Those of you who watch the Simpsons might recall the episode in which Homer dies, but can’t get into Heaven because he has never done a good deed. He is sent back, and, quite by accident, does a good deed. He goes back to Heaven, but God says He wasn’t looking and didn’t see it. Homer says “I thought you see everything.” God replies “I believe you have me confused with Santa Claus.” While we have some question about the theological soundness of the Simpsons, more and more of what we do is observed.
Worldwide, Eschelon and Carnivore can capture a significant portion of unencrypted communications worldwide. And it has become clear that eavesdropping on telephone calls and electronic communications is being done by the government in the U.S. While the NSA is required by law to go to the Foreign Intelligence Surveillance Court for permission to eavesdrop on American soil, in practice this has been bypassed, with wiretaps being performed domestically and without court orders. And while Admiral Poindexter’s Total Information Awareness (T.I.A.) data mining program was shut down, a 2004 General Accounting Office report noted that 52 federal agencies had 131 data mining operations going, with an additional 68 planned.
The stated justification for all this activity is that we need to fight terrorism, and that the pesky Fourth Amendment constrains us in this vital endeavor. The administration’s position is that the 14 September 2001Congressional joint use-of-force resolution allowing the president “to use all necessary and appropriate force” to combat terrorism authorizes him to do anything he chooses, domestically and abroad, including warrantless wiretaps, and suspension of habeas corpus.
It is quite predictable that in time of stress presidents from Lincoln through Bush have believed that civil liberties are a constraint that must be bypassed to prevent a threat to the American way of life (i.e., civil liberties). In general, whether fighting secessionism, Communism, terrorism, gangsterism, or almost any of the other isms that have threatened us, the knee-jerk response to those who question violations of civil liberties in the face of very- real problems have been:
A) You are unpatriotic and supporting the threat du jour.
B) If you had nothing to hide you wouldn’t object.
Putting aside the invariable misuse of power when it is not constrained by oversight and transparency, it is important to remember that laws are enforced based on their content, not their intent. Thus, for example, the RICO (Racketeer Influenced and Corrupt Organizations) Act was designed to fight the Mafia, yet is most widely used in civil prosecutions. And that while the USA Patriot (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act was nominally intended to fight terrorism, prosecutions are largely not related to terrorism. Thus, since the Congressional resolution was so lacking in constraints, it is reasonable to expect that the executive branch will freely use the power it has been given, until it is restrained by the legislative and judicial branches. The whole point of our system of checks and balances is, after all, to constrain the use of power before it harms the country too much.
But it is not just monitoring of communications that allows Santa to keep his list of who is good and who is bad. Someone we know recently got a letter saying that EZPASS (the device that allows you to go through a special lane on the highway and have tolls billed to your account, rather than stopping to pay) had marked his going through the toll booth at 35 mph, and that if it happened again his account would be cancelled. We are given to understand that people have received tickets for speeding based on EZPASS tollbooth times. This is not dissimilar to the way people receive tickets for running red lights, based on cameras designed for just that purpose.
And cameras are everywhere. London, England, for example, has an estimated 150,000 public cameras, and the average citizen is caught on camera 500 times a day. England itself has about 2.5 million cameras. While crime rates have gone up in England, use of these surveillance systems has received wide support from camera manufacturers. Other cities – Washington, D.C. springs to mind – have followed London’s example with equal enthusiasm.
Other cities haven’t automated things yet, but habitually photograph members of suspected criminal groups, and keep dossiers of them. The Denver police, for example, had dossiers of members of “criminal extremist” groups such as the Quakers.
Sometimes these sorts of things are done in a non-intrusive manner. In New York City, for example, random searching of passengers entering the transit system was put in place. We ourselves never saw anyone searched, but if you didn’t want to be searched you had the option of declining and leaving, presumably coming in, unsearched, via another entrance. Some have said that the goal of this policy was twofold. First, it was an election year, and thus security theatre was important. Second, that the City administration believed the ACLU would take them to court, where the procedure would be forbidden. Then, if any incident took place in the subway, it could be said that they could have stopped it had not the ACLU prevented them.
Lest you think that governments are the only invaders of your privacy, if you play CDs on your computer you need to check whether you have played any of the Sony-BMG CDs¹ that automatically installed malware on Windows machines (we ourselves have Autorun turned off on our Windows computers, so the program should not have started even if we loaded a Sony malware CD). Among other things, the Sony-BMG rootkit, which makes itself invisible, opens your computer to attacks by others. There was a furor over this when discovered, and Sony-BMG made available a remover (which didn’t actually work). Now the CDs ask if they can install a program called MediaMax. If you say no, it will de-activate when you reboot, and remain inactive until you play another infected CD, at which point it will install itself permanently. Not buying any Sony-BMG CDs avoided the problem. More information on this can be found by doing a search for “sony malware”, or at http://www.boingboing.net/2005/11/28/sony_cd_spyware_inst.html, and http://www.sysinternals.com/blog/2005/10/sony-rootkits-and-digital- rights.html, to pick one non-technical and one technical article at random.
All of this brings us back, as always happens with any discussion of public policy, to the five questions, adopted from Bruce Schneier, that should be asked of any policy or measure:
1. What problem is the policy or measure trying to solve?
2. How can it fail in practice?
3. Given the failure modes, how well does it solve the problem?
4. What are the costs, both financial and social, associated with it, and flowing from its unintended consequences?
5. Given the effectiveness and costs, is the policy or measure worth it?
1 The list supposedly included Trey Anastasio, Shine (Columbia), Celine Dion, On ne Change Pas (Epic), Neil Diamond, 12 Songs (Columbia), Our Lady Peace, Healthy in Paranoid Times (Columbia), Chris Botti, To Love Again (Columbia), Van Zant, Get Right with the Man (Columbia), Switchfoot, Nothing is Sound (Columbia), The Coral, The Invisible Invasion (Columbia), Acceptance, Phantoms (Columbia), Susie Suh, Susie Suh (Epic), Amerie, Touch (Columbia), Life of Agony, Broken Valley (Epic), Horace Silver Quintet, Silver’s Blue (Epic Legacy), Gerry Mulligan, Jeru (Columbia Legacy), Dexter Gordon, Manhattan Symphonie (Columbia Legacy), The Bad Plus, Suspicious Activity (Columbia), The Dead 60s, The Dead 60s (Epic), Dion, The Essential Dion (Columbia Legacy), Natasha Bedingfield, Unwritten (Epic), Ricky Martin, Life (Columbia).