|
Article Excerpt
I. INTRODUCTION
The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live--did live, from habit that became instinct--in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized. (1)
George Orwell's chilling vision of the future depicted ways in which new technologies could one day be used by a totalitarian state to obliterate all privacy and freedom. Orwell wrote the novel in 1948, (2) when television was still in its infancy, computers filled entire rooms and processed data at a snail's pace, and devices such as thermal imagers and particle detectors existed only in science fiction stories. (3) At the dawn of this technological revolution, Orwell presented us with a clear message: new technologies would allow the state to dramatically increase its power over the individual, enabling totalitarian and fascist states to control every aspect of the lives of their citizens. (4)
It is now evident that Orwell's vision was wrong. Modern technology has turned out to be the totalitarian state's worst enemy. Video cameras are indeed everywhere, but they are embedded into cell phones and wielded by millions of individual citizens--and as a result it is the people who are watching the government, not the other way around. (5) These same cell phones use satellite transmissions to communicate information to every corner of the globe, defying government censors. (6) Meanwhile, the Internet has exponentially increased the flow of personal, commercial, and political information to and from individuals in ways that are largely beyond state control. The powerful computers that were foreseen do in fact exist today--only instead of being massive mainframes that fill rooms and that are so expensive only huge corporations and state actors can afford them, these computers sit on the desk or in the lap of private individuals, allowing each of us to create, store, manipulate, and process amounts and types of data that were inconceivable forty years ago. (7) All the terrifying technological tools that Big Brother used in Orwell's dystopian vision (8) are instead owned and controlled by individual citizens, both in this country and around the world. New technologies have indeed dramatically altered the balance of power between state control and individual autonomy--but the effect has been just the opposite of what Orwell predicted.
A similar misperception has occurred in the context of the Fourth Amendment and privacy--despite evidence that technology has enhanced privacy for many people, there exists a fear that new technologies are eroding Fourth Amendment protections. Lay people read about powerful new surveillance technologies used by law enforcement agents and understandably react with trepidation. (9) Over the last century, the government has begun tapping our phones; (10) flying (at lower and lower altitudes) over our houses and yards; (11) installing video cameras or hidden microphones in our offices, homes, and hotel rooms; (12) intercepting our emails; (13) scanning images of our faces in crowds; (14) monitoring our web browsing; (15) seizing and copying from our hard drives, (16) and even looking through the walls of our houses. (17) Legal scholars have also reacted with alarm, decrying the loss of privacy and individual rights brought on by new surveillance technologies. (18)
But the impact of new surveillance technologies is only one chapter of the story of how technology has affected privacy in modern society. Over the past century, millions of individuals--both innocent and culpable-have begun using everyday technology to increase their privacy. Just as George Orwell misunderstood the implications of new technologies by focusing only on their use by government agents, Fourth Amendment scholars all but ignore the ways in which technology has enabled average citizens and criminals to keep their activities hidden from law enforcement. (19) New technology has also strengthened individual privacy in at least two other ways: by enabling governments to target surveillance more effectively, resulting in more narrowly tailored searches; (20) and by enhancing our ability to monitor the conduct of government agents.
The conventional wisdom among scholars consists of two assertions, one factual and one normative. The factual assertion is that the effect of new technologies has been to alter the balance between individual privacy and the state's power to investigate crimes, thereby decreasing individual privacy and increasing the ability of government agents to learn private information about us. (21) The normative assertion is that this shift is a negative development, and therefore it is necessary to restore the original balance--either by creating more regulations or statutes to limit government power, or perhaps by changing the way the Fourth Amendment is interpreted by the courts in cases involving new technologies. (22) This Article will argue that this factual assertion is incorrect--or, more accurately, that it is incomplete--and therefore too simplistic, because it does not take into account the wide variety of ways in which technology has affected the balance between individual privacy and government investigatory power.
This Article will examine the interplay between technology, law, and privacy, taking a broad view on how technology has affected the critical balance between individual privacy and effective law enforcement. (23) Section II will examine how technology has, for the most part, enhanced the privacy of individuals in their everyday lives, allowing them to communicate more privately, store data more securely, and conduct a much wider range of activities within the privacy of their own homes. Section III then turns to the effect of new technology on government surveillance, and divides surveillance technologies into three categories: those that allow government agents to do what was previously impossible; those that allow government agents to conduct traditional methods of surveillance more efficiently; and, those that the government has developed in order to combat the privacy-enhancing technologies described in Section II. Section IV will review the current statutory and constitutional law regarding surveillance technology, and Section V will then critically examine that law--and the balance or imbalance that it creates between the two competing goals of Fourth Amendment jurisprudence. Finally, Section VI will examine other ways in which technology has impacted everyday privacy.
II. TECHNOLOGY AND PRIVACY
In order to understand the true impact of technology on privacy--and, more specifically, in order to accurately gauge the effect of new surveillance technology on the balance between individual privacy and government investigatory power--the first step is to evaluate how technology has changed the amount of privacy in society for everyday citizens. As in any context in which we are examining the effects of technology on society, the changes tend to be subtle and incremental in the short term, but dramatic and momentous in the long run. In the field of medicine, for example, each new drug or surgical technique might have a small influence on the way a certain disease is treated--but the cumulative effect of all of these advances has increased life expectancy in this country from around forty-seven to seventy-eight over the past one hundred years. (24)
Likewise, the effect of new technologies on our privacy in everyday life is easy to overlook, since we quickly adapt to the small gains that are made and fail to notice how fundamentally our lives are changing. By taking a broader perspective, however, we can see how new technology has dramatically increased the amount of privacy each of us now enjoys in our lives.
