Hobbes put it well: “Knowledge is Power.”
The more one knows of what an enemy, competitor, customer or citizen is doing and thinking, the more power one has to thwart that entity or person and emerge victorious in any struggle for supremacy. Eavesdropping is merely one more attempt to increase power by increasing knowledge, usually without the knowledge of the party being subjected to the process.
The term derives from the era when physical spying was the principal means of attaining that knowledge…one literally dropped down from the eaves of a building to overhear conversations taking place in the rooms of a building.
Today, eavesdropping is seen as a particular more limited type of spying, namely using electronic means to attain access to information without the knowledge of the person. But we should carefully consider whether we should artificially limit our inquiry into the ramifications of eavesdropping to mere technological means. Perhaps the famous American fascination with machines should be ignored for our discussion and we should, instead, inquire into the entire world of seeking information by clandestine means and the effect on our lives due to such efforts.
The technological and bureaucratic revolution of the 18th Century created two new themes in eavesdropping still prevalent today: the creation of governmental (and, later, business) organizations to structure effective spying on individuals and nations and the use of technological innovations to achieve more effective means to obtain information. While at times the two themes have split apart, as when the United States dismantled much of its human spy network in the 1990s to rely on satellites eavesdropping from space, the fact is that it is now recognized that the most effective means to achieve information is a combination of human and technological means. Satellites and electronic methods must be supplemented by human resources to maximize results. Or as one businessman told me returning from a trip to China, “They bugged my phones and they sent attractive companions to join me in bars at night. Full court press. Wonder what they thought I knew.”
Perhaps one of the most important steps in beginning an inquiry is to recognize one’s own biases. Americans (and the British) of the early twenty first century are uniquely attuned to an odd combination of paranoia yet fascination with the entire world of eavesdropping. We like stories involving spies and we love our spies to use gadgets. It is no coincidence that James Bond would begin each adventure with new set of gadgets that the audience would visually fondle as he began his exploits. As with Hal in 2001, we are fixated, repelled, attracted and fearful of the machines we develop and nowhere is this more apparent than in the increasingly powerful eavesdropping devices that are available.
That same fascination remains a prevalent part of all of our popular media about spying, be it popular television shows such as 24 Hours which has counter terrorist spies operating in a science fiction set of high tech equipment to the movies such as Mission Impossible which indulges in even more fixation on electronic gadgetry. We love it. We fear it.
And electronic surveillance is, in reality, ensconced in our daily lives right now and is far more prevalent than we like to think. We are now under surveillance almost all the time.
The average person reading this article was photographed in two dozen intersections by robotic cameras which sent that information to a central location for processing. (In 2004 nine thousand three hundred of the seventeen thousand four hundred red light citations were predicated on cameras installed on San Francisco intersections, with fines average three hundred and forty one dollars per citation. In 2005 the courts upheld these robotic citations as constitutionally valid and the number of intersections subject to this photography has tripled since it was an excellent source of revenue.)
Chicago installed sound activated cameras in most high crime neighborhoods with links directly to the police stations in 2004 and Tijuana followed suit in 2006. San Francisco is currently considering installing that system. It is cheap, it is effective and it is sexy. Police advise the writer that the government in most first world cities will thus have the average public space under constant camera surveillance within a decade.
Almost every retail outlet and most highways have cameras photographing all persons in range in stores is increasing annually and now covers the entire area of the store and the sidewalk in front of the store. Shoplifting prevention and security are given as the reasons. Today you were probably recorded in your activities for half the time you were not in your home or office without your active consent. (The courts have adopted the concept of implied consent, e.g. if you are in public you consent to such surveillance.)
Your image is currently available for review by unknown persons for most of the time you were out of your home or office today. And last week. And tomorrow. None of that was true twenty years ago.
That is only the beginning.
Every bank transaction and credit card purchase, whether on the internet or not, is available on line to various business…and governmental agencies. To an extent not fully revealed, your internet visits are also monitored by curious retailers and, perhaps, governments and if you engage in such surfing at work, your employer has an absolute right to monitor each and every website you visit. Most large companies do since they are concerned about their own security and prevention of e mails that might create a hostile work atmosphere.
