A bumper sticker countered:
BUSH IS LISTENING
USE BIG WORDS.
CHAPTER SEVEN
The Right to Be Let Alone
I have here in my hand a list …
—Senator Joseph McCarthy
THE POETRY OF PRIVACY
NOBODY KNOWS WHERE we are. Our sailboat is anchored near the shore of a Maine island, in a quiet cove disconnected from the technological world. Our cell phones pick up no signal here, so their location cannot be traced. I can write on this computer, but the Internet is inaccessible, so I can’t be monitored sending e-mails or visiting Web sites. Our ATM and credit cards are useless in this pristine place, so they generate no “transactional data,” in the jargon of police intelligence. No security cameras survey this rough coast of granite and spruce. My wife, Debby, and I are happily invisible.
We aren’t trying to hide, just basking in our natural privacy. Here, we are the sole owners of our seclusion and our freedom, setting our courses and choosing our harbors subject only to our whim and the wind. Nobody can watch us.
As pure and genuine as this feels, it is uncommon to the twenty-first century. We have vanished from the screen, leaving no electronic trails—but only in the present and just for a while. Our past has been intricately recorded, and the moment we reenter the ordinary world—the moment we make a call, send an e-mail, pay a bill, withdraw some cash, book a plane ticket, drive through a toll booth, enter a hotel room with a key card, even walk into certain buildings—we are back in view, and the government can see us if it wishes.
The Supreme Court seems to think that we have a choice about this reentry, that living a normal life is optional, that whenever we punch in a phone number or send a check or use a piece of plastic in our wallets, we give bits of personal data away willingly, not by necessity. In doing so, by the justices’ reasoning, we voluntarily relinquish our Fourth Amendment right to keep information about ourselves secure. The contents of domestic communications by e-mail and phone still require warrants to obtain, but the addressees and subject lines of e-mails, and the numbers we call, are easily accessible without judicial oversight. In other words, the Court has ruled that phoning, traveling, banking, and other everyday activities are purely elective, for which we freely discard a constitutional protection.
The Court has always been slow to catch up with technology. Not until 1967, more than half a century after the first transcontinental telephone line was strung, did the justices protect phone conversations by finding warrantless wiretaps unconstitutional. Their ruling reversed an antediluvian opinion that had stood since 1928, when the Court decided in Olmstead v. United States that it was OK for agents to tap bootleggers’ phones without warrants, because their voices were transmitted outdoors where no search or seizure could occur, and therefore no violation of the Fourth Amendment could be committed. “The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant’s house or office,” the majority wrote. “The intervening wires are not part of his house or office, any more than are the highways along which they are stretched.”1 This was known as the trespass theory of the Fourth Amendment, which saw no infringement unless agents entered private property uninvited.
That old-fashioned view wasn’t erased until Katz v. United States in 1967, when the Court devised a new test to determine the Fourth Amendment’s jurisdiction—“first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”2
Our expectation of privacy has now plummeted. Especially since September 11, 2001, we have submitted our personal space to routine invasions. We have grown so numb to the indignities of airport searches that we shamelessly whip off our belts and jackets and shoes, allow strangers to pat our bodies and paw through our toiletries, flash picture IDs at the least provocation, and even parade through a growing number of scanners that render us naked on-screen. Protests by angry travelers have fizzled; helplessness prevails. “I’m thinking of starting my own airline, which would be called: Naked Air,” the columnist Thomas L. Friedman wrote in December 2001. “Its motto would be: ‘Everybody flies naked and nobody worries.’ Or ‘Naked Air—where the only thing you wear is a seat belt.’ ”3
As a real-life alternative, more than 260,000 travelers eagerly acquiesced to government background checks, fingerprinting, and iris scans (and paid about $200 a year) just to get into express lanes and save a few minutes at airport security with the Clear card from Verified Identity Pass—before the company suddenly went out of business.4
Where the Fourth Amendment still applies—as in personal searches—authorities extract preemptive consent in exchange for entry, not only at airports and courthouses but even on Maine State ferries, which have been adorned with signs reading, “Boarding This Vessel Is Deemed Valid Consent to Screening or Inspection” and “All Persons and Vehicles Aboard This Vessel Are Subject to Electronic Monitoring/Surveillance.” Searches are not actually done on the ferries, but closed-circuit television cameras, known as CCTV, sweep the little island terminals, which are now garishly lit at night like shopping malls before Christmas. On board, cameras give the captain and crew in the wheelhouse views of the passenger cabins below—a bizarre convenience one winter’s day on the boat between Swan’s Island and Bass Harbor. With the heat in a cabin too low, shivering high school students held a handwritten complaint up to the camera. The engineer soon appeared; he couldn’t read the writing on the screen and wondered what it said. We’re cold! the kids declared, and so they got some warmth. Being watched is sometimes useful.
Americans (and not only Americans, of course) are induced constantly to expose themselves to monitoring. They welcome “cookies” into their computers for the convenience of being recognized and catalogued by marketers, they reveal their mothers’ maiden names and their Social Security numbers to anonymous customer-service agents in Bangalore, and they seem entirely comfortable in the ubiquitous lenses of camera phones and security cameras. In a kind of mass exhibitionism, many put intimate videos and information on YouTube and Facebook and MySpace for the world to see, place webcams in their bedrooms for streaming online, and tweet constantly on Twitter about the mundane things they’re doing.
