Here's looking at you, kid!

Welcome to the surveillance society

So the government's been spying on us. Is anyone surprised? The president has "authorized" federal agents to spy on American citizens without benefit of warrants or sanction of congressional statute. Is anyone surprised?

Apparently some people are. My senior U.S. senator says it's "astounding." Come on, Dianne. You've had a front-row seat in Washington, D.C., for five years of the most corrupt administration since Richard Nixon's. While Nixon was the chief executive who actually said, "When the president does it, that means it's not illegal," it's George W. Bush who really took it to heart. American citizens have languished in prison for years without even being charged—let alone tried—for crimes real or imagined. Prisoners of "war" (there's been no congressional declaration of war, by the way) have been incarcerated and tortured with complete disregard for the Geneva conventions to which the U.S. is a signatory. Just as federal law apparently doesn't restrict what the administration can do at home, international treaties don't restrict what the administration can do abroad. We have become a form of despotism, under the rule of a man (and his minions or controllers) rather than under the rule of law.

These big issues have come front and center during the controversy over reauthorization of the Patriot Act, which is fortunately stalled for the time being in the U.S. Senate. (Thank you, Russ Feingold!) On the national stage we will see it played out, and patriotic Americans should be contacting their Senators and Representatives to demand a rollback of the act's more pernicious intrusions into personal privacy, especially any provision that allows federal agents to forgo the acquisition of a search warrant. (For those of you who haven't paid any attention to the U.S. Constitution since the Bush administration declared it inoperative, don't forget that the Fourth Amendment specifically says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." That's the entire amendment. Do you see any clause saying "unless the president disagrees"?)

The Patriot Act is currently under attack by an unlikely coalition of liberal Democrats and conservative Republicans who fear the aggregation of unrestricted power by federal authorities to interfere in the private lives of Americans. Given Bush's damaged public standing in the wake of the Iraqi misadventure, indictments of political allies and White House aides, and revelations of paid propaganda efforts both domestic and foreign, it may be the ideal moment to clip his wings. That would set the stage for a three-year lame-duck period until he can be evicted from the White House to make way for a more responsible chief executive (which at this stage would be almost anyone else). We might even hope that the 2006 mid-term elections will cost Bush the complaisant congressional majorities that normally wink at his depredations. That might check—or even force into retreat—the president's reign of error.

In the meantime, we must be eternally vigilant against further abuses of our civil rights. A rollback of the so-called Patriot Act is overdue.

All politics is local

Many people seem to take comfort in the mindless adage "If you have nothing to hide, you have nothing to fear." By definition, most of us constitute the "faceless masses" of the population and may feel secure in our anonymity. This position is not tenable.

While it is difficult to forecast when the tipping point will occur, we see every day that daily life is increasingly under routine scrutiny. Orwell's 1984 was clearly fiction because there was no way imaginable in which Big Brother really could be watching every individual's private life, but Orwell was writing his dystopian fantasy in the era before the rise of electronic surveillance. All large metropolitan areas and most mid-sized cities are festooned with webcams. You are captured on video every time you go downtown. Or pass through an airport. Or visit an automatic teller machine (which, of course, is also recording your transaction electronically, as indeed it must).

Our privacy is protected only to the extent that it is not yet possible to integrate all of our electronic spoor into individual profiles. We don't need much imagination, however, to visualize how well our financial institutions know us and to grasp how completely our lives could be characterized if our credit card transactions were matched with our appearances on surveillance cams, our library acquisitions, our magazine subscriptions, our website visits, and our political contributions. As an ACLU member who contributed to Clinton, Dean, Kerry, Boxer, and Hackett, I probably already qualify for residence at Guantánamo. Once computer programs learn to parse video and recognize faces, we could all have dossiers as detailed as those J. Edgar Hoover used to collect on the disfavored few. Imagine how helpful those could be to people who want to sell you stuff, discredit you, or harass you.

I don't think we can reasonably expect to reverse the trend toward greater availability of personal information on-line. How artfully could laws be drafted to retard the growth of on-line databases and what enforcement mechanisms would be required to make them effective (and would the medicine be worse than the illness)? Cameras will proliferate. Databases will grow. Network connections will increase. It's too late to put the toothpaste back in the tube. Perhaps prevention would have been nice, but that needed to happen yesterday. And it didn't.

I think we have to take a different tack. We need to be ready to punish the abusers of personal information. It won't be an easy task. Our progress toward the protection of personal privacy has been minimal, hampered by an administration that does not even recognize the notion of personal privacy (after all, the word "privacy" is not in the constitution) and the reluctance of elected officials to interfere with the lucrative information market. Yet it can be done. One small victory is the national "do not call" list, which requires telemarketers to refrain from intruding on the household serenity of those who put their names on the list. That seems like a small thing, perhaps, but it's an example of the kind of legislation that can be enacted when people become aggravated by constant disturbances.

The next steps will require legislators to enact condign penalties for those who use our personal information in ways contrary to our best interests or wishes. Think about the difficulties. There are civil liberty implications. Can we avoid infringing on free-speech rights? (Some claim the do-not-call lists infringe on the free-speech rights of marketing operations, but that argument has not proved to be very robust.) What would constitute improper use of personal information? Definitions must be crafted and balanced against competing interests. Penalties for infringement must be proportionate. We are at the very beginning of the discussion, but we would be well advised to get started now, while the window of opportunity is still open.

A couple of resources

The Electronic Frontier Foundation is one of the leading voices in the debate over personal freedom in cyberspace. Its website regularly reports on corporate and governmental abuses and intrusions. The foundation's new blogger rights program is dedicated to ensuring free speech rights for the independent voices that speak up in the on-line world. Keep an eye on the EFF site to stay informed on what's happening out on the electronic frontier.

For people who find the EFF to be insufficiently pure and too willing to compromise, the on-line journal The Register may be more to your taste. Based in the United Kingdom, The Register's banner carries the motto, "Biting the hand that feeds IT." Go visit its website for biting rants and amusing items like "Do webcams break when Tony Blair walks by?" (It appears that they do.)

And wherever you are, don't forget to keep abreast of the positions your local politicians take on privacy issues. If your city council votes for more surveillance cameras, where will they be placed, who will have access to the video, how will the information be used, and what penalties will be imposed on those who violate the rules governing and restricting said information? The genie is out of the bottle, so it's already getting late to be thinking about the rules we want to follow when we wish for a safe and secure society. The price may be higher than you think.