The Surveillance State Outside Your Door
Since early June a great deal of news and social media attention has focused on the theft and disclosure of National Security Agency documents by former Booz, Allen and Hamilton analyst Edward Snowden. Whether he is a heroic whistle-blower or a traitor I will leave for others to argue. Regardless of your perspective, the energy has been largely misplaced. This is so not because the revelations have not been a significant uncovering of massive data sweeps and weak oversight – along with the inexcusable disclosure of non-domestic operations – but because the reaction by many Americans has seemed so ignorant of the actual state surveillance which takes place in every day life.
You can get a broad perspective on the NSA programs (and for how long they are believed to be storing the data you generate and whether it is being minimized so only foreign communications are targeted) by reading Marc Ambinder, Kurt Eichenwald, Marcy at Emptywheel and Joshua Foust. Far less informative are websites - who either ignorantly or to build page views – toss out “the NSA is spying on you” generality (see this Google search return to see what I mean). Ultimately, that message has been incredibly effective as it reflects a certain narcissism of the public at large. “They” can see when you ordered pizza. “They” can discover your YouPorn searches. “They” can see that you called a pharmacy right after you got a call from your doctor. The probable reality is that, while they have the obvious capability, neither the NSA, the FBI, or the CIA care about any random one of you doing any of those things.
While these are absolutely legitimate concerns, there is no apparent concern over the everyday incursions of our privacy that actually occur. Through the development of cheap networks and cheaper data, these intrusions are taking place with greater frequency – and even they don’t include the cruder everyday forms of surveillance that take place in poorer communities.
Your license plate is metadata.
One of the best sources for level-headed watchdog reporting is the Center for Investigative Reporting, formerly California Watch. Late last month they issued a report (License Plate Readers Let Police Collect Millions of Records on Drivers) which should have set off a firestorm:
At a rapid pace, and mostly hidden from the public, police agencies throughout California have been collecting millions of records on drivers and feeding them to intelligence fusion centers operated by local, state and federal law enforcement.
The report highlighted one computer security consultant who had previously asked the City of San Leandro to provide him with a record of every time just the city’s lone license plate camera equipped patrol unit recorded his cars. He was shocked to learn that his family’s two cars were photographed 112 times in only one week in 2009. One photo even depicted his kids getting out of their Prius in their driveway.
Unbeknownst to Californians, and probably Americans elsewhere, a vast database is being built which will knit together the license plate camera data across fourteen counties. This data is updated on a regular basis by patrol cars to their own agency’s data center and then forwarded to the statewide network. How is this possible? Governments are applying the same theory as used for the phone number you dial, the metadata attached to your email or the address on a piece of mail: a license plate is in public view for all to see so you have no expectation of privacy (see New York v. Class, 475 U.S. 106 (1986) to a license plate you do not even own. This is no different, proponents of plate cameras argue, than an officer sitting in a patrol car and keying in license plates for his whole shift. Cops call it “license plate bingo.” But no matter how fast,though, that officer cannot read and input 1200 plates an hour like automated systems can.
The public safety benefit is obvious. Plate readers find stolen cars and felony warrants with ease. Unlike human officers, the cameras generally do not input wrong numbers which lead to wrong hits and sometimes awful outcomes during high risk traffic stops. Is the public willing, though, to surrender some more anonymity where with plate scanning technology “you can tell who your friends are, who you hang out with, where you go to church, whether you’ve been to a political meeting.” To have a plate reader come back with a hit on a stolen car is one thing, to amass a database which will pinpoint all of your driving locations with ease is a whole different breed of intrusiveness. The reason concern over license plate databases should take on greater urgency than electronic communications metadata is because they are more accessible to local law enforcement which is far more likelier to target you, for legitimate reasons or otherwise, than the NSA would.
Pay and watched as you go.
