Surveillance, Security in Post September 11^th America

(THIS IS A PAPER THAT WAS ACCEPTED FOR THE BARCELONA CONFERENCE, BUT WAS NOT PRESENTED DUE TO THE PROBLEMS WITH THE SCHEDULE./ A.Richter)

Good morning and welcome to the White House. Today we take an essential step in defeating terrorism, while protecting the constitutional rights of all Americans. With my signature, this law will give intelligence and law enforcement officials important new tools to fight a present danger.

President George W. Bush, Remarks on Signing the
USA PATRIOT ACT of 2001, October 26, 2001
(Weekly Compilation of Presidential Documents 2001)

We have always watched each other. From the beginning of time watching others has served a need to protect oneself against unwelcome strangers or as a means of entertaining oneself while observing the unaware other. Some perform for the unknown other, while some hide. Acts of surveillance are not unusual, not unexpected, and not even unwelcome. According to The Oxford Universal Dictionary, Surveillance “is a watch or guard kept over a person, esp [ically] a suspected person, a prisoner, or the like; often spying, supervision; less commonly, superintendence”(The Oxford Universal Dictionary 1955, 2092). The motives and variations on a theme of surveillance are complicated and confusing. Surveillance is both welcome and objectionable. It is sought after and avoided. It is an indication of intolerance, security and safety. It is an art practiced by the fashionable. It is a penalty imposed by oppressors upon the oppressed. When practiced by government upon other nation states, the ritual may be called espionage or information gathering. When it is imposed by the governing upon its citizens it can be considered as an act of repression.

"In crisis, it's always likely to raise the question of how important life and liberties are," said John Seigenthaler, founder of the First Amendment Center at Vanderbilt University. "Liberties are never safe and secure. They are always in the process of being made safe and secure." (Civil Libertarians 2001). While surveillance measures elicit immediate emotion reactions, they cannot be understood in a vacuum and require an understanding of the pre-existing context into which they are being introduced. Countless commentators have compared a world before and after the events of September 11^th.

This article explores the relationship of needs for surveillance and privacy associated with the perception of danger or risk and examines the impact of the attack on America on the relationship of government and governed. It will survey the pre-existing attitudes and initiatives with regard to surveillance and privacy in the U.S. preceding Sept. 11^th, consider the USA Patriot Act as it effects surveillance and discuss the phenomenon of surveillance technology as a pivotal point in the relationship of government and governed in a free society.

The Pre-existing Landscape of Fear

The terrorist attacks of September 11 did not cultivate a “new landscape of fear” but rather built upon a pre-existing anxiety strong enough to threaten and reshape American attitudes concerning basic freedoms. The attacks accelerated the erosion of the delicate balance between control and liberties

To more fully understand the degree of attitude change with regard to communicative, associational and privacy rights, it is necessary to contrast the pre-existing context with the emerging post-attack environment. Prior to the events of September 11 the movement toward a new surveillance society (Boal 1998), one structured with a built-in antipathy toward the public place, had already emerged.

The Rise of Private Life

For more than the past decade increased fear of violence and crime, particularly in urban areas, resulted in a fall of public and the rise of private life. This fear was built into the physical as well as psychological landscape transforming traditional forms of community and public space into a landscape characterized by gated communities, locked neighborhoods, private security and limited access housing developments. A cultural mood motivated by fear is being "written" on the landscape. For some time critics have voiced concern over the demise of the public realm questioning the fate of a society living in a world of walled enclaves and marginalized public space. From Sennett’s The Fall of Public Man (1977) to Robert Putnam’s Bowling Alone (2000), the decline of public life and civic institutions has been chronicled. The precipitous drop in what Putnam referred to as social capital, that is, the value placed on people dealing with other people in either formal or informal organizations and interactions has been documented over the past 35 years (Putnam, 2000). From social critics to public opinion polls, associated concerns have been expressed over the social health of American society, apprehension characterized as a “civility crisis” (Carter 1998). A U.S. News and World Report survey published in April 1996 yielded compelling data regarding the perceived decay of civility in contemporary America. According to the survey, 89% of Americans thought that incivility was a serious problem; 91% that the decline in civility contributed to violence; 85% that this decline contributed to the division or fractionalization of the national community (The Johns Hopkins Civility Project, 1999). George Walker Bush was sworn in as the nation’s 43^rd president with a call for compassion and civility in public life. Many universities have enacted civility codes. In New York City civility was placed on the political agenda by Mayor Rudolph Guiliani who declared it as a central component of his “Quality of Life Program,” a series of initiatives designed to achieve mutual respect as an anchor of community.

Putnam’s view of “social capital” assumes that each relationship is an asset to be cultivated and accumulated. We assert that the asset of “privacy”, perhaps due to its increasing scarcity, became the more coveted asset. The late 20^th century saw the ascending value of privacy and the decline in public obligation along with the acceptance of disconnection. Social interaction has steadily moved from the public realm into protected and controlled homes, offices, and laptops. Simultaneously, the ascendancy of privacy as a value rose along with fear and the opportunities for privately accessed interaction. Technological developments make practicable unrestricted private life for those seeking safety and security. Communication media, in particular, enabled the privatization of public relationships allowing for the transition from communities of propinquity to communities of association.