At some level, the violation of privacy is a thrill—gee, they know what I want to buy and eat and see and read! Outside attention seems akin to fame, and it appeals to a lot of people, whether the noble cause is consumerism or national security. After all, if they’re watching a good guy like me, they’re surely watching the bad guys, too. I feel safer. “To keep our national defense up,” wrote William Safire, “we have let our personal defenses down.”
So irresistible are banking and shopping online, so enticing is the ease of e-mail, that hardly anyone now is careful to keep personal and sensitive information out of the digital universe, where it can be hacked and read and saved indefinitely. Incautious embezzlers, fraudsters, and inside traders send and retain self-incriminating e-mails, oblivious to their ready accessibility by government agencies trolling for evidence.
Yet against this nonchalance runs a current of discomfort. Government snooping draws complaints in blogs and chat rooms and dining rooms. Some citizens begin to act as if someone is listening or looking in, and they take precautions. Reporters use disposable cell phones to avoid exposing anonymous sources in case calling records are secretly obtained. A producer doing a television documentary on circumcision hesitates to type the word into Google because it links to pictures of naked children, “and that can be misconstrued,” he tells The New York Times. A telecommunications engineer worries that her interest in Palestinian issues will spark interest from “someone in my government [who] would someday see my name on a list of people who went to ‘terrorist’ web sites.”5 A scientist friend of mine uses euphemisms in e-mails to colleagues and avoids words he imagines might trigger a data-minin
g program.
And a fog of fear creeps into the lives of some who feel especially vulnerable. Following a minor car accident a few years after 9/11, a naturalized U.S. citizen who had been raised in Pakistan pleaded desperately with his American-born wife not to make an insurance claim, lest he end up in some database with vague, unwelcome consequences. Some Americans now think twice before donating to Muslim charities.
Employees would be also advised to think twice when sending text messages from their workplace pagers, even when they work for government agencies, which are subject to the Fourth Amendment. A California police officer, Jeff Quon, was disciplined after sexually explicit texts were discovered in his account. He sued, challenging his employer’s right to read his messages. The police department, which had a contract with a private firm setting a ceiling on the number of characters per month, was doing an audit to see whether pagers that exceeded the limit were being used for professional or personal messages. In 2010, the Supreme Court, in City of Ontario v. Quon, found the search “reasonable” under the Fourth Amendment, since it was not investigatory but done for a work-related purpose, and “was not excessive in scope.”6
The concept of privacy may or may not be in the Constitution. The word is never mentioned, as conservatives accurately observe, the principle never explicitly articulated. Yet liberal and moderate judges see privacy woven implicitly into the First Amendment’s guarantee of the rights to worship, speak, and assemble, and into the Fourth Amendment’s defense of “persons, houses, papers, and effects against unreasonable searches and seizures.” What do these limits defend, if not the private zone of individual life and action? Griswold v. Connecticut, which struck down bans on contraception, and Roe v. Wade, which overturned prohibitions on abortion, found that privacy was mixed into the mortar of the Constitution.7
In 1928, when the Court approved the warrantless tapping of telephones in Olmstead v. United States, Justice Louis Brandeis coined a famous phrase in his dissent. “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness,” he wrote.
They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.8
The right to be let alone has intrinsic worth, difficult to define and explain and justify in a policy debate, especially today in a time of terrorism. Its virtue cannot be measured by pragmatic rationales, its purpose cannot be calculated with any precision. Privacy is like a poem, a painting, a piece of music. It is precious in itself.
Government snooping destroys the inherent poetry of privacy, leaving in its absence the artless potential for oppression. At the least, if the collected information is merely filed away for safekeeping, a weapon is placed in the hands of the state. If it is utilized, acute consequences may damage personal lives. Even where government is benign and well-meaning—a novelty that neither James Madison nor Tom Paine imagined—the use of everyday information about someone’s past to predict his behavior can lead to obtrusive mistakes known in the jargon as “false positives.” Worse, the power of surveillance tempts the executive branch to aim at political opponents or “others” who seem “unpatriotic.” This is especially so when courts and legislatures retreat and fail to check and balance, for the vacuum they leave will be filled by expanding executive authority.
Those who trust the state make this standard argument: If you’re doing nothing wrong, you have no reason to worry about being bugged. “I love comments like this,” wrote “Andrew” in an online posting about an ABC story on tapping cell phones. “What happens when they decide the websites you view are ‘wrong’ or the books you read are ‘wrong’?” Or, in states with laws against certain sexual activity, another reader suggested, why not accept a policeman in your bedroom, since you’re not doing anything “wrong”?9
If you think you’re being constantly watched, you may behave differently, for better or worse—better if you hesitate to shoplift because you’re on camera, worse if the spying steals your political fearlessness.
