A Government of Wolves: The Emerging American Police State

by Whitehead, John W.

  Ginsburg rightly recognized the dangers of such a vast, uninhibited use of GPS technology: "A person who knows all of another's travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups–and not just one such fact about a person, but all such facts."305

  Stingray Surveillance Device Used to Track Mobile

  Phone Calls (US Patent and Trademark Office)

  By the time U.S. V. Jones reached the Phone Calls (US Patent and Trademark Office) "Q g Supreme Court it had generated heated debate regarding where to draw the line when it comes to the collision of privacy, technology, constitutional rights and government surveillance. The arguments on both sides were far-ranging, with law enforcement agencies on one side defending warrantless searches and civil liberties advocates on the other insisting that if police can stick a GPS on a car, why not on a piece of clothing, or everyone's license plate?

  Yet while a unanimous Supreme Court sided with Jones, declaring that the government's physical attachment of a GPS device to Antoine Jones' vehicle for the purpose of tracking Jones' movements306 constitutes an unlawful search under the Fourth Amendment, the ruling failed to delineate the boundaries of permissible government surveillance within the context of rapidly evolving technologies.307 Nor did it curb the government's ceaseless, suspicionless technological surveillance of innocent Americans. As Supreme Court Justice Samuel Alito recognized in his concurring judgment,308 physical intrusion is now unnecessary to many forms of invasive surveillance. As we have seen, the government's current arsenal of surveillance technologies includes a multitude of devices which enable its agents to comprehensively monitor an individual's private life without necessarily introducing the type of physical intrusion into his person or property covered by the Court's ruling.

  Your Cell Phone Tracks Your Every Move

  Cell phones are a perfect example of how the government can track your every move without physically attaching a tracking device to your person or property. Unfortunately the courts have provided little in the way of protection against such intrusions.309 For example, an August 2012 ruling by the Sixth Circuit Court of Appeals declared that police can track the location of a cell phone without a warrant.310

  In fact, using "stingray" devices, often housed in mobile surveillance vans, federal agents can not only target all cell phone signals, they can also track your every move by tapping into the data transferred from, received by, and stored in your cell phone. (Incredibly, one agent can track 200 or 300 people at a time.311) Your texts, web browsing, and geographic location are also up for grabs.312

  Tens of thousands of cell tracking orders are issued every year, allowing police agencies to accurately pinpoint people's locations within a few yards. Unless they're charged with a crime, most people remain unaware that their cell data has been tracked.313 In July 2012 it was revealed that cell phone carriers had responded to an astonishing 1.3 million requests from police agencies for personal information taken from people's cell phones. Sprint receives an average of 1,500 such requests per day314 A relatively small carrier, C Spire Wireless, received 12,500 requests in 2011 alone.315 Keep in mind that a single request often involves targeting multiple people.316 Even small police departments–at least, those willing to shell out upwards of $244,000 to get the technology necessary to track cell phones–are engaging in cell phone tracking with little to no oversight.317

  In this way, Americans have been sold to the highest corporate bidder. This is nothing less than the corporate police state at work, with cell phone companies as willing accomplices in the government's efforts to track individuals using their cell phones. Cell phone companies actually make a handsome profit from selling the details of your private life to the government (AT&T collected $8.3 million in 2011 for their surveillance activities).318

  Helping the government spy on Americans using their cell phones has become so profitable for cell phone carriers that they've come up with price lists for easy reference for police agencies. "Surveillance fees"–that is, your tax dollars at work–for sharing information on a person's location and activities can range from a few hundred to a few thousand dollars per request.319 For example, Sprint, which has more than 100 employees dedicated to handling information requests from the government, "charged $120 per target number for 'Pictures and Video,' $60 for 'E-Mail $60 for Voicemaii; and $30 for 'SMS Content."'320

  On the rare occasion that a telecom corporation resists efforts by the police to spy on a particular cell phone customer, there are methods by which companies are coerced to comply with the data requests. Telecoms are frequently harassed by the FBI with National Security Letters, which are demands for user information without warrant or judicial oversight. These include a gag order, which prevents the recipient from discussing the demand with others, including the media. Roughly 300,000 of these NSLs have been sent out since 2000.321

  "It's Not Even Past"

  Unfortunately with telecommunications companies storing user data, including text messages and Internet browsing history, for months to years at a time,322 it will not be long before William Faulkner's observation that "The past is never dead. It's not even past"323 becomes the truism of our age. Already, British researchers have created an algorithm that accurately predicts someone's future whereabouts at a certain time based upon where she and her friends have been in the past.324

  Soon there really will be no place to escape from the government's electronic concentration camp. As journalist Pratap Chatterjee has noted, "[T]hese tools have the potential to make computer cables as dangerous as police batons."325 With intelligence gathering and surveillance becoming booming business ventures, and with corporations rolling out technologies capable of filtering through vast reams of user data, tapping into underseas communication cables, and blocking websites for entire countries, privacy as we have known it will be extinct.

