Once Upon A Time, Americans Had A Reasonable Expectation Of Privacy

The right to privacy is not addressed directly by the Constitution or the Bill of Rights. However. …

The U. S. Constitution contains no express right to privacy.  The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment’s privilege against self-incrimination, which provides protection for the privacy of personal information.  In addition, the Ninth Amendment states that the “enumeration of certain rights” in the Bill of Rights “shall not be construed to deny or disparage other rights retained by the people.”  The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.

You can read more about the history of the concept of privacy in America and Supreme Court decisions that have upheld a rather broad definition of our right to privacy at the source of the above quote. Unfortunately, the Bill of Rights and the Supreme Court are no match for technology, which like the proverbial genie, once out of the bottle, there is no putting it back. Let’s look at some of the technology being used for national security and/or crime control that will end any reasonable expectation of privacy in what is rapidly becoming a post 9/11 police state.

NSA’s Utah Data Center

It is no secret that our government is building a super secret data collection center in Utah. Precisely because it is super secret, we are not likely to get straight answers from our government on how that dat will be used and more importantly how it might be abused. Here is some of what Wikipedia says about the data center:

It is alleged to be able to capture “all forms of communication, including the complete contents of private emails, cell phone calls, and Internet searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital ‘pocket litter’.”

{…}

n August 2012 The New York Times published short documentaries by independent filmmakers entitled The Program,[10] planned for release in 2013, based on interviews with a whistleblower named William Binney, a designer of the NSA’s Stellar Wind project. The program he worked on had been designed for foreign signals intelligence (SIGINT) collection but, after the September 11, 2001 terrorist attacks, Binney alleged that controls which limited unintentional collection of data pertaining to United States persons were removed, prompting concerns by him and others that the actions were illegal and unconstitutional. Binney alleged that the Bluffdale facility was designed to store a broad range of domestic communications for the purposes of data mining without warrants.[11]

However, the primary mission of the National Security Agency is not domestic espionage, but rather protecting sensitive or classified US information from adversaries, sometimes called Information Assurance (IA), as well as collecting, processing, and disseminating intelligence information from foreign signals for intelligence and counterintelligence purposes and to support military operations, or Signals Intelligence (SIGINT).[12] NSA may monitor foreign communications, the collection of which do not require a warrant, including for those foreign communications which enter the United States and traverse US networks.[13][14][15] This mission does not include monitoring communications of Americans in the United States. An NSA spokesperson said, “Many unfounded allegations have been made about the planned activities of the Utah Data Center,” and further said that “one of the biggest misconceptions about NSA is that we are unlawfully listening in on, or reading emails of, U.S. citizens. This is simply not the case.”[16]

I particularly like the part about the “primary” mission not being domestic espionage.

From this year old article at Wired, we learn:

But “this is more than just a data center,” says one senior intelligence official who until recently was involved with the program. The mammoth Bluffdale center will have another important and far more secret role that until now has gone unrevealed. It is also critical, he says, for breaking codes. And code-breaking is crucial, because much of the data that the center will handle—financial information, stock transactions, business deals, foreign military and diplomatic secrets, legal documents, confidential personal communications—will be heavily encrypted. According to another top official also involved with the program, the NSA made an enormous breakthrough several years ago in its ability to cryptanalyze, or break, unfathomably complex encryption systems employed by not only governments around the world but also many average computer users in the US. The upshot, according to this official: “Everybody’s a target; everybody with communication is a target.”

{…}

…  To those on the inside, the old adage that NSA stands for Never Say Anything applies more than ever.

The Drone Age

John W. Whitehead has an interesting article on The Coming Micro-Drone Revolution.

America will never be a “no drone zone.”

That must be acknowledged from the outset. There is too much money to be made on drones, for one, and too many special interest groups – from the defense sector to law enforcement to the so-called “research” groups that are in it for purely “academic” reasons – who have a vested interest in ensuring that drones are here to stay.

{…}

Modeled after birds, insects, and other small animals, these small airborne surveillance devices can remain hidden in plain view while navigating spaces off limits to conventional aircraft. Able to take off and land anywhere, able to maneuver through city streets and hallways, and able to stop and turn on a dime, these micro-drones will still pack a lethal punch, equipped with an array of weapons and sensors, including tasers, bean-bag guns, “high-resolution video cameras, infrared sensors, license plate readers, [and] listening devices.”

In the article, Whitehead describes a number of micro-drones being developed. Here are just three:

Dragonfly drone. First reportedly spotted in 2007 hovering over protesters at an anti-war rally in Washington, DC, it turns out that the government’s dragonfly drones are just the tip of the iceberg when it comes to small aerial surveillance devices designed to mimic nature. Just a year later, the US Air Force “unveiled insect-sized spies ‘as tiny as bumblebees’ that could not be detected and would be able to fly into buildings to ‘photograph, record, and even attack insurgents and terrorists.’”

Spy-butterfly drone. In 2012, Israel unveiled its new insect-inspired drone which they dubbed the “spy-butterfly” because of its two sizable wings. Weighing in at only 20g, this drone was developed for indoor surveillance, including public places such as “train stations and airport terminals – or office buildings.” The size and muted sound of the “virtually noiseless” machines makes them unnoticeable and therefore ideal for intelligence gathering. The spy-butterfly is so realistic that, when tested, “birds and flies tended to fall behind the device arranging into a flock.”

Mosquito drone. More lethal than its real-life counterpart, the mosquito drone, while an engineering marvel, is also a privacy advocate’s nightmare with its potential to land on someone and use a needle-like-pincer to extract DNA from its victims or, alternatively, inject drugs or other foreign substances.

Smile! You’re on Candid Camara

Businesses have used security cameras for years. More recently cities have put cameras at key street corners or intersections for “security” reasons. With the advent of facial recognition software, this technology has played an important role  in criminal investigations and in the War on Terror. This was brought home to us in the last few days as this technology was how the Boston Bombers were identified. And articles supporting more cameras appeared almost immediately in the news.

Conclusion

The technology I’ve described today will without doubt make Americans safer from terrorist attacks and from criminals. But, there is a price to pay for that added security. The technology will be abused no matter the “good” intentions of our governments. As Americans, you no longer have a reasonable expectation of privacy.

Well, that’s what I’m thinking. What are your thoughts?

11 thoughts on “Once Upon A Time, Americans Had A Reasonable Expectation Of Privacy

  1. Sorry, Prof, I cannot comment on this post until I get it approved by the NSA, DNI, NIC, CIA, NRO, DIA, FBI, DHS, NSGC, NCIS, AFTAC, AIA, JD, CT, DS, and others (this are all true security related US agencies).

  2. The only time we here that Americans have privacy any more is when it comes to a woman’s right to chose, other than that we have to operate under the assumption that we have no privacy any more.

  3. And now liberty has been reduced to a fairy tale told to children when they despair over the debt we’ve left them…suck it up kid…you belong to the government and are only only on loan to your parents. [sarcasm]

  4. Refresh my memory, isn’t Roe vs. Wade based on the right to “privacy” between a patient and doctor? If the court found that there, does it apply anywhere else. And, if it doesn’t apply anywhere else, does it really apply to killing babies?

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