Reactions to the news this week that the National Security Agency has been secretly collecting phone and online data on millions of Americans have featured a mix of anxiety and outrage over the scary Big Brother tactics used in this "astounding" new scandal.
A smaller subset of commentators have pointed out that, in fact, the revelations of "massive spying" haven't really told us anything new. In 2007, after the warrantless wiretapping program came to light (but before it was essentially legalized by Congress), the U.S. had already fallen to 41 out of 50 in Privacy International's rankings to join Russia, China, and our ally the United Kingdom in the category of "endemic surveillance societies."
What, exactly, did folks think "warrantless wiretapping" was, if not the government snooping in millions of Americans' phone records? Or maybe we just forgot about it.
At any rate, the real sea change has already taken place: The government has gone from investigating crimes after the fact to predicting who is going to commit them in the future, as if we're entering the world of the sci-fi film Minority Report.
Perhaps the real scandal is how unaware most Americans are of the widespread, everyday surveillance that has already been made public - or, for those who do know, how few have done anything material to object to it.
In case you've lost track of all of the ways your false sense of privacy is not actually justified, here's a handy list of 5 ways the government keeps tabs on us:
They monitor your social media.
We all know that much of what we post online is "public" and can be used against us by employers, exes, and prying family members. What you might not know is that the government uses screening software to review the contents of your public online activity for red flags.
In early 2012, the Department of Homeland Security was forced to reveal in a lawsuit filed by EPIC, the Electronic Privacy Information Center, that the agency had been monitoring social networking sites such as Facebook and Twitter by searching for "key words" for at least a year and a half. DHS tracks postings in public forums ranging from WikiLeaks to YouTube (including The Huffington Post) for the stated purpose of detecting potential terrorist threats and national security concerns, as well as natural disasters, major accidents or other public emergencies. According to EPIC, key words include such relatively common terms as "cops," "police," "airport," "hacktivist," and "zombie." (The 2011 full list is available here starting on page 20.)
In case you're wondering what DHS uses this information for, last year two British tourists were denied entry into the U.S. after they joked about destroying America and digging up Marilyn Monroe. They were handcuffed and held under armed guard while their luggage was searched for shovels (yes, really) before being sent home.
They are compiling your digital communications and your various government records and into massive searchable databases.
As of last December, the National Counter-Terrorism Center has had the authority to keep files on you and other ordinary citizens and examine them for possible criminal behavior, even if there is no reason to suspect you. They can store the information for five years, or longer if they think it points to terrorist activity. Government records that can be mined for incriminating information include flight records, financial forms, lists of hosts of foreign exchange students, veterans' records, and many more.
Meanwhile, as reported in Wired last March, the NSA has been building a vast $2 billion facility in the Utah desert, which should be up and running by this September, to store your communications. As we've known since "warrantless wiretapping" became legalized in 2008, the government can scan phone and email records for target addresses, locations, phone numbers, names, keywords, and phrases. Communications that match the targeted content are automatically recorded - and once you're on the watchlist, all of your future communications are recorded. Not only Verizon, but also AT&T, have been alleged to participate in the program.
The information the government is able to collect includes not only entire emails and cell phone calls, but also browsing histories, receipts, and itineraries. In other words, in case you didn't already know this, everything you do online or over your cell phone is actually being screened as you do it. Government documents released to the ACLU last October after months of litigation show that telephone, email and social media surveillance of citizens is up 60 percent since 2009.
They don't need a warrant to track your location from your cell phone.
As The New York Times reported last year, some police departments voluntarily require a warrant to get information from wireless carriers - but others don't, and there is no legal reason that they have to. In January 2012, the Supreme Court held that attaching a GPS tracking device to a car requires a warrant, but the ruling was vague about cases not involving a "physical trespass" on the suspect's property (e.g. the installation of the tracking device). The Court said only that purely electronic surveillance "may" violate the 4th Amendment's privacy protections.
So, how far can the authorities go without a warrant? They can't listen to your calls, but they can contact your cell phone company and get the location of your phone for a few hundred dollars. Some police departments use records to identify all of the callers using a particular cell phone tower. According to the Times article, others have even purchased their own cell phone surveillance equipment. There is no settled legal limit for the collection of location data, so police departments are left to set their own internal constraints (or not).
They are free to take photos or video from the air above your house, and drones are coming to airspace near you in 2015.
In 1989, the Supreme Court decided in Florida v. Riley - a case where investigators spotted a marijuana growing operation from a helicopter flying 400 feet above the ground - that police don't need a warrant to observe your property from public airspace. That ruling will soon take on a new significance because the Federal Aviation Administration expects that 25,000 Unmanned Aerial Vehicles, or "drones," will be operating in national air space around the country in the next 10 years (starting in 2015). The Department of Defense already has over 7,000 of them, and they are predicted to be in high demand among police departments due to their low-cost, high-yield aerial surveillance capabilities.
Current limits require drones to be operated within the line of sight of the user and below 400 feet, but the FAA is likely to revisit those guidelines under pressure from businesses and law enforcement as it paves the way toward integrated civilian use of drones in the national airspace. The FAA may be reluctant to regulate based upon privacy considerations given that its main responsibility is safety. There is by no means a universally accepted definition of public airspace, either; a 1946 Supreme Court ruling held that planes flying less than 100 feet above a farm (leading the chickens to fly suicidally into walls in their panic) were not trespassing.
One interesting aspect of the 4th Amendment is that it turns on "reasonable expectations of privacy." In Riley (the helicopter-marijuana case), a majority of the Court noted that their decision hinged on the frequency of civilian flights over others' property. In other words, the more drones there are in the sky, the lower our reasonable expectations of privacy from aerial surveillance. So not only will the 4th Amendment not keep drones from hovering high above your yard, but the very act of drones hovering over your yard weakens your 4th Amendment protections. How's that for irony?
They are developing new video surveillance technology that puts the old wall-mounted cameras to shame.
The Department of Homeland Security is working on a new video surveillance system that puts the "pan" in panopticon. The Imaging System for Immersive Surveillance (or ISIS) provides 360-degree, high-resolution, real-time and storable video imaging. A single spherical camera array no bigger than a basketball hanging from a ceiling can survey an entire airport terminal with enough detail to track someone with face-recognition software, or if mounted on a drone, can record individual vehicles' movements within a small town.
To break this down a bit: This camera is recording everything around it. It isn't sweeping from one side to the other every few seconds. It is recording in all directions simultaneously. It can store the recordings for a day or more. In both real time and stored footage, a viewer can zoom in at least 100 times; view things happening in any or all different directions at once; and use software to identify individuals or vehicles and track them through the time and space captured on the video.
Clearly, most or all of these new technologies can be helpful. Unmanned aerial vehicles may help fight forest fires, assist in search and rescue missions, and perform scientific research. Impressive video surveillance can help soldiers to defend military bases, keep dangerous chemicals secure, and perhaps even find missing persons. And of course, we all want to prevent future terrorist attacks.
Just remember, next time you're buying a book at the airport, speeding on the highway, posting a Tweet, sending a text message, or reading an article like this one online: They're always watching - and we're the ones who decided we could live with that.