  It must be noted that there is both an intrinsic and instrumental value to privacy. Intrinsically, privacy is precious to the extent that it is a component of liberty. Part of citizenship in a free society is the expectation that one's personal affairs and physical person are inviolable so long as one remains within the law. A robust conception of freedom includes the freedom from constant and intrusive government surveillance of one's life. From this perspective, Fourth Amendment violations are objectionable for the simple fact that the government is doing something it has no license to do–that is, invading the privacy of a law-abiding citizen by monitoring her daily activities and laying hands on her person without any evidence of wrongdoing.

  Privacy is also instrumental in nature. This aspect of the right highlights the pernicious effects, rather than the inherent illegitimacy, of intrusive, suspicionless surveillance. For example, encroachments on individual privacy undermine democratic institutions by chilling free speech.326 When citizens–especially those espousing unpopular viewpoints–are aware that the intimate details of their personal lives are pervasively monitored by government, or even that they could be singled out for discriminatory treatment by government officials as a result of their First Amendment expressive activities, they are less likely to freely express their dissident views.

  No Place to Hide

  So where does this leave us?

  One of the hallmarks of citizenship in a free society is the expectation that one's personal affairs and physical person are inviolable so long as one conforms his or her conduct to the law. In other words, we should not have to worry about constant and covert government surveillance–whether or not that intrusion is physical or tangible and whether it occurs in public or private.

  Unfortunately, in modern society, there really is no place to hide. Caught within the matrix of the American Oceania, we have arrived at a new paradigm where the concept of private property is eroding and along with it, the right against unreasonable searches and seizures once protected by the Four
th Amendment. In such a climate, everyone is a suspect. And you're guilty until you can prove yourself innocent.

  Worse yet, those in control are using life's little conveniences, such as GPS devices and cell phones, to do much of the spying. And worst of all, the corporations who produce these little conveniences are happy to hand your personal information over to the police so long as their profit margins increase. To put it simply, the corporate-surveillance state is in full effect.

  As Judge Kozinski concludes:

  You can preserve your anonymity from prying eyes, even in public, by traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed. But there's no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention. Nor is there respite from the dense network of cell towers that honeycomb the inhabited United States. Acting together these two technologies alone can provide law enforcement with a swift, efficient, silent, invisible and cheap way of tracking the movements of virtually anyone and everyone they choose. Most targets won't know they need to disguise their movements or turn off their cell phones because they'll have no reason to suspect that Big Brother is watching them.327

  CHAPTER 15

  The Watchers and the Watched

  "There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live –did live, from habit that became instinct–in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized."328–GEORGE ORWELL, 1984

  As George Orwell warned, you have to live with the assumption that everything you do, say and see is being tracked by those who run the corporate surveillance state. That has also become the assumption under which we, too, must live given that advanced technology provided by the corporate state now enables government agents and police officers with the ability to track our every move. The surveillance state is our new society. It is here, and it is spying on you, your family, and your friends every day.

  The government has inexhaustible resources when it comes to tracking our movements, from electronic wiretapping devices, traffic cameras, and biometrics to radio-frequency identification cards and satellites. Speech recognition technology now makes it possible for the government to carry out massive eavesdropping by way of sophisticated computer systems. Phone calls can be monitored, the audio converted to text files and stored in computer databases indefinitely. And if any "threatening" words are detected–no matter how inane or silly–the record can be flagged and assigned to a government agent for further investigation. In recent years, federal and state governments, as well as private corporations, have been amassing tools aimed at allowing them to monitor content. Users are profiled and tracked in order to identify, target, and even prosecute them.

  The resulting loss of privacy highlights very dramatically the growing problem of the large governmental bureaucracy working in tandem with the megacorporations to keep tabs on the American citizenry. As such, what we are witnessing, in the so-called name of security and efficiency, is the creation of a new class system comprised of the watched (average Americans such as you and me) and the watchers (government bureaucrats, law enforcement agents, technicians, and private corporations). The growing need for technicians necessitates the bureaucracy. Thus, the massive bureaucracies—now technologically advanced—that administer governmental policy are a permanent form of government. Presidents come and go, but the nonelected bureaucrats remain.