Yet the deterrent effect is not always dramatic. England, which tried to curtail Irish terrorism by saturating itself with CCTV during the 1990s, saw crime fall only slightly in some areas, 2 to 6 percent,10 a drop possibly caused by other variables, including declining unemployment and shifting police tactics. Ever-hopeful officials think the statistics may be improved by cameras with loudspeakers so operators who spot wrongdoing can scold miscreants at high volume. Meanwhile, some misdeeds merely move out of view, as prostitution did in Hull, England, when twenty-seven cameras were installed at a housing project. Prostitutes actually felt safer, the legal writer Jeffrey Rosen reports, but their clients were scared off, “especially after the police recorded their license numbers, banged on their doors, and threatened to publish their names in the newspapers.” The hookers went inside or moved to the city’s red-light district.11
It’s boring to gaze perpetually at routine street scenes, so CCTV operators relieve the monotony with voyeurism. Rosen watched the watchers in Hull for three hours and noticed that they zoomed in on good-looking women or spied on couples making out in cars. “ ‘She had her legs wrapped around his waist a minute ago,’ one of the operators said appreciatively as we watched two teenagers go at it.”12 Privacy advocates in the United States have proposed that CCTV recordings be made available to law enforcement only with a search warrant.
In the eternal confidence that technology will outperform humans, software developers are coming up with programs to recognize both certain behavior and certain faces. The Modular Integrated Pedestrian Surveillance Architecture System sets off alarms if a camera detects unusual motion as in people fighting, someone loitering, a person repeatedly walking past the same spot, or a bag left unattended—in which case the file can be rewound to see who put it there.
FaceIt matches a face on camera with one in a database, often erroneously at this stage of technological skill. It was used on tens of thousands of fans entering the 2001 Super Bowl in Tampa and spotted nineteen people who supposedly resembled those with outstanding warrants, but for only minor offenses. The accuracy was never checked, because officers couldn’t find any of the nineteen after they melted into the crowds. The police then installed the network in Tampa’s nightlife district, Ybor City, where it was defended as a more efficient version of a cop standing on a corner with a mug shot. For two years, it spit out false positives, mixed up men and women, and failed to lead to a single arrest, so it was finally abandoned. There’s nothing quite like a cop holding a mug shot after all.13
Not only sights but also sounds are being fed into police computers, with more accurate results. ShotSpotter, a system installed in a few American cities, can determine a gunshot’s location within ten to twenty feet by triangulating the noise received by sensors the size of coffee cans, which are concealed atop buildings in high-crime areas. (Gang members get it: They fired at technicians placing microphones in Los Angeles and Oakland.)14
At Washington, D.C.’s Joint Operations Command, a darkened room on the fifth floor of police headquarters, walls covered with huge screens depict jerky scenes from major streets and Metro stations, maps, TV news channels, and lists of recent crimes constantly updated. Here, in comfortable swivel chairs at computer consoles, officers monitor neighborhoods whose residents hear so much gunplay that they’re too jaded to bother calling 911—or, if they do, can’t pinpoint the location. Originally designed to monitor earthquakes, the acoustic software can distinguish between a car backfiri
ng and a gun firing, says the center’s commander, Captain Victor Brito, who insists that the microphones are designed to pick up only loud bangs, not conversations. The explosive noise rings out in the command center, a location flashes onto the map, and a street address appears on the computer screen. In several instances, police have been dispatched without a 911 call, or long before, to arrive quickly enough to find the gun or to arrest a fleeing suspect, as officers were able to do in the murder of a landscaper in October 2006. The FBI is paying for the system.
Better yet, while the police watch the public, the public watches them. In Gadsden, Alabama, cops were beating prisoners in an elevator that took them from courtrooms to jail cells, City Councilman Robert Avery told me, until he got closed-circuit cameras installed in the elevator and cellblock. The abuse rate plummeted.
In Washington, D.C., one Friday afternoon, as the men and women of a narcotics squad began a briefing on search warrants they were about to execute, Sergeant J. J. Brennan warned them about monitoring. Businesses’ video and audio surveillance are widespread, he cautioned: Officers in the Fifth District had just been suspended after videotapes showed their brutality against a man they’d chased into a liquor store. “Stores have cameras, some have cameras outside,” Brennan said as his squad sat around a long table. “I’d hate to see one of you guys spend a year or two in noncontact status. You got to be stern, but be careful how stern you are.” He reminded them that comments they made to each other could seem, in a recording, to have been made to a civilian, and a joke may not sound funny on tape. The men and women of his unit, who had been joking around with one another as usual, fell silent.
THE TYRANNY OF TECHNOLOGY
For several years, the Bush administration’s Department of Homeland Security used images of American territory from the Pentagon’s spy satellites for domestic security and law enforcement. President Obama ended the practice,15 but it could be resumed in a flash, and the near future promises other ways to peer into citizens’ backyards. Defense Department researchers are miniaturizing aerial drones, reportedly getting them down to the size of a bird. After antiwar protesters got suspicious about oversized dragonflies hovering around street demonstrations, The Washington Post dug up information on Pentagon-funded experiments aimed at implanting electronics in live moths to control their flight and turn them into perfectly camouflaged surveillance machines.16
The Rights of the People Page 33