Prior to September 11^th, 2001 the seduction of private life at the expense of public life was described as a process in which

the more one seeks safety, the more one denies the security provided by human interdependence. Denial of obligation is linked to risk and chance taking. One avoids public space because of its potential dangers and embraces technology to reduce risk. (Gumpert and Drucker 2002).

As all Americans are pulled or pushed into a telecommunications environment, that move is accompanied by an effort to bolster privacy rights in an environment in which life is more easily monitored and searched. Concern for privacy has stimulated a great deal of media coverage and commentary reflected in books such as The Limits of Privacy (Etzioni 2000) The End of Privacy, (Sykes 1999), and The End of Privacy: How Total Surveillance is Becoming a Reality (Whitaker 2000). Others were In Pursuit of Privacy (Decew 1997) and warned of The Unwanted Gaze: The Destruction of Privacy in America (Rosen 2000). Repeatedly the message was that “legal, technological and cultural changes have undermined our ability to control” our personal information (Rosen 2000).

A 1998 Harris-Westin privacy survey reported almost nine out of 10 Americans (88%) said they were concerned about general threats to their privacy (Westin 1998). A Business Week/Harris poll taken in March 2000 confirmed the deep concerns Americans felt. The poll concluded that more than half of all American favored some sort of public policy on how personal information can be collected and used on the Internet. 35% would not be comfortable with their online actions being profiled, but four in five reported that their concern was rising in regard to the status of privacy, on the net in particular, with 57% favoring some sort of legal regulation over how personal information can be collected and used. This poll conducted by Louis Harris and Associates, Inc. (A Little Net Privacy Please 1998), in conjunction with Alan Westin found that both computer users and non-users alike have a high degree of concern about online privacy confirming similar findings of a similar survey taken by the Center for Communication for Democracy and Technology (CDT 1997).

The preoccupation with privacy, particularly data privacy was confirmed by the more than 30 pieces of legislation introduced to the 107^th Congress during 2001. A sample of the titles reflect the concerns: Consumer's Right to Financial Privacy Act, National Consumer Privacy Act, Social Security Number Privacy and Identity Theft Prevention Act of 2001, Personal Pictures Protection Act of 2001, Personal Information Privacy Act of 2001, Medical Information Protection and Research Enhancement Act of 2001, Wireless Privacy Protection Act of 2001, Wireless Telephone Spam Protection Act, and the Online Privacy Protection Act of 2001 (CDT 2001). Consumer confidence, financial and medical confidentiality, and online activities characterized the privacy initiatives (many still pending). Sites of mediated communication in particular were perceived as dangerous to privacy while the physical environment; public places in particular, were perceived as being a threat to physical safety.

The Surveillance Society

Simultaneously and in stark contrast, surveillance cameras continued to be introduced into public places and streets throughout the United States meeting little, if any, resistance. Cameras placed in public places by private security forces and police departments, including cameras linked for transmission via the Internet, became commonplace. USA Today reported that in the United States in the year 2000, a million closed-circuit cameras, most with videotape recorders, were used by the private sector in offices, apartment buildings, garages, stores, banks and restaurants (Zuckerman 2001). Most, if not all, urban centers in the United States utilize closed-circuit television in public places for surveillance purposes. The proliferation of surveillance cameras trained on public spaces has received extensive examination in New York City where the New York Civil Liberties Union undertook the Surveillance Camera Project. 2,397 visible surveillance cameras were found in Manhattan alone, not accounting for the unknown numbers hidden from view [New York City Surveillance Camera Project 1999]. Digital cameras were placed at the entrances to the Super Bowl, where photographs were taken of all entering fans. The images were fed into the Federal Bureau of Investigation’s (F.B.I.) database, to search for matches with known criminals. Entry into this public place was viewed as consent to surveillance (McCullagh 2001). Face recognition technology like that used at the Super Bowl later introduced 36 face recognition cameras into the streets of the renovated entertainment district of Tampa, Florida (O’Harrow 2001) In each case groups labeled “civil liberties advocates” raised objections but the general public outcry was not tremendous.

But the U.S. is not the leader in surveillance of public spaces. The United Kingdom has been the largest user of closed-circuit television (CCTV) in the world. Clive Norris, a criminologist at Hull University estimated a million cameras in use there. By 1998 440 city centers had been wired with CCTV equipment. The U.K. has many different surveillance systems and according to one estimate there are 2.5 million surveillance cameras in Britain in the Fall of 2001 (Rosen 2001, a). The motivation for the wiring of Britain was fear of terrorism. In 1993 and 1994 I.R.A. terrorist bombings shook the City of London’s historic financial district. “In response to widespread public anxiety about terrorism, the government decided to install a ‘ring of steel’—a network of closed-circuit television cameras mounted on the eight official entry gates that control access to the City” (Rosen, a, 41). The Majors government dedicated over three-quarters of its crime-prevention budget to encourage local authorities to install CCTV systems. Subsequently, Tony Blair’s New Labor government continued to provide strong support for surveillance camera initiatives. Terrorism may have motivated installation of cameras in the United Kingdom, but no terrorists have been caught using the technology. The value is said to be as a deterrent and in making people feel safer by feeling they are being watched. It is the amorphous deterrent value rather than the hard arrest figures that are said to count (Rosen 2001 a 43). “The technology…is geared up to terrorism. The fact that we’re getting ordinary people—burglars stealing cars—as a result of it is sort of a bonus” according to Tim Parsons, press officer, City of London (Rosen, a., 42). Face recognition technology, biometric surveillance systems have been introduced in Britain although it is acknowledged that it is still experimental. There are plans to establish a facial recognition database that would include terrorists as well as all British citizens whose faces were registered with the national driver’s license bureau.

