Alyssa Howard
Scholarly Article Notes
Introduction:
Technology has revolutionized and it has been collecting data for unknown purposes. Constant
state surveillance is harmful because it “chills” the exercise of our own civil liberties and creates
a power dynamic between the watcher and the watched. Society is not aware of what privacy
means and when/why government surveillance is harmful, but luckily our law and culture warn
us about the impact state scrutiny has on our lives.
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The 4th Amendment, George Orwell’s 1984, the Electronic Privacy Act, films like
Minority Report and The Lives of Others all warn us about the negative impact state
surveillance has on our lives.
There are minimal legal protections against state surveillance...Clapper v. Amnesty is a
recent major case that was recently dismissed for the claims being “too speculative”.
The Age of Surveillance:
Surveillance is focused on learning information about individuals systematically, used as a subtle
form of influence and control, and is done intentionally. Governments have strengthened their
commitment to public surveillance. Over the last 3 decades Digital Technology surveillance have
multiplied.
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New technologies such as surveillance cameras, web bugs, thermal scanners, and GPS
transponders have increased the ability to track, observe, and monitor.
The government as justified constant surveillance as protecting cybersecurity, intellectual
property, children from predators, and the list continues (and is growing).
A. The Scope of Surveillance
The investment in surveillance infrastructure is growing not only in communists/dictator
regimes but also in democratic states. Private companies profit from collecting, using, and
selling personal data. The use of incentives (liquid surveillance) is causing the distribution of
data to rise.
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To my surprise, it has been revealed that Disney has sold data to the US military after
creating and using facial recognition technologies for their theme parks.
Shockingly, Target openly admitted to using Big Data to identify which of their
consumers were pregnant. They said, “We knew that if we could identify them before
their second trimester, there’s a good chance we could capture them for years...As soon
as we get them buying diapers from us, they’re going to start buying everything else too.”
(creepy).
B. Surveillance Law’s Limited Protections
In the US, there are limited protections against government surveillance. It is “legal unless
forbidden”. Additionally, society knows surveillance is bad but does not know why which
puts them at a disadvantage.
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The FBI has the right to access and obtain personal data through the Right to Financial
Privacy Act of 1978, The ECPA, The Fair Credit Reporting Act (FCRA), and The
National Security Act of 1947.
There are 2 sides to the perception of surveillance: one invades civil liberties and is seen
as creepy or “Orwellian” (referring to George Orwell’s heavily surveilled totalitarian
society in 1984), and the other is convenient and beneficial by keeping us and our
children safe.
Surveillance and Intellectual Privacy:
Surveillance is a threat to intellectual privacy—which is the right to freedom of thought, belief,
and private communication. It threatens democratic self-governance, self-censorship, and risks
total domination because its main purpose is to control behavior. Constant surveillance restrains
us from intellectual activities and affects how we naturally think and act, but the legal justice
system fails to realize that.
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George Orwell’s novel 1984 is used as an example of how constant state surveillance and
knowingly being monitored for what is deemed deviant behavior can affect how people
naturally think and act. In Orwell’s depiction of a totalitarian state, the freedom of
speech, thought, and ideas was prohibited and seen as “thought-crime”, therefore
punishable.
When faced with issues such as the prevention of terrorist attacks, the “need” for
surveillance tends to win over our privacy rights. This is shown in popular cases such as
ACLU v. NSA, Al-Haramain, and Clapper.
Surveillance and Power:
Even when we are not made aware or do not fear the consequences of being watched it still poses
as a threat to intellectual privacy. Surveillance is always about controlling, influencing, or being
able to respond to someone’s behavior. This inevitably creates a power dynamic between the
watcher and the watched, which results in dangerous acts such as blackmail, discrimination, and
persuasion.
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No secret widespread surveillance remains hidden, it will almost always come to light.
Surveillance can also create more problems than the ones associated with the intellectual
privacy theory.
Gathering information, even when used for reasonable things such as traffic safety, baby
monitors, and gps trackers, creates a power dynamic and control over one’s behavior.
A. Blackmail
Any information collected can be used as to intentionally ruin someone’s image by revealing
embarrassing secrets. Whether discoveries are important, incidental, or irrelevant they give
greater power to the watcher. The risk of improper use of surveillance records have persisted
over time.
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(I never knew this happened) The FBI attempted to blackmail Martin Luther King Jr.
because they suspected that he was a threat to public order by listening to his private
phone conversations to find information against him. Microphones were hidden in his
hotel and motel rooms, and the phones in his close adviser’s homes were wiretapped.
The FISA’s surveillance of a terrorist suspect revealed evidence of the suspect’s murder
of his own daughter for dating the wrong boy.
B. Persuasion
Surveillance gives the watcher increased power to persuade and influence the watched.
Governments and companies use this power to control behavior.
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Behavioral marketing often follows targeted customers around the web delivering the
same advertisement so frequently that they eventually cave in and purchase the product in
a moment of weakness. (WHAT? This has happened to me before but I thought it was
coincidental!)
Justifications for massive closed-circuit television networks (CCTV) allow police a
greater ability to watch and influence what happens on city streets.
C. Sorting/Discrimination
Surveillance is used to sort people into categories. This is most often done by for marketing
purposes by big companies. The power of sorting can cause discrimination between citizens
based on their wealth, geography, gender, race, or ethnicity.
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The census records by American, Canadian, and German government during World War
2 were used to identify citizens in order to relocate them to the Japanese internment
camps in North America and the concentration camps in Europe
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A coupon for a frequent shopper may seem harmless but in reality, the power to offer
shorter airport security lines to rich frequent fliers or to discriminate customers based on
their wealth, gender is the case.
Conclusion:
The justification for surveillance is on the rise and so are the problems that surveillance is
creating. We must recognize surveillance’s harms and construct laws accordingly. As a
result, we as a society will obtain it’s benefits without sacrificing our vital civil liberties or
allowing power balance between the individual and government and companies to take place.
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The technological, economic, and geopolitical changes over the past twenty years have
ignored the legal and social rules that constrain surveillance (like, for example The
Patriotic Act and the expansion of National Security Letter Jurisdiction)
Although surveillance can be helpful and necessary, it threatens the freedom to think for
ourselves.