Fears of privacy intrusion today are compounded by the advent of new technologies. Private data can be gathered, stored, and analyzed with increasing ease. As surveillance technologies progress so have privacy concerns. But modern concerns with the ease of government data gathering using surveillance technologies are not novel. Judicial oversight has kept a formidable eye on this trend.
Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet...The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.
If the late Justice Brandeis knew today’s means of catching what is “whispered in the closet” he would turn over in his grave. His words are prophetic. His dissent in Olmstead quoted above was in response to a conviction that used wiretap evidence to produce 775 pages of private conversations in typewritten transcripts for trial. The defendants were convicted of conspiracy to violate the National Prohibition Act of 1919 by unlawfully possessing, transporting and importing intoxicating liquors. The crime was expansive. Seventy two others were indicted in the conspiracy. Annual sales of the illegal liquor were estimated to be $2,000,000. But did the intelligence means justify the conspiracy conviction ends? Justice Brandeis obviously didn’t think so.
To the extent that technology advancements in 1928 created fear of privacy invasions, today’s technological capabilities are unfathomable. As predicted succinctly by Justice Brandeis, today’s technology advancements provide a means of peering into unexpressed beliefs, thoughts and emotions, all for unclear ends (e.g. “national security”, “War on Terror”, “security threat”).
The Government’s data gathering and analysis methodology can be quite unorthodox. A simple contrast is exemplary. Generally, analysts attempt to predict future events as do financial analysts on Wall Street, by gathering large amounts of data and using historical models to forecast results. However, Wall Street forecasts end where private enterprise and undisclosed financial data begin. Unlike such analysts, government surveillance analysts may begin their research where ostensibly private conduct and undisclosed data begins.
Our post-9/11 society perceives the trade-offs between civil liberties and crime control in a new light. But the precise extent to which the government uses surveillance technology is unclear; thus the trade-offs cannot be assessed properly. State and private entities often make concerted surveillance efforts blurring the line between public and private conduct. These identities are often undisclosed and their apparent surveillance purposes remain ambiguous. Additionally, federal and state laws dictate boundaries for permissible government conduct. However, without knowing who and for what purposes surveillance is occurring, oversight becomes impractical. Oversight is particularly impractical when the mechanisms to proscribe conduct, namely legislative, are inept to parallel the dynamic pace of technology.
The introduction above provides context for further discussions of government sponsored surveillance technologies and their domestic use. This paper discusses these issues and considers the legal and policy questions that remain unanswered. The following section provides an overview of the latest and most popular surveillance technologies available to the public, followed by the Government’s use of surveillance technologies led by agencies such as the CIA and DARPA. The conclusion discusses public accessibility to surveillance technologies and the legal implications on 4th Amendment search and seizure, and expectations of privacy.