Early evidence supports some reduction in crime and the increased sense of security ascribed to the presence of the camera eye.(NYC Surveillance Camera Project 1999). Most often, cameras are installed quietly prompting few complaints. However, cameras mounted in New York City s Washington Square Park have led to a protest led by the New York Civil Liberties Union which has begun to question the proliferation of cameras in the city (Halbfinger 1998, 32). Surveillance was accepted as the need for safety and control came to overshadow and outstrip most other needs. In The End to Privacy (1999) Charles Sykes noted an alarming the lack of agitation by the public in the face of threats to individual privacy and autonomy. “Everyday we make bargains of convenience, trading little bits of our privacy for a reduction of hassles” (Lewis 1998 G1).

Acceptable Measures and Surveillance

There is nothing intrinsically positive or negative about the process of surveillance, yet surveillance can be transformed into an objectionable action. There is a strange threshold because the reasons and motives of support or rejection are seldom clearly articulated. The boundary is a murky convoluted area of contradiction and acceptance. The following defining factors are meant to delineate circumstances that push a person to toward either acceptance or objection to surveillance;

• when it is discovered that one’s private life is made public without permission leading to a sense that the boundaries of privacy have been violated;
• when it is revealed that unknown technological devices are used as means of surveillance or when any technological devices are interposed into a situation where social surveillance is accepted and perhaps even desired.

Telephone or wire-tapping.

Computer cookies

Heat sensing devices

Hidden cameras and eavesdropping devices

Biometric Tracking;

• when freedom of movement and action once undeterred is limited or

prohibited;

• when governing authorities repress, bar and/or deter freedom of expression by direct and indirect means;
• when operationalized under recognized circumstances of emergency and crisis for a limited and defined critical period;
• when there are no means or alternatives available to avoid surveillance;
• when the control and/or responsibility of surveillance is relocated from immediate supervision (family and community) to required application and regulation by institution or the state;
• when the results of surveillance are potentially or permanently documented and/or are reproduced without notice. In short, when personal actions become recorded events;
• under conditions where imposed restrictions provide a degree of safety and security otherwise not available;
• when the conditions of surveillance are imposed rather than volunteered and when individual choice is denied;
• when the right not to be publicly visible, to function within an umbrella of relative anonymity, gives way to the demands and will of government on behalf of the public good.

A buffer zone of ambiguity and uncertainty exists within which some degree of surveillance is not only tolerated, but also desired. Within such a theoretical region the individual gives up some degree of autonomy and self-determinism, is willing to volunteer the operation of surveillance to others. It is not possible to exist within a social system without accepting some degree of surveillance.

Surveillance Society: Monitoring Everyday Life (2001), David Lyon asserts that there are ambiguities associated with surveillance traceable to a split between ‘control’ and ‘care’ motifs. Watching may be motivated by protective impulses or the desire to avoid harm. He notes the same process, surveillance—watching over—both enables and constrains, involves care and control “ (Lyon 3). Suggested sources of apathy include a sense of futility in the face of ubiquitous technology. Sykes attributes such apathy to the “tell-all” talk show mentality of Americans (Sykes 1999). Another explanation is that while Americans seek privacy they are actually calling for a reduction in the obligations required by communities and relationships (Gumpert & Drucker 1998). New surveillance-based security does not require the engagement demanded by the old fashioned version of surveillance--watching out for ones neighbor (Drucker & Gumpert 2002). Motivated by the need to control or the desire to avoid the duties associated with care, public outcry against encroaching surveillance has been muted.

The Transformed Landscape of Fear

Under conditions of catastrophe and war it is assumed that for a specified period of time the usual social regulators of surveillance may have to be augmented, shifted or suspended or that such social regulators would have to operate in tandem with governmentally imposed requirements and regulations. Such precautionary and protective measures have generally been accepted without much opposition or protest – whether the action taken was warranted or not. Historically, the action taken by the U.S. government during times of war has been to protect its national interests against distant and clearly defined enemies. If, in the course of such events the civil liberties of its own citizens are violated or threatened by such temporary measures, the means apparently justified the end.

A different type of enemy and new and unique arena(s) of conflict resulted from the catastrophic events of September 11. Both internal and external crises bring with them the potential legal and illegal, immorally defensible and indefensible, curtailments of rights assumed to be inalienable. Yet, the U.S. constitution specifies only one emergency power within the constitution.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

In a 1996 lecture Supreme Court Chief Justice William Rehnquist said

The Civil War was the first time that the United States government mobilized for a major war effort, and a major war effort necessarily results in the curtailment of some civil liberties (Civil Liberty 1996).

So there was precedent for the denial of the rights of the accused to face those who have brought action against them, to be able to challenge those who bring charges.

Historically, in times of national stress -- real or imagined -- First Amendment rights come under enormous pressure. During the “Red Scare” of the early 1920s, thousands were deported for their political views. The Sedition and Espionage Acts of World War I attempted to squash the speech rights of those who opposed the conflict and resisted conscription and military draft. Thus Eugene Debs was tried and imprisoned for such action on behalf of the Socialist party. Supreme Court Justice Oliver Wendell Holmes declared that the defendants had no more right to oppose the draft in wartime than a person has the right to shout fire in a crowded theater With the attack of Japan upon the United States in 1941 the rights of 110,000 Japanese Americans was violated when they were interned in prison camps because of their racial background during World War II. The 1950s cold war McCarthy period demonstrated the fragility of freedom of speech. There many more instances of civil liberty violations that could be cited – practiced in the name of security, safety, and the welfare of a threatened nation.

