Society and Culture

Surveillance and civil liberties: Some unanswered questions

Image Credit: Shutterstock

Image Credit: Shutterstock

In November 2001, as it became clear that the response to the September 11 attacks would include a dramatic acceleration of the use of information technology for surveillance, I raised some issues in an op-ed published in the Norfolk-Virginian Pilot. I said then, and still believe, that “increased information collection is a necessary and appropriate part of any rational defense” against terrorism, but also that allowing government to collect massive data bases and retain the information indefinitely could have “monstrous implications for privacy and unlimited potential for abuse.”

Looking back over more than a decade, my main impression is that while surveillance has expanded along the lines I (and others) predicted, the civil liberties issues have been left mostly unaddressed.  I’d love to know what others think about this, and — most importantly — how we should move ahead given everything we’ve learned over the past couple of months.

For those interested, here is the full text of my November 2001 article in the Norfolk-Virginian Pilot.

Will America’s civil liberties suffer as a result of our new war on terrorism? Part of the answer lies in how we deal with issues raised by increased use of new digital surveillance technologies.

Some oppose any increase. A better approach is to place limits on what government does with this information it collects.

The Virginia Beach City Council’s Tuesday vote to approve the use of facial-recognition technology is only one example of the expansion of the use of high-tech surveillance systems after Sept. 11.

Several airports have also begun deploying facial recognition systems, and it is widely expected their use will spread further. That’s why companies that make such systems, like Visage Technology and Visonics, have been among the big stock-market winners since the terrorist attacks. Both stocks have more than quadrupled in value.

Advanced digital surveillance technologies like these will soon give governments the ability to monitor the whereabouts and activities of virtually everyone. In theory, at least, government could know everything done by everyone all the time — at least in public spaces.

What is possible and what is done, of course, are not necessarily the same thing. Until now, the use of digital surveillance technology was growing incrementally — red light cameras at a few intersections, closed-circuit TVs in some high-crime areas, an isolated use of facial-recognition technology at Super Bowl XXXV, where there were specific reasons to expect criminal activity.

But America’s war against terrorism has accelerated dramatically the pace at which such technology is being put in place. If facial-recognition technology deployed at entry points and airports can allow us to catch the next waves of terror squads before they strike, who among us believes that either fiscal or civil liberties concerns will — or should — prevent its use?

Not only will the amount of information collected increase dramatically, so will government’s ability to integrate its various data bases and put that information to use.

While civil liberties groups like the American Civil Liberties Union will argue against even deploying such technology, they won’t be successful in stopping it — nor should they be.

America’s first obligation is to protect her citizens, and increased information collection is a necessary and appropriate part of any rational defense. The unavoidable result is that, to an extent heretofore unimaginable, America will become a “surveillance society.”

The question we must now confront is whether increased surveillance will lead inevitably to the creation of a police state, where surveillance information is used to enforce a level of regimentation no American would willingly choose, or whether civil liberties — and our basic freedoms — can still be preserved.

The answer is that they can, but only if we move quickly to impose some limits on what government does with the information it collects, specifically by limiting how surveillance information is collected, used, and stored, and how long it is retained.

First, government must not be allowed to “draft” the private sector into its surveillance brigade. There is some evidence that rules requiring government to get a search warrant or subpoena before demanding information like e-mails or store camera footage from private companies have been bent in the wake of Sept. 11, but they must not be broken.

Second, limits must be placed on the purposes for which surveillance information can be used. Preventing terrorist attacks by foreign nationals is an obvious acceptalbe use. Catching jaywalkers at intersections or tax cheats at casino cashier windows are not. Somewhere in the middle, a line must be drawn, and it will not be easy to do so.

Third, surveillance information must be tightly and securely held. Databases need to be protected not only from the prying eyes of prurient press but also from foreign intruders bent on using the information against us. And individuals who have access to such information must face heavy penalties for its unauthorized release.

Fourth, surveillance information needs to be subject to strict limits on retention. Information associated with serious criminal investigations must be maintained, but as a general matter information obtained through surveillance should be destroyed within a reasonable period after it is collected.

Law enforcement authorities may plead the need for indefinite retention in order to be able to track criminal activities after the fact, but the cost of such a policy would be the creation of a database with monstrous implications for privacy and unlimited potential for abuse.

Technology is transforming the very nature of surveillance, from targeted collection to pervasive collection, and from specific use to, potentially, general use.

Because of Sept. 11, that transformation will now happen far faster than anyone thought, and we need to act quickly to limit its consequences — or risk putting in motion forces that, over time, will erode our most fundamental freedoms.

2 thoughts on “Surveillance and civil liberties: Some unanswered questions

  1. I disagree with Second. Why is it wrong to use a camera at an intersection to catch an illegal jaywalker, but OK if the infraction is witnessed by a cop. Does he have to be on duty and in uniform? Is it OK for a traffic cop to wait out of sight for a speeder?

    • Arthur — In response, a question: Do you want to live in a world with 100% effective enforcement against jaywalking, i.e., where every time you jaywalk your bank account is debited $50 the next morning? That’s a pretty regimented world — definitely different from the one we live in today. People living in such a world would learn to follow the rules, not break them. Good thing?

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