  Security-Industrial Matrix

  The increasingly complex security demands of the massive federal governmental bureaucracy, especially in the areas of defense, surveillance, and data management, have been met within the corporate sector, which has shown itself to be a powerful ally that both depends on and feeds the growth of governmental bureaucracy. For example, USA Today reports that five years after the 9/11 terrorist attacks, the homeland security "business" was booming to such an extent that it eclipsed mature enterprises like moviemaking and the music industry in annual revenue.329 This security spending by the government to private corporations is forecast to exceed $1 trillion in the near future.

  Surveillance State Watchers (FBI Gallery)

  Money, power, control. There is no shortage of motives fueling the convergence of megacorporations and government. But who is paying the price? The American people, of course, and it's taking a toll on more than our pocketbooks. "You have government on a holy mission to ramp up information gathering and you have an information technology industry desperate for new markets," says Peter Swire, the nation's first privacy counselor, who served during the Clinton Administration. "Once this is done, you will have unprecedented snooping abilities. What will happen to our private lives if we're under constant surveillance?"330

  We're at that point now. Americans are subtly being conditioned to accept routine incursions on their privacy rights. However, at one time, the idea of a total surveillance state tracking one's every move would have been abhorrent to most Americans. That all changed with the 9/11 attacks. As professor Jeffrey Rosen observes, "Before Sept. 11, the idea that Americans would voluntarily agree to live their lives under the gaze of a network of biometrie surveillance cameras, peering at them in government buildings, shopping malls, subways and stadiums, would have seemed unthinkable, a dystopian fantasy of a society that had surrendered privacy and anonymity."331

  We have been sold a bill of goods. A good example of this is the ubiquitous surveillance cameras that are popping up everywhere across the country, despite the fact that they have been shown not to reduce crime. Indeed, a 2005 study by the British government, which boasts the most extensive surveillance camera coverage in the world at approximately 4 million cameras (one for every 14 people), found that of all the areas studied, surveillance cameras generally failed to achieve a reduction in crime. Indeed, while these snooping devices were supposed to reduce premeditated or planned crimes such as burglary, vehicle crime, criminal damage, and theft, they failed to have an impact on more spontaneous crimes, such as violence against the person and public order offenses such as public drunkenness.

  Surveillance cameras have also been found to have a "displacement" effect on crime. Thus, rather than getting rid of crime, surveillance cameras force criminal activity to move from the area being watched to other surrounding areas.332 And while a surveillance camera might help law enforcement identify a suicide bomber after the fact, as Marc Rotenberg of the Electronic Privacy Information Center notes, "Cameras are not an effective way to stop a person that is prepared to commit that kind of act." Rotenberg points to the 2005 terrorist subway bombings in London as an example. He explained that surveillance cameras "did help determine the identity of the suicide bombers and aided the police in subsequent investigations, but obviously they had no deterrent effect in preventing the act, because suicide bombers are not particularly concerned about being caught in the act."333

  Electronic Footprints

  Wherever you go and whatever you do, you are now being watched– especially if you leave behind an electronic footprint. And, of course, we leave plenty of electronic footprints for the watchers to follow.

  When you buy food at the supermarket, purchase a shirt online or through a toll-free number, these transactions are recorded by data collection and information companies. In this way, you are specifically targeted as a particular type of consumer by private corporations. As if that were not worrisome enough, government intelligence agencies routinely collect these records–billions of them–about what you have done and where you have lived your entire life: every house or apartment, all your telephone numbers, the cars you've owned, ad infinitum.

/>   When you use your cell phone you leave a record of when the call was placed, who you called, how long it lasted, and even where you were at the time. When you use your ATM card you leave a record of where and when you used the card. There is even a video camera at most locations. When you drive a car enabled with GPS you are tracked by satellite. And all of this once-private information about your consumer habits, your whereabouts, and your activities is now being fed to the U.S. government intelligence agencies.

  Under the USA Patriot Act your bank is required to analyze your transactions for any patterns that raise suspicion and to see if you are connected to any "objectionable" people–ostensibly in the hunt for terrorists. If there are questions, your bank alerts the government, which shares such information with intelligence and law enforcement agencies across the country (local, county, state, and federal).

  Fusion Centers

  As if it weren't bad enough that the government is tracking individuals electronically, we're also being subjected to the peering, watchful eyes of Terrorism Liaison Officers (TLOs). TLOs are firefighters, police officers, and even corporate employees that are sprinkled across the country and have received training to spy on their fellow citizens and report back to government entities on their day-to-day activities. They are entrusted to report "suspicious activity," which includes taking pictures with no apparent aesthetic value, making measurements and drawings, taking notes, conversing in code, espousing radical beliefs, and buying items in bulk.334