The 2001 U.S.A. Patriot Act

Our particular focus is not simply upon the violation of civil rights, but upon the means utilized by government to discover and punish acts perceived to be threats upon security. While the 2001 U.S.A Patriot Act was not an unexpected response to the attacks of September 11, the implications of governmental action and legislation requires carefully scrutiny

Any major threat requires that government and its agencies not only enforce measures in the name of crisis and security, but it necessitated that development of means and technology to seek out the perpetrators of potential and actual thought and action thought to be detrimental to the welfare of the nation. For purpose of this discussion, the recently passed U.S.A. Patriot Act emphasizes the importance of communication technology as instruments of potential espionage and design, particularly in light of terrorism’s global nature and the convergent nature of recent communication technology in which one medium is intimately integrated into another. At the same time, the U.S.A. Patriot Act represents the application and growing sophistication of the U.S. government in using and applying communication technology to invade the privacy of its citizens in its attempt to deter and apprehend those deemed to be enemies of the state. New York Senator Charles Schumer seemed to capture the sentiments of his colleagues during floor debate stating that “the home front is a war front” in arguing that the police needed new surveillance powers (McCullagh a).³

The short title of the U.S.A. Patriot Act (2001) states that the purpose of the legislation is “too deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.“ By definition, the stress is on the increasing dependence upon sophisticated tools of surveillance. Of the ten titles that constitute the legislation Title II is of particular significance because it is entirely dedicated to “Enhanced Surveillance Procedure.”

Sec. 201. Authority to intercept wire, oral, and electronic communications relating to terrorism.

Sec. 202. Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses.

Sec. 203. Authority to share criminal investigative information.

Sec. 204. Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications.

Sec. 205. Employment of translators by the Federal Bureau of Investigation.

Sec. 206. Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978.

Sec. 207. Duration of FISA surveillance of non-United States persons who are agents of a foreign power.

Sec. 208. Designation of judges.

Sec. 209. Seizure of voice-mail messages pursuant to warrants.

Sec. 210. Scope of subpoenas for records of electronic communications.

Sec. 211. Clarification of scope.

Sec. 212. Emergency disclosure of electronic communications to protect life and limb.

Sec. 213. Authority for delaying notice of the execution of a warrant.

Sec. 214. Pen register and trap and trace authority under FISA.

Sec. 215. Access to records and other items under the Foreign Intelligence Surveillance Act.

Sec. 216. Modification of authorities relating to use of pen registers and trap and trace devices.

Sec. 217. Interception of computer trespasser communications.

Sec. 218. Foreign intelligence information.

Sec. 219. Single-jurisdiction search warrants for terrorism.

Sec. 220. Nationwide service of search warrants for electronic evidence.

Sec. 221. Trade sanctions.

Sec. 222. Assistance to law enforcement agencies.

Sec. 223. Civil liability for certain unauthorized disclosures.

Sec. 224. Sunset.

Sec. 225. Immunity for compliance with FISA wiretap.

The style of legislation makes it difficult to determine the nuances and significance of each title and section of the act because the specifics are linked to multiple codes and previously enacted statutes and to the jurisdiction and authority of other Federal bodies and organizations. With enough time such a comprehensive document would emerge, but the scope and magnitude of such a task far outstrips the current manuscript. Thus, for example, Section 203. “Authority to Share Criminal Investigation Information” and the (a) authority to share grand jury information” is linked to Rule 6(e)(3)(c) of the Federal Rules of Criminal Procedure. Section 209 – “Seizure of voice-mail messages pursuant to the warrants” is linked to title 18 of United States Code and involves the amending and/or striking out of subjections of that previous legislation.

Other titles of the legislation which apply to “Money Laundering” (Title 3) and the “Protecting the Border” (Title IV) explicitly involves some elements of surveillance. Legislators who approved the bill note that the most controversial surveillance sections will expire in 2005. But exempt from the expiration date are investigations underway by Dec. 2005, and any future investigations of crimes that took place before that date.

What does all this mean in terms of surveillance? Some degree of surveillance has always been part of any social and governmental milieu. At this writing, much is left to conjecture but to provide a taste of the implications of the changing legal and psychological environment consider the following as noted by Declan McCullagh in Wired Magazine (2001 a).

• Police will have the permanent ability to conduct Internet surveillance without a court order in some circumstances, secretly search homes and offices without notifying the owner, and share confidential grand jury information with the CIA.

• Police can sneak into someone's house or offices, search the contents, and leave without ever telling the owner. A court would supervise this, and the notifications of the surreptitious search "may be delayed" indefinitely. (Section 213)
• Any U.S. attorney or state attorney general can order the installation of the F.B.I.'s Carnivore surveillance system and record addresses of Web pages visited and e-mail correspondents -- without going to a judge. Previously, there were stiffer legal restrictions on Carnivore and other Internet surveillance techniques. (Section 216)
• Any American "with intent to defraud" who scans in an image of a foreign currency note or e-mails or transmits such an image will go to jail for up to 20 years. (Section 375) (McCullagh 2001 a).
• Expands records that can be sought under the Electronic Communications Privacy Act (ECPA) without a court order to include recoreds of session times and durations, means and source of payments including any credit card or bank account number (Section 210).

