William H. M. Nelson, III and Anne Nelson
The United States is at risk of turning into a full-fledged surveillance society. There are two simultaneous developments that are behind this trend. The first trend is the tremendous explosion in surveillance-enabling technologies. George Orwell’s vision in the mid-twentieth century of “Big Brother” has now become technologically possible.The second trend revolves around the legal system. Even as technological surveillance grows, the U.S. increasingly exhibits the weakening of the legal restraints that keep it from trampling its citizens’ privacy. The literature points out that there is hope, however, that this drift toward a surveillance society can be stopped. Unfortunately, the current legislative, judicial, administrative, and societal tendency is for continuation and even growing momentum of the surveillance movement.
According to the American Civil Liberties Union (ACLU) in a new report released in August 2003, the U.S. has now reached the point where a total surveillance society has become a realistic possibility. Founded in 1920, the ACLU is a nonprofit, nonpartisan, membership organization in the U.S. devoted to protecting the basic civil liberties of all Americans, and extending them to groups that have traditionally been denied their basic civil rights.
The ACLU is not alone in its concern for providing a suitable legal and regulatory framework to take into account technological advancements, protect individual rights, implement regulations in a global context, and enable a global information society. Nor is the ACLU alone in its detection of a drift in the U.S. toward a surveillance society. Steinhardt (2003) remarked on the drift and warned that the insidious trend has growing momentum because the American society still does not grasp that “Big Brother surveillance is no longer the stuff of books and movies.” The literature also points to the issue that given the capabilities of today’s technology, the only factors protecting American citizens from a full-fledged surveillance society are the legal and political institutions that have been inherited as part of the American culture. Experts also suggest that the September 11 attacks have led some U.S. citizens to embrace the fallacy that weakening the U.S. Constitution will strengthen America.
The ACLU (2003)suggests that the movement toward a U.S. surveillance society is the “bigger picture” within the information society context; it is broader and more rampant that merely new surveillance programs and technologies. The body of knowledge argues that even as surveillance capacity grows like a “monster in our midst”, the legal “chains needed to restrain that monster are being weakened”, citing not only new technology, but also erosions in protections against government spying, the increasing amount of tracking being carried out by the private sector, and the growing intersection between the two. Ehrlich (2003) noted “from government watch lists to secret wiretaps, Americans are unknowingly becoming targets of government surveillance”. Ehrlich added, “It is dangerous for a democracy that government power goes unchecked and for this reason it is imperative that our government be made accountable.”
A recent illustration of the danger, according to the ACLU (2003), is the Pentagon’s Total Information Awareness (TIA) program, which seeks to sift through a vast array of databases full of personal information in the hunt for terrorism. The TIA also aims to root out potential terrorists by aggregating credit-card, travel, medical, school, and other records of everyone in the U.S. “Even if TIA never materializes in its current form,” the ACLU noted, “what this report shows is that the underlying trends are much bigger than any one program or any one controversial figure like John Poindexter.”Poindexter is the head of the U.S. government’s TIA project. A retired Navy Admiral, Poindexter lost his job as National Security Adviser under Ronald Reagan (U.S. President from 1980-1988) and was convicted of conspiracy, lying to Congress, defrauding the government, and destroying evidence in the Iran Contra scandal. He was also the Vice President of Syntek Technologies, a government contractor and worked for many years with Defense Advanced Research Projects Agency (DARPA) to develop Genoa, a surveillance device that is a combination cutting-edge search engine, sophisticated information harvesting program, and a peer-to-peer file sharing system. Experts often described Genoa as a “kind of a military-grade Google/Napster for use in instant analysis of electronic data.”
Steinhardt (2003) has said that Americans have not yet felt the full potential of the new technology for invading privacy because of latent inefficiencies in how the U.S. government and businesses globally handle information. “Database inefficiencies can’t be expected to protect our privacy forever,” noted Steinhardt. “Eventually businesses and government agencies will settle on standards for tying together information, and gain the ability to monitor many of our activities – either directly through surveillance cameras, or indirectly by analyzing the information trails we leave behind us as we go through life.”
Current litigation is being used to mitigate this risk of the U.S. becoming a full-fledged surveillance society. Examples include the ACLU’s challenge to U.S. Patriot Act, the ACLU FOIA Lawsuit (an effort to monitor the Patriot Act), the case of Ashcroft v. ACLU (challenge to Internet censorship law), the Supreme Court Ruling on the challenge to Library Web Blocking Law, the case of Edelman v. N2H2 Inc. (a suit to protect censorware research from DMCA), and the case of Melvin v.Doe (challenging frivolous breaches of online anonymity).
With the advent of cheap and powerful new technologies, and the ever-increasing collection of data about citizens’ activities and lives, mass surveillance has become easier than ever. Unfortunately, the threat of terrorism has prompted many Americans to embrace sharp increases in government surveillance over their private lives. The literature suggests that too many people assume that U.S. terrorism can be eradicated by monitoring all the hundreds of millions of people who live in America, and by removing the legal safeguards that protect its citizens against government spying. This paper will show that fundamentally, the rush to surveillance is doubly tragic: not only does it threaten the loss of privacy of American citizens, but it is likely to leech resources from other, more effective measures that actually would make Americans safer. This study also has implications for the global information society and should be studied in the global context as well. These are not privacy challenges faced by the U.S. alone; these are universal challenges facing all governments and their agencies wishing to provide services to the general public or to support access and diffusion of innovative technology to all citizens.