Watching (Part 1)

By Martin Schatz

The scariest part of Orwell's masterpiece, "1984," was always the slight feeling of familiarity that pervaded the story.  We understand the "newspeak" immediately, even before the author lets us in on the definitions.  "Doublethink" is something that we recognize from reading the news everyday, especially during any mention of something as neutral as "collateral damage."  There is always the sense that, while things aren't that bad yet, we can foresee the possibility that things could, given the wrong set of circumstances, get to that point.


Technologically, there are no longer any restrictions to the Big Brother state that the citizens of "1984's" London find themselves in.  New and improved technologies, such as implantable microchips, data mining, DNA chips, and "brain-wave fingerprinting" all currently exist.  What keeps them from being used is a rapidly eroding set of laws and rights.  This safety net is being destroyed by both the privization of data collection and the quickening pace of technological breakthroughs.  Our laws simply do not have the time to keep up with the rapid-fire pace of innovation.


Consider the words of the ACLU's report titled "Bigger Monster, Weaker Chains:"
"The technologies of surveillance are developing at the speed of light, but the body of law that protects us is stuck back in the Stone Age.  In the past, new technologies that threatened our privacy, such as telephone wiretapping, were assimilated over time into our society. The legal system had time to adapt and reinterpret existing laws, the political system had time to consider and enact new laws or regulations, and the culture had time to absorb the implications of the new technology for daily life. Today, however, change is happening so fast that none of this adaptation has time to take place – a problem that is being intensified by the scramble to enact unexamined anti-terrorism measures. The result is a significant danger that surveillance practices will become entrenched in American life that would never be accepted if we had more time to digest them (italics my own)."

Historically, we have been very slow in recognizing how new technologies infringe on our 4th Amendment rights.  It took nearly 40 years for the Supreme Court to reverse its ruling that wire tapping did indeed constitute a "search" that would require a warrant before being undertaken.  This slow pace of evolution is, quite simply, terribly insufficient in terms of protecting us from new technologies.

 

"The road to hell is paved with good intentions."

A situation where we find ourselves in a state of perpetual surveillance does not require any apocalyptic event or radical change in government.  Instead, it can simply proceed through the mostly good intentions of law enforcement and intelligence services and with the support of people who are looking to keep Americans "safe."  The greatest evolutionary leap in surveillance capability and allowance was adopted in the aftermath of the September 11th, 2001 attacks in New York City.  

The Patriot Act was quickly developed after the 9/11 attacks as anti-terrorism legislation, signed into law little more than a month after the attacks, and was given little debate or oversight from Congress.  The ways in which this Act has eroded civil liberties and personal rights are well-documented, but for the sake of reference, I will borrow the below list from the Electronic Frontier Foundation:     

The law dramatically expands the ability of states and the Federal Government to conduct surveillance of American citizens. The Government can monitor an individual's web surfing records, use roving wiretaps to monitor phone calls made by individuals "proximate" to the primary person being tapped, access Internet Service Provider records, and monitor the private records of people involved in legitimate protests.

PATRIOT is not limited to terrorism. The Government can add samples to DNA databases for individuals convicted of "any crime of violence." Government spying on suspected computer trespassers (not just terrorist suspects) requires no court order. Wiretaps are now allowed for any suspected violation of the Computer Fraud and Abuse Act, offering possibilities for Government spying on any computer user.

Foreign and domestic intelligence agencies can more easily spy on Americans. Powers under the existing Foreign Intelligence Surveillance Act (FISA) have been broadened to allow for increased surveillance opportunities. FISA standards are lower than the constitutional standard applied by the courts in regular investigations. PATRIOT partially repeals legislation enacted in the 1970s that prohibited pervasive surveillance of Americans.

PATRIOT eliminates Government accountability. While PATRIOT freely eliminates privacy rights for individual Americans, it creates more secrecy for Government activities, making it extremely difficult to know about actions the Government is taking.

PATRIOT authorizes the use of "sneak and peek" search warrants in connection with any federal crime, including misdemeanors. A "sneak and peek" warrant authorizes law enforcement officers to enter private premises without the occupant's permission or knowledge and without informing the occupant that such a search was conducted.    

This is alarming, but as a normal, law-abiding citizen, should you care?  After all, if you are doing nothing wrong, then why worry? 

In our next segment on the subject, we will go into the ways in which this power is being subverted and expanded, and how we all are affected by this erosion of our civil liberties and the increasing power and secrecy available to Government, Business and Law Enforcement.


PDF Patriot Act
How PATRIOT Threatens Online Civil Liberties
FBI Surveillance - 4th Amendment 
Data Mining - How Companies Know Your Personal Information
Bigger Monster, Weaker Chains
Is the U.S. Turning Into a Surveillance Country
Obama: Giving Up On Change When it Comes to 9/11 Trials