Most of the powers are not confined to investigations concerning terrorism, but apply to any criminal investigations. Police will have the permanent ability to conduct Internet surveillance without a court order in some circumstances, secretly search homes and offices without notifying the owner, and share confidential grand jury information with the C.I.A..

Surveillance may be carried out for a variety of purposes often distinguished by whether it is part of a criminal investigation or utilized with the object being intelligence gathering. The new law extends the authority of domestic law enforcement agencies including the F.B.I. to subject Americans to surveillance measures for "intelligence" purposes (as compared with investigating criminal activity which triggers criminal procedures and the privacy protections that are built into those procedures). Within the context of a criminal investigation, the principal statute governing electronic surveillance, Title III of the Crime Control and Safe Streets Act of 1968, is constrained in scope and judicial check. With the exception of emergencies, law enforcement officials have the burden of persuading a judge that they have probable cause that the interception they seek may provide evidence of an enumerated offense. Judicial supervision and the ultimate threat of the exclusionary rule rendering inadmissible, in judicial proceeding, evidence inappropriately obtained distinguishes Title III warrants. This type of investigation is in direct contrast with intelligence gathering more often associated with The Foreign Intelligence Surveillance Act of 1978 [FISA] at gathering information about the activities of foreign persons and agents in which judicial involvement is minimal and the standard of proof for authorization does not rise to the level of a showing of probable cause. Permission for this type of surveillance and supervision is nominal. Surveillance orders are issued on a certification by the Attorney General that has nothing to do with probable cause. Since it is intelligence rather than evidence being gathered there are fewer legal challenges, especially since the subjects may never even know they have been the subjects of surveillance. The USA Patriot Act allows surveillance of U.S. citizens under standards more like FISA than Title III so FISA warrants may now be used even if intelligence is not the primary purpose of an investigation.

Any Internet provider or telephone company must turn over customer information, including phone numbers called -- no court order required -- if the F.B.I. claims the "records sought are relevant to an authorized investigation to protect against international terrorism." The company contacted may not "disclose to any person" that the F.B.I. is doing an investigation. (Section 505) (McCullagh, 2001, a).

Governmental authority already existed for courts to order a telephone company to turn over a list of the numbers being dialed to and from a particular telephone, on a standard less than probable cause if government certifies that the information sought is “relevant to an ongoing criminal investigation,” and this has been extended to “dialing, routing and signaling information” in connection with computers. This tool provides information on context (i.e. e-mail addresses, websites visited) rather than content and the Department of Justice promises to limit observation to avoid content but there is no way (to date) of overseeing whether this promise is kept. Further, public access computers such as those in public libraries and cyber cafes can subject unsuspecting “non-target” citizens using those computers to government surveillance as well.

Particularly important is that the recent act sanctions the right of governmental agencies to extend wiretapping activities by permitting such activity to apply to a person rather than a designated telephone number. Therefore, all items of a person’s communication means would be searchable without the designated person’s awareness: mobile telephone, cell phone, and on-line communication means.

The new definition of terrorism and the amendment of previous terms expands the scope of surveillance. They are 1) § 802 definition of "domestic terrorism" (amending 18 USC §2331) (which may effect protest activity resulting in conviction on terrorism charges) and adds to the existing definition of terrorism (int'l terrorism per 18 USC §2331, terrorism transcending national borders per 18 USC §2332b, and federal terrorism per amended 18 USC §2332b(g)(5)(B)). These new definitions expose more people to surveillance (and potential "harboring" and "material support" liability, §§ 803, 805).

Biometric technology, such as fingerprint readers or iris scanners, will become part of an "integrated entry and exit data system" with the identities of visa holders who hope to enter the U.S. (Section 414). The attacks of September 11^th have accelerated the adoption of face recognition technology that is expected to grow from $200 million in revenue in 2001 to a $2 billion industry in 2004 (O’Harrow 2001). Face recognition technology couples cameras and databases with digital images. A digital map of an individual's face is created by identifying key elements of the face then translating the contours into mathematical formulas said to be as unique and distinguishing as a fingerprint. Software then compares faces captured by a video camera against images stored in a database. The leading makers of face-recognition systems are Visionics Corp. and Viisage Technology. Biometric databases, to date, have not been limited to suspected terrorists since few terrorists are suspected before they commit they take steps to commit their crimes. This technology embraced in Britain has been slower to be accepted in other European nations who are more squeamish about such technologies (Rosen 2001). Joseph Atick, inventor of one technology, acknowledged that in the Summer of 2001 he was concerned that his creation, in the wrong hands, might "evolve into the realization of Big Brother." (O’Harrow 2001). But criticism has faded since the Sept. 11 terrorist attacks. Airport authorities throughout the country are racing to test or order the systems. Logan airport in Boston, Oakland International Airport in Oakland, Calif.; T.F. Green Airport in Providence, R.I.; and Fresno Yosemite International Airport in California are among those adopting identification technology to check passengers. Critics and civil libertarians say biometric companies are preying on the fears rather than offering a promising solution to prevent terrorism. A Department of Defense study reported a high rate of error when identifying suspects even under ideal conditions (Olsen and Lemos 2001). The new surveillance powers granted will expire after four years pursuant to the statute’ sunset provisions (USA Patriot Act 2001).

