Government Surveillance Puts Privacy at Risk, Professor Christopher Slobogin Writes in New Book
Acts of surveillance by the United States government, from the increasing use of closed-circuit televisions and global positioning systems to a wide array of sophisticated technologies that can access records about our activities, represent an insidious assault on the freedom of Americans that the law has failed to respond to, according to a new book from University of Florida Levin College of Law Professor Christopher Slobogin. In his book, Privacy at Risk: The New Government Surveillance and the Fourth Amendment(University of Chicago Press), Slobogin writes, “The assault comes from government monitoring of our communications, actions, and transactions. The failure results from the inability or unwillingness of courts and legislatures to recognize how pervasive and routine this government surveillance has become.”
To ensure that the government’s use of this powerful tool is not abused, Slobogin argues, something equally powerful—the Constitution, and in particular the Fourth Amendment to the Constitution—must stand guard. While much has been written in recent years about electronic surveillance, Slobogin’s book focuses on significant new developments in the government’s use of technology, developments designed to observe our daily activities through physical surveillance and to peruse records of those activities through transactional surveillance.
While some of these technologically enhanced investigative techniques have been around for years, most are recent in origin, and their use by law enforcement officials has increased dramatically in the years following the terrorist attacks of September 11, 2001.
Since 9/11, the Bush Administration has pushed very aggressively in two different areas—camera surveillance and data mining. The government has provided millions of dollars to cities and municipalities for the purpose of setting up sophisticated camera systems, which allow the police to zoom in on street activity at night as well as during the day. Significant resources have also been poured into establishing data mining programs, where dozens of government agencies have used the power of the computer and the ability to access records through the internet and through commercial data brokers to obtain personal information about American citizens as well as foreigners.
“The Supreme Court of the United States and the court system generally are not involved in overseeing this new surveillance, not so much because of a power grab by the executive branch, but because the courts themselves have taken the judiciary out of the game,” Slobogin says. “The Supreme Court has held that, in essence, we don’t have privacy in public, so the cameras that watch what we do in the streets aren’t governed by the Constitution and not subject to judicial monitoring. It has also held that any information that we give to third parties such as banks or schools or businesses or even doctors is no longer protected by the Fourth Amendment or the courts; the Court says that we’ve essentially waved our Fourth Amendment protection when we decided to give information to a third party. So in both of those areas the Constitution is pretty much a dead letter.”
Today there are over 200 government data mining programs in operation, over 120 of which gather some type of personal information that can be connected to a particular individual, Slobogin says. These data mining programs, he explains, gather huge amounts of information about people, trolling through financial records, travel records, and medical records, all with the goal of identifying patterns of behavior that might reveal terrorist or criminal activity.
“Privacy concerns seem to be very secondary to the government when it’s engaging in these kinds of surveillance programs,” Slobogin says. “While Congress or the executive branch has ended some efforts, there always seem to be new programs that crop up to take the place of the previous program. So until the government runs out of money I think we’re going to continue to see these data mining endeavors, even though they tend to be very ineffective, and even though they can potentially gather huge amounts of personal information about people.”
Slobogin was interviewed recently about the book for HarperOnline and a National Public Radio call-in show. As a result of his work in the area he has consulted with the Department of Homeland Security about camera surveillance and was asked to serve on an ABA Task Force established to devise rules governing transaction surveillance.
In his book, Slobogin argues that the decisions that have led us to this point need to be reversed or reinterpreted to permit much more significant regulation of both physical and transactional surveillance. “This book is meant to prod legislatures and courts into more meaningful constraints on physical and transaction surveillance,” Slobogin says. “While these types of surveillance may be different from both classic searches and from communications surveillance in some senses, in their current minimally regulated state they do real harm to individual interests and ultimately to society and government itself. That state of affairs must change.”