U.S.-China Surveillance

The Fourth Amendment:

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.

It’s been a week since the Senate voted 68-29 to push forward a revised FISA bill that would retroactively immunize telecommunication companies and Internet service providers from prosecution for illegal wiretapping. A number of close friends and associates engaged in voicing their shock and dismay at this blatant disregard for law. While I appreciate, in a sense, this general form of upset with the rising surveillance state, I find it equally dismaying that people have chosen to lock on to this one issue “telecom immunity,” as somehow being the defining struggle. It’s a tiny, tiny component of a much larger problem. A problem that threatens democracy and individual autonomy.

In January, Privacy International released its second annual international privacy index, the result of a survey of 47 countries. Not only was the U.S. among four new countries to join the the UK, Russia, Malaysia and China as endemic surveillance societies, but U.S. privacy protections are actually ranked below China in statutory privacy protection and “surveillance of medical financial, and movement.” Last week, the Washington Post reported that customs agents at U.S. borders reserve the right to temporarily sequester laptops, cell phones and other electronic devices and download data stored on those devices, and engage in this practice with some regularity. Now Amtrak has announced that travels on its trains nationwide will be subject to random searches of their carry on bags.

According to the courts, Americans do not have a reasonable expectation of privacy for most of the web sites they visit on the web. More specifically, any specific website visited that has its own top level domain name and its own unique IP address are registered with your service provider and may be accessed by the government without a court order. (see US v Forrester, 2007).

Virtually all the personally identifiable information (PII) produced in cyberspace can easily be transmogrified into ‘evidence’ even if it was gathered illegally (see US v Jarrett, 2003, p. 7). Ones Facebook profile can be used as evidence in both civil and criminal charges.

The Privacy Act of 1974, which was intended to strictly limit the sharing of data between federal data bases, has all but been abandoned. Vast federal “systems of records” (National Directory of New Hires, National Center for Education Statistics, mtDNA Population Database, National Crime Information Center) are increasingly interconnected with state and private data sources in massive clearing houses such as the Investigative Data Warehouse (IDW) and OneDOJ. This practice of information sharing is being institutionalized within new “fusion centers” popping up all over the country. This dismantling of the Privacy Act is officially denied using the following rationale: data sharing across departments in the government is now a matter of “routine use” during the War On Terror.

According to Donald Kerr, the principal deputy director of U.S. national intelligence, no American should expect to speak or act today without casting a data shadow that is visible to the federal government.

Barring some radical reinterpretations of online space and boundaries, the Fourth Amendment seems doomed to irrelevancy. “Reasonable expectation” of privacy is always relative and will easily accommodate the surveillance “function creep” without limit. The only hope for resistance is a public with a reinvigorated sense of privacy and its connection to true individual autonomy.

As we watch what happens in the House, we must keep in mind that the battle against excessive state surveillance will not be won or lost with this bill. Most importantly, people whose interest in privacy values have been rekindled with this recent Senate betrayal should not feel victorious if this latest attempt at immunity is somehow scuttled. While the public sphere has been focused on the importance of wiretapping, it appears to have neglected the rapid emergence of a dossier society, highly reminiscent of Kafka’s The Trial.

The whole dossier continues to circulate, as the regular official routine demands, passing on to the highest Courts, being referred to the lower ones again, and then swinging backwards and forwards with greater or smaller oscillations, longer or shorter delays….No document is ever lost, the Court never forgets anything. One day – quite unexpectedly – some judge will take up the documents and look at them attentively….And the case begins all over again?” asked K. almost incredulously. “Certainly” said the painter. (Kafka, The Trial, 1925, cited in Solove, 2004, pp. 36-37)

While we fight what appears to be a losing battle over real-time wiretapping we have lost control over our papers and effects, and thus the construction of our own identity. It’s time to look beyond FISA.