by Anthony W. Accurso
Americans are being subjected to a rapid proliferation of surveillance in every area of their lives, jeopardizing their privacy interests and rights under the Fourth Amendment of the U.S. Constitution. Law enforcement agencies at all levels are increasing the amount and types of spying as new technologies enable them to do so. Even where police are limited by law, they may circumvent such restrictions by purchasing data from corporations that also collect voluminous amounts of Americans’ personal data.
The Electronic Frontier Foundation (“EFF”) has published an informative list of the types of surveillance frequently conducted by various agencies, as well as suggesting how at least some of these modes may be mitigated. This mitigation is essential when omnipresent surveillance constitutes an all-out assault on constitutional protections and privacy.
Cameras are everywhere, even orbiting miles above us. The U.S. has been launching satellites into orbit since the 1950s. At any time, there are roughly 5,000 satellites in orbit, and a good portion of them can take high-resolution photos of ground-level targets. Thankfully, the technology is not advanced enough to allow for facial recognition software to identify people from space or for automated license-plate reading software to target specific vehicles. Also, due to their cost, satellites are generally reserved for surveilling military or transnational threats.
Ground-level cameras are the more immediate threat, and these come in many forms. From networked CCTV cameras on street corners to cameras on drones, and from doorbell cameras to cell-phone cameras, all these types of cameras take photos and videos of us as we go about our daily lives. Much of this footage is being archived and reviewed by AI-powered software meant to identify “threats”—a fluid category ranging from violent crime to protesters and, at least in Texas, abortion providers.
Communities have allowed police to install or distribute cameras in neighborhoods, business districts, or anywhere else people gather in groups, and the promise is that these will deter, or help solve, crimes. Yet there is no definitive proof that cameras deter crime or that the trade-off between ubiquitous camera-based surveillance and privacy interests has yielded a net benefit.
What is known is that facial recognition technology (“FRT”) is still wildly inaccurate, yet many law enforcement agencies nationwide use it to identify suspects, often resulting in harassment of innocent, often minority, citizens. Over a dozen cities across America have banned the use of FRT.
Automated license-plate readers sound innocuous enough, but these devices can be networked to develop databases of driving habits, tracking people’s private tasks like visits to doctors or protests. Police also develop “hot lists” of vehicles deemed “suspicious” and use these to harass drivers without probable cause of any wrongdoing.
Drones with cameras are not new, but the way police have been using them is. Drone software now allows police to identify a “target” and have the drone intelligently follow that person or vehicle for miles. They can survey crowds, like protests, and collect biometric data. Drones are especially dangerous as a surveillance platform because they are expandable and often get deployed for uses not originally contemplated or authorized at purchase time, such as when Customs and Border Patrol obtained sophisticated drones for border defense that were later used to monitor protests against police violence in 15 cities not located on the border.
Similar to cameras in big cities are sophisticated audio sensors marketed as acoustic gunshot detectors. Multiple sensors can be used in tandem to allegedly pinpoint the sound of gunfire and dispatch officers to the scene. However, several high-profile false reports sent officers ready for conflict into areas with peaceful pedestrians, leading to tense confrontations. Other cases have involved criminal prosecutions featuring audio evidence of street corner conversations recorded by these sensors.
The area where Americans are subject to the most surveillance is in our participation on the Internet. Cell companies collect “usage data,” as well as track calls, texts, and web traffic. It is well documented that governments around the world require network providers to allow them to monitor and record the content of unencrypted network traffic such as web-browsing, email, and chats.
Yet even encrypted content may be turned over to law enforcement where a corporation is involved. Law enforcement famously identified an arsonist by requesting from Google all the IP addresses of persons who searched for the victim’s address in Google Maps. Critics argue that such disclosure should be prohibited the same way that the phone records is prohibited for use by law enforcement without a warrant.
Cell phones are our link to the world, but they are also a big part of the surveillance network. Apps will sell your data to anyone, and in one notorious case, the Department of Defense purchased sensitive user data from a broker that obtained its information from a Muslim prayer app with over 100 million downloads.
Cell-phone towers are operated by communications companies that collect, and furnish to law enforcement upon request, information from cell phones on a constant basis. Sometimes, police even use cell-site simulators to trick cell phones into identifying themselves, so a person can be tracked to within feet of their physical location.
Social media websites are where we post (often) intimate details about our lives and “connect” with others, yet all of this information is available to police. Either by AI aggregators that bulk-collect data, “undercover” infiltration of groups on Facebook or Twitter, or merely by handing info over to agents, police gather a mountain of information about us from what we willingly discuss in “public” forums.
This infrastructure of surveillance will continue to grow unchecked until its tentacles strangle all notions of privacy or freedom of speech—that is, unless citizens take individual and collective actions to stifle its growth.
Users must prefer encrypted technologies wherever possible to communicate with others and refuse to use systems that collect and store data for purposes of facilitating law enforcement access, such as Ring doorbell cameras.
To quote the U.S. Supreme Court in Mincey v. Arizona, 437 U.S. 385 (1978), the “mere fact that law enforcement may be made more efficient can never by itself justify disregard of the [U.S. Constitution].”
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