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Essay: Disappearing Privacy

David Rodriguez

Today is the 13th anniversary of the terrorist attacks that brought down planes and buildings in New York; Washington, D.C. and Pennsylvania. In the time since then, laws have been passed, measures have been taken and technology developed in the name of improving our national security.

Lake Effect essayist Steven Brandl wonders about the other effects of those laws and that technology.

The other day, I got an email from the National Institute of Justice, the arm of the United States Department of Justice that funds much of the research that’s conducted on crime and justice issues.  The title of the email was “Purchasing Through-the-Wall Sensors? Read a New Report.”  Even though I’m not in the market for a “through-the-wall” sensor, I read the report anyway.  In a nutshell, it discussed the value and effectiveness of various devices that can essentially, well, see through walls.  Indeed, such devices could come in handy for law enforcement when buildings are on fire, or collapse, or during tactical or hostage situations.  But this got me thinking….  Might this technology, or a more advanced variant of it, be used for other applications as well?  Wouldn’t this sort of technology also be useful for the police as they drove down the streets to see, or hear, what is going on inside of houses?  Wouldn’t this be great?  Fights and arguments could be interrupted before they turn into homicides!

There is only one problem: Do you want the police to have the ability to see what you are doing inside of your house?

A couple hundred years ago we came to the conclusion that individual privacy is precious and is to be protected.  Privacy was seen as a basic right of citizens.  The 4th Amendment to the United States Constitution said so.  When the 4th Amendment was first crafted, searches of citizens could only be conducted by authorities when they had good reason, or probable cause, to suspect involvement in criminal activity and when they had a warrant.  But over time, the 4th Amendment has been re-defined and re-interpreted.  Now, the overwhelming amount of searches that are conducted by the police are without “probable cause” or a warrant, and these searches are perfectly legal.  Some people would argue that the 4th Amendment is but a shell of what it used to be.

Generally speaking, the police can conduct searches without a warrant or probable cause in emergencies, of vehicles and certain other places, in stop and frisk situations, when citizens consent to searches, as well as in several other situations.  With the passage of the USA Patriot Act in the aftermath of the terrorist attacks of September 11th, governmental authority to conduct searches expanded again, as we were reminded with the revelations of Mr. Edward Snowden last year.

It is fair to say that our privacy continues to slowly disappear.  As I explain to my students in my Criminal Investigation class at UW Milwaukee, it is kind of like watching grass grow or paint dry.  Because it is happening slowly, many people don’t even realize its happening.  Or, at least for the younger generation, because they never realized they had it, they don’t realize they have anything to lose.   At the least, some of the loss of privacy we enthusiastically accept.  For example, if you’ve used Google Maps, satellite or street view, if you’ve talked on your cell phone in public to have a private conversation, or used certain features on Facebook or other social media sites, then you know what I’m talking about.  Each of these things whittles away our privacy.  By the way, some listeners might remember before there were cell phones there were public pay phones, and often those phones were located in booths, where you would step inside and shut the door in order to keep your conversation private.  Not anymore!

The technology available to law enforcement continues to challenge what the courts call “reasonable expectation of privacy.”  For example, the law prohibits the police from conducting strip and body-cavity searches on the street, but when I went to the airport last week, I and everyone else who passed through security underwent a perfectly legal electronic strip search. 

That same logic could be applied to other technologies as well; some are under development, some are already available, such as “through-the-wall sensors.”  Or how about cameras that are located everywhere?  Or cameras that can see through clothing?  What about tiny drones outfitted with cameras that can follow people or look through windows?  Or devices that can detect brain activity as an indicator of deception?  Or technology that can quickly search billions of email messages for specific senders, recipients, and key words.  Law enforcement technology that effectively tracks the location of cell phones is continuing to advance.  DNA is being collected, and stored, from more and more people.  Work is being done in various places to create massive databases of personal information for law enforcement purposes.  All of this is being done for the benefit of crime detection and criminal apprehension.

Is this what we want?

Well, it depends on your perspective.  At the very least, it is important to realize three things.  First, technology is not inherently all good.  We should realize that for as much good that technology produces, there is also bad.  In this light, technology is a double-edged sword.  Second, and more specifically, we must realize that the development and use of technology for law enforcement purposes has costs and benefits.  Some costs are financial:  It cost money, taxes, to develop and deploy technology.  If we think technology is great, then we have to be willing to pay for it.  Other costs are in the form of less privacy and fewer individual freedoms.  Finally, we must realize that less privacy doesn’t necessarily mean less crime, or more effective criminal apprehension.  The deployment of some of these technologies may impact the ability of the police to prevent and detect certain crimes, but not always.

The bottom line here is this: Technology and laws are slowly eroding our privacy.  That might be okay for most of us if there are crime control benefits that follow, but that is not necessarily the case.  What we are left with then is just less privacy.

Lake Effect essayist Steve Brandl is a Professor of Criminal Justice at UW-Milwaukee's Helen Bader School of Social Welfare.