Last week, the news broke that mobile phone carriers received more than 1.3 million requests for their customers’ phone records last year from US law enforcement agencies. Perhaps most disturbing among the details reported is that neither law enforcement nor companies are under any obligation to disclose these requests. The revelations about the number of requests in 2011 came to light only because Representative Edward Markey, a senior member of the House Energy and Commerce Committee from Massachusetts, submitted letters to nine cellphone service providers asking for the information.
Markey’s requests were actually prompted by the results of an earlier request for data on surveillance by the ACLU, which yielded over 5,500 pages of documents cataloguing the details of routine and widespread police surveillance in the United States. Of the 200 police departments contacted by the ACLU, virtually all reported tracking cell phones, and yet only a tiny minority reported obtaining a warrant or providing probable cause for the search. Referring to the case of U.S. v Jones, in which the Supreme Court ruled that the government violated the Fourth Amendment when it placed, without warrant, a GPS tracking device on the car of Antoine Jones, a suspect being investigated for narcotics violation, the ACLU argued that tracking cell phones should be no different.
Yet the documentation received by the ACLU revealed that not only are the legal checks “loose and inconsistent,” but potentially huge numbers of innocent Americans can be (or indeed already are) subject to the same treatment by the government as Jones was, because the tracking by law enforcement is sometimes extended to everyone using a particular cellphone tower at a given time.
How did we come to this point? Written a few short months after the 9/11 terrorists attacks, a December 2001 Wired magazine article entitled, “The Surveillance Society” begins with a familiar narrative of the ease with which “what was considered Orwellian one week seemed perfectly reasonable – even necessary – the next,” in a nation shocked by the attacks. But according to the article, “the US was embracing the Surveillance Society well before September 11.”
As evidence, the article cites the wide acceptance of surveillance cameras for security prior to 9/11 and the use of technologies such as credit cards and web browsers that, because they readily enable tracking, “might as well” be spy technologies.
The article concludes on an optimistic tone with an anecdote about how cameras installed on police patrol cars in Orange County, California, allowed victims of excessive police force to bring accountability to law enforcement; surveillance tools can bring transparency! Today, this optimism can make for a difficult read: “The Constitution itself, therefore, stands in the way of Big Brother. OK, privacy is eroding. But liberty, and the safeguards inherent in due process, remain strong. The government can collect megabytes of information about us, but where and when they do and how that information is used is still subject to the laws designed to keep the state from abusing its power.”
There certainly have been people who have openly opposed the collusion of private communications organizations and government in surveillance efforts of questionable legality since this article was written. In 2008, for example, progressive "netroots" bloggers and Ron Paul supporters united in opposing retroactive immunity for telecommunications corporations that had aided in the warrantless wiretapping uncovered by the New York Times in late 2005. But it does not seem as though there has been any effective coalescing of a political movement to halt or reverse the evolution of the Surveillance Society. After all, the immunity for telecoms was granted as part of the Foreign Intelligence Surveillance Act Amendments (FISA) passed in 2008, along with other provisions that hardly quelled the concerns of those who felt the government had come to assume far too great surveillance powers.
Where has the mass public outrage been over last week’s revelations? Although WikiLeaks brought some degree of transparency, the surveillance of the past decade hasn’t exactly provided a means of holding the government to greater accountability (as the 2001 article suggested).
That’s not to say that the view from 2001 has no new insight of value on how we got here. If the Surveillance Society had already arrived prior to 9/11, built up brick-by-brick with the acceptance of each “spying technology” (i.e. the credit card, the web browser), then what is to be said of the culture built by the adoption of all the technologies that have followed, from blogs to Facebook to smart phones to foursquare?
Dramatic though last week's revelations were, they do not seem likey to galvanize any broad movement for change.