To better visualize this broad perspective, let us engage in a time-travel thought experiment. Assume that Sally and Harry, two residents of early nineteenth century America, wish to have a private communication with each other. As it turns out, their options are limited. Sally could invite Harry to her home--though of course anyone could see Harry entering and leaving Sally's home, so the fact that they were conversing would be public knowledge. Sally could write Harry a letter, but again the name of the person with whom she was communicating would be open to the world. More troubling would be the fact that--assuming there was no legal impediment--any government agent wishing to know the content of her communication could intercept and read the mail before it got to its destination.
Now assume that Sally and Harry live in 1950. The technological advance of the telephone (25) has greatly increased their chances of having a private conversation. Casual observers of their affairs will have no idea that the two of them are talking, much less what they are talking about. But although the telephone is an improvement, it is not foolproof. They can only use the telephone at certain locations--their home, their office, perhaps a quasi-public phone booth. Furthermore, the local telephone operator might be listening in on their phone conversation. (26) Almost all residential lines are party lines, which each have to share with up to ten other households--and any member of any of those households could be eavesdropping on their conversation without their knowledge. (27) And once again (assuming no legal restrictions exist), government agents could subpoena phone records to determine whom Sally is calling, or set up a device to tap Sally's phone. (28) It should be noted, however, that these actions by the government require substantially more effort and technical expertise than simply looking at Sally's outgoing and incoming mail. (29)
Finally, assume that Sally and Harry live in the modern world. Now they can communicate with each other from almost any spot in the country using cell phones, with no chance of a human operator casually eavesdropping on their conversation. They can also send e-mails or instant messages to each other from their computers. And if they are very worried about privacy, they can easily take measures to make their conversation even more secure. A cell phone can be bought and used for a day and then discarded, making the calls much more difficult to trace. (30) E-mail can be sent and received to and from anonymous accounts, or the two individuals could purchase an inexpensive encryption program which would shield their e-mail communications from even the most sophisticated government code breakers. (31)
Of course, the government has been able to find ways to intercept electronic communications--but this in itself does not mean that the new technology has led to a decrease in privacy. A modern-day Sally and Harry still have all the old ways of communicating with each other--they can still visit each other's houses, send each other mail, or call each other on land-based phone lines. In other words, technology has given them more ways to communicate; more options to choose from in deciding which method of " communicating is the most secure.
In addition, the economic effects of new technologies must be considered, since in discussing the effect of technology on privacy, we should not look at the amount of privacy a person has in theory, but the amount they have (or used to have) in practice. In 1800, a face-to-face visit was extremely difficult to set up because most people lived in rural areas that were great distances apart, and so travel between residences took considerably longer than it does today. Those who lived in urban areas could more easily travel to see each other--but nineteenth century cities were difficult places to find privacy, as most individuals lived in apartments or tenements which were shared with many other family members. As has been true throughout history, the very rich--enjoying private residences and easy access to transportation--could engage in private conversations without a problem, but for the vast majority of citizens, private communications were difficult to come by.
The telephone was invented in 1876, (32) but in the early twentieth century, it was still a rare device, used only by those wealthy enough to afford them. (33) By the 1950s, the telephone was more commonplace, but almost no home had more than one phone line, and many residences still had none. (34) Today, nearly 70% of Americans have their own personal telephone which they carry with them everywhere (35)--cellular phones are so inexpensive that they are prevalent among every economic class (36)--and those that do not have a cell phone almost certainly have access to a traditional telephone. In short, advancing technology has not only given us devices which dramatically increase our privacy, but has also made these devices affordable to almost everyone.
The same analysis can be applied to most other categories of privacy. Take data storage: a nineteenth century diary writer would have very limited options as to how to secretly record and store his writings. In modern times, the diary could be written on a laptop computer, accessible only to someone with the password--or stored on a hard drive the size of a pen and hidden almost anywhere. More broadly, the rise of the personal computer and the Internet has allowed individuals to stay in the privacy of their own home to conduct many activities which formerly had to be done in public. An individual today can browse and shop online for any item she might want, from clothing to cooking utensils to pornography; (37) she can access and download almost any kind of picture, political treatise, song, or book; (38) she can even "develop" her own digital pictures, insert them into a pamphlet she is writing, and print multiple copies of the pamphlet for distribution later. (39) Only twenty years ago, almost any of these tasks would require the average person to leave her home and personally visit any number of other businesses; it was impossible to browse through and purchase a book without leaving your home, while developing your own pictures and printing your own pamphlet at home was possible only with expensive and unwieldy equipment.
In short, one of the primary effects of technology on society over the past two hundred years has been to increase the amount of privacy in our everyday lives. Individuals--including criminals--can now conduct many more activities secretly, particularly activities which involve communicating, storing, or processing information. This increased secrecy has posed a problem for law enforcement officials, who have responded by developing and using special technology to conduct their surveillance.
III. ADVANCES IN SURVEILLANCE TECHNOLOGY
With this understanding of the overall effect of technological advancements on privacy as a backdrop, we will now turn to the more traditional concept of the relationship between technology and privacy: the threat to privacy posed by modern surveillance technology. This Article will divide modern surveillance technology into three categories: (1) devices that allow government to see things it could never see before; (2) technology that allows governments to conduct more traditional surveillance more efficiently; and (3) "responsive" surveillance technology, which the government has been forced to use in order to keep up with new privacy-enhancing technologies.
A. THE ORWELLIAN NIGHTMARE: TECHNOLOGY AS THE ENEMY OF PRIVACY
The conventional wisdom is undeniably correct in one aspect: surveillance technology has vastly improved over the past century, giving the government valuable tools to investigate potential criminals, but also creating new challenges for the legislatures and the courts as they struggle to determine how (if at all) the new technologies should be regulated. Perhaps the most frightening type of surveillance technology involves devices which allow the government to see, hear, or gather information that would otherwise be impossible for it to detect. Specifically,...
|