Changing Surveillance Programs

Governmental surveillance measures, previously in effect, have become more significant and perhaps more tolerable. The Carnivore device, first revealed in July 2000 provides the F.B.I. with a "surgical" ability to intercept and collect the communications that are the subject of the lawful order while ignoring those communications that they are not authorized to intercept in an effort to meet federal wiretapping requirements of minimization. The Carnivore device works like commercial "sniffers” but also provides the F.B.I. with a unique ability to distinguish between communications that may be lawfully intercepted and those that may not (Carnivore 2001). Carnivore gives the F.B.I. access to all of a target’s communication and to non-targets as well using the same Internet Service Provider. Section 216 of the USA Patriot Act gives the F.B.I. access to communications of non-targets and to portions of the target's communications to which it is not entitled under the court order it obtained.

Another government tool was addressed in 1994 when Congress adopted the Communications Assistance for Law Enforcement Act (CALEA, or the digital telephony law). CALEA was intended to preserve but not expand law enforcement wiretapping capabilities by requiring telephone companies to design their systems to ensure a certain basic level of government access. But the F.B.I. has tried to use the law to expand its capabilities, turning wireless phones into tracking devices, requiring phone companies to collect specific signaling information for the convenience the government, and allowing interception of packet communications without privacy protections (Center for Democracy and Technology 2001). The F.B.I. may be pushing for extension to the Internet of the Communications Assistance for Law Enforcement Act, the 1994 law requiring telecommunications carriers -- but not providers of information services -- to build surveillance capabilities into their networks.

Echelon is said to be the most powerful intelligence gathering organization in the world. ECHELON attempts to capture staggering volumes of satellite, microwave, and cellular and fiber-optic traffic, including communications to and from North America. This vast quantity of voice and data communications is then processed through sophisticated filtering technologies. This massive surveillance system operates with little oversight. Fundamental questions raised by these initiatives and technologies remain including are rights of US citizens adequately protected from U.S. government surveillance overseas?

Perhaps the most radical provision of the USA PATRIOT Act, Section 218, which amended FISA's wiretap and physical search provisions to conduct surreptitious foreign intelligence wiretaps and physical searches without the showing of probable cause apparently opened the door to further demands with regard to surveillance. By the end of November 2001, the Department of Justice proposed several amendments to the Foreign Intelligence Surveillance Act (FISA) that, if passed by Congress would further expand government surveillance within the U.S. Proposal includes expanding the scope of the FISA to include to individuals working as an agent of a “foreign power,” that is to say, a single person engaged in international terrorism would come within the definition of “foreign power.” If an individual can be a foreign power, then other individuals working as an agent of that person, including US citizens within the US would become subject to wiretapping and secret physical searches, who knowingly aids or abets any person who engages in clandestine intelligence gathering activities or activities in preparation for international terrorism on behalf of the person who is the foreign power. It would also extend the time before which a court would be required to approve emergency orders to conduct surveillance up to 72 hours without appearing in a FISA court whereas the former time limit was 24 hours. This change would allow the Attorney General on his own to carry out FISA surveillance for up to 3 days before going to a FISA court. In another proposed change (post USA Patriot Act), even broader access to records is being sought giving the government authority to obtain any records from any business or other person upon the mere claim that the records are "sought for an authorized investigation" not limited to investigations to protect against international terrorism or international terrorism and would also give the government the ability to collect records whenever it is to "obtain foreign intelligence information not concerning a United States person" (DOJ Proposes Further Surveillance Expansion 2001).

Conclusion

Amitai Etzioni has stated that “[w]Without privacy no society can long remain free," (Etzioni 2000). But sentiments today also reflect another Etzioni assertion - that our communities also have other goals that sometimes must override the privacy imperative. Whereas the surveillance/privacy relationship formerly distinguished between attitudes associated with risk in the physical vs. mediated environments, the post September 11^th reactions seem to have minimized the distinction with regard to privacy. Physical and mediated spaces have been merged, differences transparent as the threats in one environment are fueled by activities in the other.

Surveillance measures clearly reflect the awareness on the part of authorities that investigation, law enforcement and deterrence require access to the full range of communication options available to terrorists. Newly authorized access records of Internet and telephone are justified since these are now the essential tools in carrying out the global enterprise of terrorism

Public acceptance of many of these measures reflects a shift in priorities. While previously Americans were willing to exchange some degree of privacy for the perception of safety, post September 11^th has pushed for greater acceptance of surveillance and thus, it follows, that governmental monitoring has grown. A NBC/Wall Street Journal poll indicated that More than 7 out of 10 individuals supported increased security measures against terrorism, even if that means reduced privacy protections. CBS News/New York Times and an ABC News/Washington Post found similar results in their polls conducted in September 2001 (Poll Strong Support for War Effort 2001; Langer2001). Only 20% in the Los Angeles Times poll were "very concerned" about restrictions on civil liberties, and 61% thought it would be necessary for average people to give up some of their personal liberties in order to prevent terrorism (Barabak 2001). With time, the passage of the USA Patriot Act (2001), and greater opportunity for public debate and public and private reflection, attitudes have changed but slightly since the figures taken in immediate wake of the shock of September 11th. In a poll taken by the New York Times/CBS News reported on December 11^th, 55% favored law enforcement monitoring of Internet discussions in chat rooms and other forums. 50% favored expanded government monitoring of cell phones and e-mail to intercept communications while 66% supported expanded camera surveillance on streets and public places and 70% favored the adoption of a national ID system for all U.S. citizens (Doubts on Military Tribunals).