Cell phones are easily monitored, more easily than hard lines. The telephone companies freely advise their customers to expect no privacy on any cell phone call. Police can (and in some neighborhoods do) routinely monitor such calls, often without a search warrant, using an inexpensive device that is quite portable and is available for public consumption at this time. One officer told me that he does not use it to develop evidence to arrest people but to have some idea of what to expect when he does arrest them. It’s a matter of life and death, he told me, and he owes it to his family not to walk into a trap.
Everything you buy, most places you go, all financial transactions. All monitored now.
You actually know this if you pause to consider it. You know it and you have accepted it.
The rationale is the convenience of keeping records, the need to keep our streets and highways safe, the need for business to understand the needs of the market and these reasons are probably quite accurate as to the motivations of the inventors and entities who implemented them. Polls taken of people on the street uniformly praise the safety they feel when the cameras are installed. And anyone who has stood in line in a third world country waiting for a bureaucrat to process a form can understand the brilliance and convenience of our computerized systems. We save thousands of hours a year by use of these means.
But we are Americans and mixed with this delight at these technological conveniences is a horror of the invasion of privacy that such devices must entail. The most frightening scene people remember form 1984 was the citizen being visually scanned in his own home by Big Brother. Almost every state and the Federal government have passed laws seeking to restrict access to and use of information developed by the various electronic eavesdropping devices with often severe penalties for violators. Business, medical personnel, governments and individuals all face a battery of laws which seek to maintain the right of the individual to preserve his or her privacy in a world in which technology makes such privacy technologically impossible.
We seek by laws to negate the overwhelming power of the technology we continue to develop. As discussed below, it is unclear the law can do so absent steps that would restrict access to the conveniences we desire.
We want them to be produced-we want to limit their use.
While that is the superficial background technological and general mental attitude in the United States urban area of 2006, it fails to consider the truly massive effect of the War on Terror (“WOT”) and the massive increase in governmental eavesdropping that the WOT has seemed to justify.
This is not the proper forum to discuss the remarkable degree of fear and paranoia that struck the nation after 2001. Perhaps the example that will be remembered as illustrating it is the similarity to what our nation did in 1941. Just as Pearl Harbor resulted in the creation of concentration camps (termed “Relocation Camps”) for the American-Japanese who were assumed to be disloyal by race, so the United States created a system of gulags in Cuba, the Middle East and Eastern Europe, run by paid allies or our military, and quite possibly elsewhere, to hold without trial people labeled by the government as dangers without access to counsel or, for that matter, even notice to their own family. The torture of such persons is probable, the failure to be proven guilty by a properly constituted legal entity universal.
The transcripts of the “trials” called Military Tribunals are an embarrassment to this nation, with persons found guilty based on evidence not even told to them and without the right to cross examine the witnesses or have counsel assist.
In such an atmosphere, the niceties of Fourth Amendment freedom from warrantless searches and seizures could not be expected to survive and it did not. Despite the earlier creation of a special legal tribunal which had routinely authorized wiretaps and eavesdropping in a matter of hours, the government elected to claim that even this minute restriction was unwarranted and that they had an inherent right to eavesdrop without warrant and without judicial review predicted on an executive right to spy on citizens at the will of the President.
This is not new. The Writ of Habeas Corpus was abrogated by Lincoln who arrested Senators off the floor of the Senate claiming that the right of Free Speech did not apply to their statements. The Germans in World War I and the Japanese in World War II found themselves arrested without trial or cause. I submit that the WOT extremes are historically common in our past and likely not to outlast the war…the danger being that one is not quite sure what that means.
That “right” of the government will not survive judicial scrutiny, I suggest, and, along with our gulags, will be considered both an oddity and shame of this era. But that easy target is not to be the subject of this paper. Fear and paranoia almost always results in overreaction and wars, be they on terror or on nations, create such events routinely.
However, this paper shall instead seek to explore right to privacy supposedly enshrined in our Constitution. What is it and how does it work?