Like many other states, California also has technology that allows drivers to speed through bridge tolls and carpool lanes called FasTrak. The system includes a Radio Frequency Identification (RFID) chip which is embedded in a small box mounted inside your windshield. When a driver passes underneath a reader, even at full freeway speeds, a scanner reads the RFID frequency and the driver is billed for the privilege of being there – and, of course, the time, place and speed are recorded. A few months ago, I was rushing to LAX the very week FasTrak was brought to that particular carpool lane unbeknownst to me. Two weeks later I got a citation in the mail with a photo of my car with its plate number clearly displayed. Fair enough, but what happens with all that data of who goes where? In 2010, California’s governor signed legislation which prohibits agencies from selling such data and requiring them to purge the data when no longer needed. But believe me, that data is still there for use for governmental purposes. The public never had an opportunity to consider the government’s use of your location information because it never knew it was happening. Technology, and its application of law enforcement purposes, is advancing far faster than the public can keep up.
Be careful what you say.
If you use public buses in Montgomery County in Maryland you are probably used to having a camera peer at you like in many other bus systems throughout the country. What was less well known util recently is that the buses also have hidden microphones. The ability to record what riders thought were perhaps semi-private conversations on public transportation is becoming more common. Again, the legal theory is that in such a space you have no expectation of privacy. Whether this is another sign of Big Brother is not for me to decide, but, again, the public in whose name the surveillance is occurring was never asked to be part of the conversation of the balance between safety and privacy. The broader question is whether it is okay that what we once thought was ephemeral – say a quick conversation on a subway a passing glance at an attractive man or woman – is now permanent because it is being recorded and stored without our knowledge or permission?
You can be searched anyplace at anytime.
The state of surveillance takes on a more present and human form in the way of aggressive policing to combat crime. In law enforcement lingo one hears terms such as “crime suppression” and “saturation.” They have real meanings and real impacts in poor neighborhoods. The nearly completed stop and frisk trial in New York City and recent city legislation both speak to the pernicious ubiquity of NYPD officers stopping mostly young minority males for the vaguest of reasons like a “furtive movement” or fitting a “relevant description.” I suggest you follow the @stopandfrisk twitter feed as it is dedicated to publicizing the reasons NYPD gave for each of its thousands of stops to get a real feel of what is like to live under the eyes of constant human surveillance.
The localized surveillance state works in other ways that are not readily apparent. In wealthier communities, police departments serve as a highly visible deterrent. In many urban areas, though, police lurk in unmarked cars either in uniform or in plain clothes. Their role is not to deter crime but to catch potential suspects unaware. Those plainclothes units are often seen as elite and the positions are coveted. There is a certain superiority which comes with not having to wear a uniform or being able to skulk about in an unmarked Dodge Charger with tinted glass. The effect, though, can be shocking on the citizens. Not only is a uniformed officer in a black and white not present to provide service to the public, but those non-uniformed officers often act very aggressively and lead citizens to mistake them for violent criminals as they leap out of dark cars with guns drawn. Invariably, the accosted civilian, like the college student in Virginia buying a case of water, will say the officers failed to identify themselves while they will claim the opposite. In the worst case scenario a mother of five driving down a street gets shot and killed by plain-clothed Border Patrol. In either case had officers been in uniform, civilians are less likely to panic and try to escape what they think is a robbery. An easy solution, which many agencies employ, would be to always require a marked chase unit to make the initial stop rather than using unmarked cars. Unfortunately, that just would not be as cool.
The public must demand a seat at the table.
Proponents of Edward Snowden say they are trying to re-align the relationship between the security apparatus and the public. That may well be an admirable mission, but it misses the real challenge of the everyday chipping away at privacy at the most basic level of our engagement as civilians in the public sphere. Oversight of police agencies is rarely regional. Policy proposals and new initiatives occur far off the radar screen in law enforcement briefings and conferences. States must have an apparatus in place, a privacy advocate or ombudsperson perhaps, who vets new programs as they are proposed for their impact on privacy. At the local level where the boots meet the ground, public engagement is critical. Elected officials must ask tough questions and the media has to shine a light on more than misconduct, but also police activities which are technically legal but which have real impacts on everyday life.