In America, police officials cannot legally enter your house without a search warrant. And under a recent Supreme Court ruling, they cannot use thermal technology to scan the outside of your house for unusual heat – which is a simple way to check for marijuana growth under heat lamps. But other than those narrow situations, almost everything else is fair prey in a society that increasingly values privacy as the least of all fundamental rights.
While online, private companies track your activities through “cookies.” Your bank may now sell your personal information to third parties, unless you take the initiative to “opt out” of the privacy-depleting exchange. And if you live in Tampa, Fla., you cannot walk around portions of the city without having your face scanned by a camera and entered into a criminal database to check for facial similarities to suspected felons.
In Tampa, police have implemented the high-tech surveillance program, known as FaceIt, in one of the city’s most popular downtown districts. FaceIt was developed by Visionics, a New Jersey corporation specializing in systems that use cameras linked to computers to scan faces and automatically compare them with electronic photographs stored in databases. Indeed, the program implemented in Tampa uses three dozen sophisticated cameras to scan faces in the crowd. It then compares the faces to a massive database of wanted suspects to find matches. If a match is found, police then apprehend the person. If no match is discovered, the face is supposedly deleted from the system.
Incredibly, police claim that the program is no different than officers walking through a crowd with a mug shot in hand. And even some patrons in the downtown area who were under surveillance supported the cameras, hoping that it would decrease crimes such as purse thefts and shoplifting.
When asked about privacy concerns, City Councilman Robert F. Buckhorn, Jr., who is chairman of Tampa’s public safety committee, told the New York Times that on a city street your expectation of privacy is somewhat diminished anyway. But the fact is that Tampa’s surveillance program takes public invasion of privacy to a different level altogether.
Technically, Councilman Buckhorn may be right. People do not have a constitutional right to privacy unless they have a reasonable expectation of it. Thus, private homes are safe from any police invasions without a warrant. Marijuana grown in an open field, however, is not safe. Likewise, a judge might very well agree that taking a picture of someone’s face out in public does not invade any reasonable expectation of privacy.
Yet, while this might be the correct answer on a law school essay exam, it doesn’t mean that it’s the right result for a free society. Clearly, the founders of our nation intended to give us vigorous privacy rights in our home. However, we shouldn’t assume they meant to stop there.
In 1776, the British were not in the habit of placing city blocks under the constant surveillance of 36 cameras that took detailed scans of the colonists’ faces and then ran those scans through a criminal database. If they had, you can be sure that such a program would have been explicitly included in the Fourth Amendment.
It’s important to realize here that the protection of privacy is not simply a legal technicality – it is a basic principle of democracy. Obviously, if police installed surveillance cameras in every home, they would likely catch most criminals and potentially prevent a multitude of crimes. Further, we would have unassailable proof in all types of crimes, including domestic violence cases, and fantastic evidence for all sorts of different claims. The benefits would be enormous, even if police didn’t install the surveillance cameras in particularly sensitive areas such as bathrooms.
Hopefully, this will never happen, however, because free societies place a paramount value on individual autonomy. Each citizen in the United States has the right to participate in society without the express or implied threat of coercion. After all, that is exactly what constant surveillance is – the ultimate implied threat of coercion. Like driving down the highway with a police officer trailing, constant surveillance causes one to self-censor any activity that might be construed wrongly, no matter how legal or profitable that activity might be.
However, constant surveillance looms on the horizon as a reality. In fact, it was recently revealed that Visionics has received millions of dollars in federal funding to improve its surveillance technology for military and intelligence uses. And FaceIt is being employed by a host of government agencies – including the secretive National Security Agency, the Defense Department and the Justice Department. Unfortunately, looming behind the scenes is a multi-million dollar research effort by the United States government to put into place technologies that have the ability to routinely monitor American citizens.
Obviously, FaceIt and invasive programs similar to it should be carefully evaluated before being implemented. There is some concern in Congress, and hopefully our elected representatives will take some steps in protecting us. The last thing we want is a country where everyone spends their time looking back over their shoulder, instead of forward to where they hope to be.
And in the end, that is the real danger of such surveillance programs – they leave us thinking about what we shouldn’t be doing, rather than free to consider the possibilities of what we can.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute, editor of Gadfly Online and author of “Grasping for the Wind.”
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Nin Privitera