Law & Technology: Living With Total Surveillance

By Deborah Pierce

Bank deposits and spending patterns scrutinized; a subpoena issued to Planned Parenthood for the names of all women who visited the clinic over the last nine months; police filling a database with names, addresses, and photos of people they believe will commit a crime—we are in the process of creating the surveillance state that George Orwell feared in “1984”. As disturbing as this is, many people don’t even realize that it is happening.

Over the last few weeks I’ve had conversations with several of my fairly intelligent, well-informed friends, and was dismayed that none of them had heard of these news stories. A previous article I wrote for the Seattle Press dealt with the idea of a panoptic society in the abstract. This article will focus on some recent, concrete examples of this trend.

Building in surveillance

In the last six months several stories and developments that illustrate this rush to install and use mass surveillance have received little media attention. Consider these:

Financial data: The mandatory “Know Your Customer” (KYC) regulations require financial institutions to identify all bank patrons, determine the sources of all of their deposits, watch for “normal and expected” transactions and flag anything that looked out of the ordinary. If anything is amiss, then a “suspicious activity” report is filed about the patron. Law enforcement examines the report to determine if the activities warrant further scrutiny. There is no requirement to notify patrons that a suspicious activity report has been filed on them.

The KYC regulations were originally proposed two years ago by the FDIC. Before going into effect, they had to be published in the Federal Register for public comment. Over 200,000 comments were received (an unheard of number), and all but about 6 of them were negative. With such overwhelming disdain for the KYC regulations, they were withdrawn in 2000. But now they’re back: the USA PATRIOT Act has authorized their use and they go into effect in October of this year.

Medical Records: Several months ago a baby was found dead in a dumpster in Iowa. With no leads, the police decided to subpoena local hospitals and clinics for records of every woman who had a positive pregnancy test with in the last nine months. Police want to question each woman to find out if the result of the pregnancy ended in a live birth, an abortion, or a miscarriage. Some hospitals and clinics complied with the subpoena, but a local Planned Parenthood (PP) did not. PP stated that if there had been a warrant or subpoena for a particular person they would have complied, but they were reluctant to hand over all of their records where the police have no reasonable suspicion, let alone probable cause, to believe that any of these women committed a crime. Whether or not PP will have to hand over the records is now in the hands of the Iowa state Supreme Court.

Police database of potential criminals: In Delaware, about 200, mostly minority men from poor neighborhoods, had their names, addresses, and photographs entered into a police database on the theory that they were likely to commit crimes in the future. Many of these “suspects” had been stopped for loitering but then released.

DNA databases: Ohio is keeping databases of DNA profiles from people who have been acquitted of any wrongdoing—and have been doing so for the last three years. According to The Cincinnati Enquirer, some of those whose DNA was collected were never told that it would be kept and then matched against evidence from future unsolved crimes.

Where’s the discussion?

Answer honestly: had you followed any of the stories in the media? Probably not, and it’s not your fault. Mainstream media does a poor job of covering these issues. I’ve not seen the KYC issue covered in mainstream media. The Planned Parenthood story was buried in the middle of the front section of the paper, with about one square inch devoted to it; ditto for the potential criminal database story.

This kind of mass surveillance is anathema to the free society that we have always valued. It’s distressing to see us drifting into this kind of society without discussing or even thinking about the consequences.

What You Can Do?

• Ask authorities (law enforcement and elected representatives) to defend their use of mass surveillance.

• Contact newspapers, radio and TV stations and ask why some of these invasive strategies are not being covered. Demand that they be covered.

More Information

Article about Delaware police database of “future” criminals
http://www.local6.com/sh/technology/stories/national-technology-163299720020826-110826.html

Privacy Furor Over Subpoena in Baby's Death
http://www.nytimes.com/2002/08/24/national/24PRIV.html

Wired story “There’s No Place To Hide”
http://www.wired.com/news/privacy/0,1848,54598,00.html

SeattlePress article on the Panopticon
http://www.seattlepress.com/article-9464.html

Article about DNA databases of innocent people
http://enquirer.com/editions/2002/08/08/loc_database_keeps_dna.html

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