Transparency

The defender of the faith, the staunch civil libertarian is, caught between a rock and a hard place – a difficult dilemma confronts the critic. How flexible, acquiescent, is one to be in the face of global forces which threaten internal order? Thomas L. Friedman succinctly articulated the dilemma in a recent New York Times “op-ed” piece:

“Americans are entering a highly problematic era, one that they are just beginning to get their minds around. They are becoming much more keenly aware of how freedom and order go together. For America to stay America, a free and open society, intimately connected to the world, the world has to become a much more ordered and controlled place. And order emerges in two ways: It is either grown from the bottom up, by societies slowly developing good democratic governance and shared ethics and values, or it is imposed from the top down, by non-democratic, authoritarian regimes” (Friedman 2001).

If “order and freedom” are to be amenable,” trust and faith” in the governing must accompany the first set of companions. The `problem is that a degree of transparency – the ability to check on the operations and functions of government – is becoming more and more difficult.

In May 2002, failures of the F.B.I. leading to September 11 were revealed, resulting in criticism and congressional hearings by the intelligence committee (Risen, 2002). In response, Attorney General John Ashcroft announced that he had “freed F.B.I. agents from restrictions on investigations” by amending guidelines that restricted F.B.I. agents from spying absent some information about a potential federal crime. The restrictions lifted had been adopted in response to political spying on antiwar and civil rights groups and other dissidents in the1960s through the 1980’s. According to Professor David Cole of the Georgetown University Law Center and an attorney with the Center for Constitutional Rights, even when the restrictions were in place, they were interpreted as allowing blanket monitoring including electronic surveillance, videotaping and round the clock stakeouts and tailing (Cole 2002). The new guidelines remove threshold requirements of information of a potential crime (Cole 2002). A further reaction to criticism led to the F.B.I. “quietly” (F.B.I. Changes Rules 2002) changing internal rules with regard to secret wiretaps to allow Director Robert Mueller to personally review requests by agents for secret wiretaps denied by F.B.I. lawyers giving agents in the field a new avenue of appeal if they believe terrorism investigations are being hampered by headquarters. All of this occurs outside the public institutions of the courts. This further demonstrates the erosion of the mechanisms of transparency.

The Patriot Act of 2001 puts into operation a system of surveillance that is almost invisible. How is the individual to check on a system that is so sophisticated that it difficult to observe? Implicit in the relationship between citizen and government, in a democratic society, is a history of a “social contract existing between the two. In the tradition of Hobbes, Locke, and Rousseau the connection of rights and responsibilities exists between individual and the governing. Government has the legal and moral right to exercise power over the citizen and the citizen has inalienable rights that cannot be denied. But this special relationship must be based upon verifiable and justifiable action operating within the discourse of the public sector, involving the functioning of a responsible free press, and open legislative process, and in the presence of a system that allows for the relationship between the governed and the governing to prosper and maintain itself.

An American Civil Liberties Union press release on December 14, 2001 (Nojeim 2001) characterized the relationship this way:

As The United States is a country in a constant state of evolution - in a constant state of experimentation on how best to ensure the greatest individual freedom to each person within its borders. American history teaches important lessons - foremost of which is the idea that a government of the people and by the people must be visible to the people. In other words, American democracy is a political system based on the ideas of transparency and accountability. Our government must open itself to the public spotlight so the American people can judge the effectiveness of heir elected representatives and the propriety of their actions.

The tradition of that essential relationship has both a philosophic and technological basis. It requires a relatively open system in the sense that the process of observation and government accountability is visible and accessible. September 11th places the focus and responsibility upon a technological surveillance system that confirms the primacy of a technological presence which is anchored in the closed gathering of data and which shifts the control to the government alone.

There is a difference between the surreptitious or covert and the undetectable actions of government. Even in the best of times, few call for the end of covert observations in the name of intelligence gathering for national security but while transparency may not be pragmatically possible, invisible, untraceable, unrevealed surveillance of citizens is a different matter. Ultimate accountability to judicial oversight, eventual notice, minimization requirements, stem from different assumptions about the relationship, the social contract, between the government and the governed. Technology changes the ways and means of surveillance making more action, interaction and data potentially observable in more imperceptible ways. Technology has enhanced surveillance and may be used as tools to counter those intrusions and actually protect privacy in an ever-escalating game of checks and balances of technology based on a trust in technology rather than a trust in each other.

A Little Net Privacy Please (1998, March 16). Business Week. http://www.businessweek.com/1998/11/b3569104.htm

Barabak, M.Z. (2001, Sept. 16). U.S. Keen to Avenge Attacks. Los Angeles Times. http://www.latimes.com/news/custom/timespoll/la-091601terrorpoll.story?coll=la%2Dnews%2Dtimes%5Fpoll

Boal, M. (1998, Sept. 30-Oct. 6). The Surveillance Society: Parts One, Two and Three. The Village Voice, http://www.villagevoice.com/features/9840/boal.shtml/.

Carnivore (2001, Nov. 20). http://www.F.B.I..gov/programs/carnivore/carnivore.html.

