leaves. Finally, it expresses concern about "communications surveillance" - the government's increasing ability to conduct warrantless searches targeting communications through wiretaps and other measures.

As the Report notes, many of the government's increased powers in the area of communications surveillance are a result of post-September 11 legislation, and of recent rulings by courts including the FISA Court (A series of columns by Anita Ramasastry for this site explains the specifics of the legislation). Thus, the report is timely, because the new legislation has changed the privacy landscape dramatically. Now is the time to put the new legislation in the context of accompanying technological developments, and the Report has done just that.

The Threat of Centralized Surveillance

The Report suggests that it is the centralization of surveillance that poses the greatest danger. Various different video cameras or databases might uncover an individual crime - capturing video of a mugging, or providing evidence of an identity theft. But it is the consolidation of different methods and sources of surveillance, the Report finds, that should be a matter of concern.

Consider, for instance, this development: The Report notes that police officers now can simultaneously view video of different places across the city, collected together, in much the way a desk guard in a private building can watch different locations within the building at the same time. Then that video can be archived, and searched using face-recognition technology.

Now suppose the police believe, but cannot prove, that a particular individual is a criminal. They can simply search the archive for suspicious behavior and try to put together a circumstantial case. The probable cause requirement - by which police can only search when there is a reason - is thrown out the window. And the defendant may be chosen first, and the case put together later.

Further Surveillance Problems: Sensitive Data, and Government Involvement

The Report also argues persuasively that data surveillance is all the more threatening because certain sensitive data - personal medical information, genetic information, and financial information - has now become easily accessible, thanks to weaknesses in data privacy protections in various areas.

In particular, the report points out that DNA information is very easy to acquire without the subject's consent, or even his or her knowledge. Indeed, one private service described offers to do paternity tests even based on such surreptitiously-collected material such as a discarded Kleenex or wax from a hearing aid.

In addition, the Report points out insightfully that the risks of data surveillance are intensified when the government gets into the database business. Yet many different agencies already maintain such databases, and we can only expect more to be used in the future.

Moreover, the government's "Total Information Awareness" (TIA) project threatens to combine these databases - and to do so on a rolling basis, so that new information from additional public or private databases can continuously be incorporated into a single huge consolidated database.

Again, centralization's dangers are apparent. Want to make a case against a political opponent? Just search all the data on him or her; something is sure to come up that can be made to look bad. And even if the information does not suggest a crime, it still can be very damaging, and an invasion of privacy: Perhaps the target has visited legal porn websites? Or purchased books online that seem radical? The possibilities are endless.

Similarly, the Report notes, TIA's less-discussed "close cousin" Computer Assisted Passenger Screening (CAPS II) will start collect data on airline passengers with the goal of enhancing airport security by flagging potential "problem" passengers for special attention. But what will indicate a "problem" passenger? People may be listed forever on CAPS II because they were unwise enough to buy a number of one-way tickets, or visit the "wrong" countries too many times.

A New Reality the ACLU Report Ignores

The Report is certainly correct that all these developments are powerful and troubling - the more so because they are all the more potent when combined. But after describing the developments and their dangers, the Report ventures into the far dicier territory of describing what should be done about them. And here is where the Report falters.

The Report suggests privacy laws, and Fourth Amendment interpretations, that would effectively outlaw much of the surveillance currently being conducted. However, given that Americans desperately want greater protection from terrorism after the September 11 terrorism attacks, these solutions aren't realistic.

Yet the Report fails to offer what we desperately need: alternative, effective anti-terrorism methods that would not violate privacy. Moreover, advising independent, life-tenured federal judges about how to interpret the Fourth Amendment is always a losing endeavor. Advising lobbyists, legislators, non-profits, and individual citizens as to what they can do is far more useful.

. Granted, the Report does make one nod to moderation - noting that it might be possible to preserve privacy if the government were to "rein in particular new technologies such as surveillance cameras, location-tracking devices and biometrics. " But which technologies should be reined in, and how? And which, conversely, can reluctantly be let loose to roam, because they are comparatively more innocuous? The Report never answers these questions. Instead, it seems to seek a complete rollback of all objectionable technologies. It's not going to happen.

Unless it provides alternatives that can protect both privacy and security, the ACLU is unlikely to convince anyone of the merits of its prescriptions, especially in the current climate of fear of terrorism. In the end, then, the report becomes radicalism for radicalism's sake - making suggestions no one will ever take, just to make them.

Some might argue that this radicalism is precisely the ACLU's role. But I think it ought to be more than merely a gadfly. Instead, it should offer palatable alternatives that could actually become law in the near future.

