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In a report entitled “Bigger Monster, Weaker Chains, The Growth of an American Surveillance Society,” by Jay Stanley and Barry Steinhardt of the ACLU Technology and Liberty Program, a stark present-day reality is painted in which the privacy and liberty of ordinary American citizens are compromised. Whether you agree with the authors’ perspectives or not, the report certainly provides food for thought. OPENING COMMENTS At the outset of the report, the authors state that “for decades, the notion of a ‘surveillance society,’ where every facet of our private lives is monitored and recorded, has sounded abstract, paranoid or far-fetched to many people.” However, “many people still do not understand the danger, do not grasp just how radical an increase in surveillance by both the government and the private sector is becoming possible, or do not see that the danger stems not just from a single government program, but from a number of parallel developments in the worlds of technology, law, and politics.” The stated intent of the report is to describe these trends in one place, “illuminate the overall danger,” and to give recommendations to eliminate the danger. THE DANGER The report says that ever-quickening advances in technology — including computers, cameras, sensors, wireless communication, GPS and biometrics — are “feeding a surveillance monster that is growing silently in our midst.” Examples given of technological measures that invade personal privacy include face recognition, implantable microchips, data mining, DNA chips and so-called brain wave fingerprinting. As the technological surveillance “monster grows in power,” the report states that “we are weakening the legal chains that keep it from trampling our lives.” Rather than responding by creating stronger measures to protect personal privacy, the report complains that we are doing just the opposite — “loosening regulations on government surveillance, watching passively as private surveillance grows unchecked, and contemplating the introduction of tremendously powerful new surveillance infrastructures that will tie all this information together.” The authors of the report specifically castigate the recently introduced “Total Information Awareness” project of the Pentagon. This project, headed up by John Poindexter, who served as National Security Advisor to former President Ronald Reagan, supposedly seeks to unify access to every possible government and commercial database in the world with the goal of identifying terrorists and their supporters. The authors are dubious about whether this type of project can accomplish this goal and worry that it could cause the monitoring of “everyone for signs of wrongdoing.” The report notes that the greatest erosions of privacy rights have come in response to the Sept. 11 terrorist attacks. Yet, the report argues that hastily enacted measures, such as the USA Patriot Act, are not likely to increase our protection against terrorism. Indeed, the authors of the report go so far as to contend that “September 11 has been used as a pretext to loosen constraints that law enforcement has been chafing under for years.” BRINGING THE ARGUMENT CLOSER TO HOME The report uses the following two hypotheticals to bring home the point of how the innocuous activities of ordinary people can lead to disturbing consequences as a result of the growth of surveillance in our society: � “An African-American man from the central city visits an affluent white suburb to attend a co-worker’s barbeque. Later that night, a crime takes place elsewhere in the neighborhood. The police review surveillance camera images, use face recognition to identify the man, and pay him a visit at home the next day. His trip to the suburbs where he ‘didn’t belong’ has earned him an interrogation from suspicious police.” � “A tourist walking through an unfamiliar city happens upon a sex shop. She stops to gaze at several curious items in the store’s window before moving along. Unbeknownst to her, the store has set up the newly available ‘Customer Identification System,’ which detects a signal being emitted by a computer chip in her driver’s license and records her identity and the date, time, and duration of her brief look inside the window. A week later, she gets a solicitation in the mail mentioning her ‘visit’ and embarrassing her in front of her family.” RECOMMENDATIONS While the report is fairly comprehensive in documenting the perceived problem of a surveillance society, it comes up a bit short in terms of detailed recommendations to cure the problem. The report suggests — in broad strokes — that the United States should enact a comprehensive set of privacy laws, the legal system should move more quickly to keep up with advances in technology, and greater respect should be paid to the Fourth Amendment of the Constitution, which protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Yet, the devil is in the details, and enacting comprehensive privacy laws and changing the pace of the legal system, for example, are extremely formidable challenges. CHANGING THE TERMS OF THE DEBATE Still, one stated goal of the report is to change the terms of the debate. Perhaps the information provided in the report will shed some light on the issues for people who otherwise have not given much thought to the implications of surveillance in our society. Most of us are busy in our daily lives, so unless and until our privacy is compromised, our privacy may not be considered significant. General advances in technology have many benefits, and almost everyone would say that rooting out terrorism is laudable. However, whether surveillance measures being put in place will actually get that job done and whether those measures unfairly will compromise liberty and privacy are issues that deserve consideration. If the report helps to create greater consideration of those issues, it will have accomplished something. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. Mr. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected]. To receive a weekly e-mail link to Mr. Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected].

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