Carter, S. 1998. Civility. Basic Books: New York.

Center for Democracy and Technology (2001). http://www.cdt.org/legislation/107th/privacy/).

CDT’s 1997 Privacy Poll Results http://www.cdt.org/privacy/survey/findings/results.shtml

Center for Democracy and Technology, (1997). www.cdt.org.

Civil Liberty (1996). http://civilliberty.about.com/gi/dynamic/offsite.htm?site=thm?site=http//law.indiana.ed/u/ili/v72n04/rehnquis.html.

Civil Libertarians Hash Out Post-September 11 Concerns. (2001, Nov. 29). National Press Club. http://www.rcfp.org/news/2001/1129twoday.html.

Cole, D. (2002, June 4). Misdirected Snooping Doesn’t Stop Terror. The New York Times, p. A 19.

DOJ Proposes Further Expansion Changes to Intelligence Authorization Would Again Increase FISA Eavesdropping (2001, Nov. 30). http://www.cdt.org/security/011130cdt.shtml.

Decew, J. W. 1997. In Pursuit of Privacy: Law, Ethics, and the Rise of Technology. Cornell University Press: New York.

Poll: Doubts On Military Tribunals (2001, Dec. 11). CBS/New York Times Poll. http://www.cbsnews.com/now/story/0,1597,320935-412,00.shtml

Etzioni, A. 2000. The Limits of Privacy. Basic Books: New York.

F.B.I. Changes Rules on Secret Wiretaps. (2002, June 3). The New York Times, www.nytimes.com/aponlinline/national/AP-F.B.I.-Terror-Warrants.html?pagewanted=prin.

Friedman, T. L. (2001, Dec. 27). On Freedom, Order and Flying Naked, International Herald Tribune, 7.

Gumpert, G. & Drucker, S. 2002, Public Boundaries: Privacy and Surveillance in a Technological World, Communication Quarterly, in press.

Gumpert, G. & Drucker, S. 1998. The Demise of Privacy in a Private World: From Front Porches to Chatrooms, Communication Theory, November 1998, pp. 408-425.

Halbfinger, D.M. (1998, Feb. 22). As Surveillance cameras peer, some wonder if they also pry. The New York Times, pp. A1 & 32.

Langer, G.(2001, Sept. 15). Standing United: American Public Closes Ranks Behind Bush & Anti-Terror Measures, http://abcnews.go.com/sections/us/DailyNews/wtc_poll010914.html.

Lewis, P.H. (1998, March 19). Forget Big brother. New York Times, p.. G1.

Lyon, D. 2001. Surveillance Society: Monitoring Everyday Life. Open University Press: Philadelphia.

McCullagh, D. (2001, Feb. 2). Call it Super Bowl Face Scan I, Wired http://www.wired.com/news/politics/0,1283,41571,00.html

McCullagh, D. (2001, Oct. 26, a), Terror Act Has Lasting Effects, Wired. http://www.wired.com/news/privacy/0,1848,47901,00.html.

McGuire,D. (2002, Jan. 4). Newsbytes, Washington Post.com.

New York City Surveillance Camera Project, NYCLU, mediaeater.com/cameras/breakdown/html, April 3, 1999.

Nojeim, G.T. (2001, Dec. 14). Threats to Civil Liberties Post-September 11:
Secrecy, Erosion of Privacy, Danger of Unchecked Government. Press Release. http://www.aclu.org/news/2001/n121401b.html.

O’Harrow, R. (2001, Nov. 1). In the Face of terror: Face Recognition Technology Spreads Quickly, Washington Post. p. E-01

Olsen, S.and Lemos, R. (2001, Nov.1). Can Face recognition Keep airports safe? Cnet news.com.

Poll: Strong Support for War Effort, (2001, Sept. 24). CBS News/New York Times Poll, http://www.cbsnews.com/now/story/0,1597,312316-412,00.shtml.

Putnam, R.D. 2000. Bowling Alone: The Collapse and Revival of American Community. New York: Simon and Schuster.

Risen, J. (2002, June 4). Rifts Plentiful as 9/11 Inquiry Begins Today, The New York Times, pp. A1 & A 14.

Rosen, J. 2000. The Unwanted Gaze : The Destruction of Privacy in America.

New York: Random House.

Rosen, J. (2001, Oct.7). A Watchful State. The New York Times Magazine. 38-43, 85,92.

Sennett, R. 1977. The Fall of Public Man. New York: Alfred A. Knopf.

Sykes, C. 1999,The End of Privacy, New York: St. Martin’s Press.

The Johns Hopkins Civility Project, 1999. http://www.jhu.edu/news_info/news/home98/mar98/civ_list.html

The Oxford Universal Dictionary (955). London: Oxford University Press

USA Patriot Act, of 2001, Public Law No. 107-56.

Wartimeliberty.com (2001, Oct. 11).

Weekly Compilation of Presidential Documents, Week Ending Friday, October 26, 2001. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_presidential_documents&docid=pd29oc01_txt-26

Westin, A. 1998. The Era of Consensual Marketing is Coming. http://www.pandab.org/1298essay.html

Whitaker, R. 2000. The End of Privacy: How Total Surveillance is Becoming A Reality. New Press:. New York.

Zuckerman, M.J. (2001, Nov. 30). Chances are, somebody’s watching you. USA Today, http://www.usatoday.com/life/cyber/tech/cti856.htm