Underestimating the Potential Effectiveness of Surveillance Measures

Instead of offering constructive solutions in a time of difficult trade-offs, the Report takes the easy way out, by belittling the benefits of surveillance. The implicit message is this: Since surveillance never works anyway, we don't have to propose alternatives to it. Rather than replacing something effective and bad with something effective and better, we can simply replace something ineffective with nothing at all.

It has little factual basis for doing so: While the Report's descriptive sections are adeptly reasoned and heavily footnoted, its sections disparaging surveillance's benefits are generally bare of evidence. For instance, the Report asserts, with respect to post-September 11 legislation, that "few of these hastily enacted measures are likely to increase our protection against terrorism."

Why not, though? They were designed to do so; they seem likely to do so; and if they were so useless, they wouldn't make the ACLU and others so nervous. Common sense suggests that the technologies can't be both overwhelmingly threatening because they are so intrusive, and totally useless for the protective purpose for which they are designed. Yet the ACLU Report seems to want us to believe both propositions.

For example, consider face-recognition technology- which the ACLU itself acknowledges is not much used except at high-risk sites such as airports and the Statue of Liberty. We all remember the airport videotape of Mohammed Atta, the suspected ringleader of the September 11 terrorism attacks: He was caught on camera, and if his face had been on file, he might also have been stopped before the plane he boarded ever took off. The idea that face-recognition technology at these sites won't even be likely to cut down on terrorism is ridiculous.

In one of the rare instances in which it does cite evidence to back up its pessimism about these technologies, the ACLU Report points out that, according to studies, those monitoring video screens inevitably find that their attention wanders since the enterprise is "boring and mesmerizing." The conclusion the ACLU draws from this is that video monitoring is futile. But the real conclusion that should be drawn instead, is that we need to find creative ways (Half-hourly breaks? Rotating security guards?) to combat the basic human tendency to get tired of looking at the same thing for a long period of time.

The ACLU Report is defeatist about the potential of such technologies for an obvious reason: It doesn't like them. So it argues that they are doomed to failure, no matter how much we try to improve them, or how brilliant the scientists and engineers enlisted might be.

This argument, though, falsely pretends there is no trade-off when we protect privacy, because surveillance is ineffective anyway. It's not true: There's a dramatic trade-off between security and privacy, and we need to decide whether to make it.

When we do, we need to remember that privacy costs are also liberty costs: Many of us might alter our activities if we knew that they would all be known to the police.

Leaving Out the Most Serious Risk of Surveillance: Persecution of Arab-Americans

Finally, the Report is cowardly in another respect as well: It essentially leaves out the plight of surveillance's most likely victims, Arab-Americans, Muslim-Americans, and Arabs and Muslims who are citizens of other countries but residing or visiting here.

Somewhat amazingly, page one of the Report offers two hypothetical scenarios in which privacy is violated, neither of which directly addresses how surveillance can discriminate against Arab-American. In the more egregious of the two, a soccer mom-ish woman gazes innocently at "curious items" in a sex shop window, but never enters. However, because a black box in the store has taken information from a chip in her driver's license, she then receives a solicitation from the store "mentioning her 'visit' and embarrassing her in front of her family."

Soccer moms as a class, however, are hardly in jeopardy. Arab-Americans, as a class, are. For instance, consider Yaser Hamdi, an American citizen of Arab descent who is currently being detained incommunicado, without access to a lawyer, with a federal court's blessing. (See Joanne Mariner's column describing Hamdi's situation in more detail.)

The ACLU Report worries that databases are likely to confuse terrorist activities with those that are merely "quirky, eccentric, or riddled with suspicious coincidences." But the main danger is that activities done by those of Arab descent, or Muslim belief, could be monitored and styled as "terrorist" even when they are not.

The danger is that, to take another hypothetical, a face-recognition camera will be positioned near a mosque whose activities are deemed "suspicious." Religious exercise may thus be transmuted into criminal activity, with the government checking to see who might have happened to be in attendance when terrorist cell members were, too, and investigating those who are simply devout.

The real fear, then, is that surveillance will work in tandem with, and encourage, racial/religious profiling. The Report should say so in so many words. It may not win the ACLU many friends to focus on the rights of Arabs and Muslims, but it's so clearly the right thing to do. (It wasn't too popular to focus on the rights of Japanese-Americans during World War II either, but history has vindicated those who did.)

Despite all the Report's flaws, it makes an important contribution, by painting what is perhaps the first complete and honest portrait what may become our ugly new "surveillance society." Unfortunately, however, the Report offers little beyond the portrait's shock, failing to offer a compelling vision of how it might be re-painted, or an honest companion portrait of who the likely victims of such a society will be.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her first novel will be published in the U.S. in Summer 2003 by Plume Books, in the U.K. by Bantam Books, in French translation by Actes Sud.