Avoiding the Orwellian Future: Privacy implications of increased public surveillance

Imaging technology plays a key role in law enforcement but, without rules, could significantly infringe on individual liberties and privacy.

Photo by James Clayton

Throughout history, pop culture has been a discussion board of sorts for society’s concerns about omnipresent government surveillance.  George Orwell’s novel 1984, a classic tale of “Big Brother,” “thought control,” and pervasive government surveillance, is required reading in many high school English courses.  More recently, the hit show “Person of Interest” on the CBS network has grappled with these types of concerns.  Viewers watch as a vigilante goes about New York City trying to prevent crime before it happens, using information he receives from “the machine.”  Essentially, “the machine” is a powerful supercomputer that aggregates data from surveillance cameras and other electronic devices across the world.  Neither “Person of Interest” nor 1984 depict the current reality in the United States; nevertheless, the privacy concerns implicated in both accounts are very real.

Tragic attacks like those in Boston last month often leave society clamoring for answers as to what could have or should have been done from a preventive standpoint.  While imaging technology played a crucial role in identifying the suspects in the Boston case, whether technology plays a meaningful role in preventing crime is still a topic of debate.  However, whether used for prevention or identification purposes, the expanded use of imaging technology by law enforcement implicates serious privacy concerns for the public at large.

At the current clip, technology is outpacing its regulation by a wide margin.  Gordon Moore, the founder of Intel, first observed that processing power doubles every eighteen to twenty-four months.  This observation has come to be accepted in the technology community as “Moore’s Law.”  It is clear that the development of new technology and the improvement of existing technology is not slowing, but rather is growing exponentially.  What is less clear is whether lawmakers are equipped to address the host of privacy concerns as cutting edge technology is deployed across the United States.

As a society, America has seemingly acquiesced in the widespread use of CCTV in public places.

To pinpoint the two suspects in the Boston attacks, law enforcement officers manually pored through footage captured by closed-circuit television (CCTV) cameras located on the streets of Boston.  Once police identified the individuals as persons of interest, the images were subsequently released to the general public for assistance in identifying the two men.  The images produced by the cameras were grainy and unclear; facial recognition software failed to identify the two men, even though each suspect was in the database.  Despite this failure, the footage marks progress in the development of CCTV technology.  It is unclear how many CCTV cameras were in use at the time of the April bombings; however, by the end of 2007, there were 147 CCTV cameras located in the Boston metro area.

To borrow from the 1967 Fourth Amendment case of Katz v. United States, individuals possess no legitimate expectation of privacy in what is observed by CCTV cameras on public thoroughfares and streets.  As Justice Harlan’s concurrence explained, “objects, activities, or statements that [one] exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to [oneself] has been exhibited.”  As a society, America has seemingly acquiesced in the widespread use of CCTV in public places.  Local governments install the cameras on public streets, private businesses use them for security purposes, mass transit providers implement them on their transportation, and the cameras are even installed by private companies for highway traffic monitoring.

Coupled with CCTV, widespread adoption of FRT or iris scanners could potentially transform the United States into a mass surveillance State.

The advent of new technologies makes the use of basic CCTV even more valuable to law enforcement but may further intrude on individual liberties and privacy in general.  One rapidly developing field related to CCTV is remote biometrics.  This includes, among other things, facial recognition technology (FRT) and iris scanners.  FRT identifies individuals in pictures or video footage by utilizing complex algorithms that analyze facial characteristics, such as facial size and distance between features.  Iris scanners, first developed at the request of the United States’ military during the Iraq War, are a relatively new development in the field of biometrics.  These scanners enable users to capture “iris prints” of subjects using flashes of infrared light.  Even though iris scanning technology is in its infancy, it can already be used up to sixty feet away and is more effective than FRT.

Coupled with CCTV, widespread adoption of FRT or iris scanners could potentially transform the United States into a mass surveillance State.  As the technology of each develops and integrates, the resulting product could be invaluable to law enforcement officers at the expense of individual privacy.  Such technologies would allow government agencies to track movement of individuals across a period of time.  As the D.C. Circuit Court of Appeals observed (pdf) in the 2010 case of United States v. Maynard: “[A] person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.”

Improved CCTV imaging coupled with one or more emerging forms of remote biometrics could result in prolonged surveillance of every individual.  In effect, each camera or sensor would become a “checkpoint” in this Orwellian-like society.

In some regards, movement tracking of automobiles already occurs.  Police agencies throughout the country have adopted automated license plate reader (ALPR) technology.  ALPR cameras are mounted on the top of patrol vehicles and are designed to scan as many as 1,800 license plates per minute.  The technology enables officers to seek out motorists driving with expired plates, without insurance, or in a stolen vehicle.  Of more concern, however, is that the data can be logged in databases that track the location where an individual’s plate was scanned.  Much like the Court expressed in Maynard, this amounts to prolonged surveillance that could significantly infringe on individual privacy.  Most police departments using the technology have no policy regarding how long the data is to be stored.

The constraints on privacy and individual liberties created by surveillance technology may not be a price that society is willing to pay.

Since 9/11, Americans have been asked to give up a certain degree of individual liberty in exchange for greater safety and security.  The constraints on privacy and individual liberties created by surveillance technology may not be a price that society is willing to pay.  Even after the attacks in Boston, a recent TIME/CNN poll suggests that the majority of Americans are opposed to new law enforcement procedures that would increase safety but diminish civil liberties.

Supporting the poll’s findings is the fact that most observers now believe there is little to no deterrent effect from increased public surveillance such as CCTV.  Although increased surveillance may significantly enhance law enforcement agencies’ ability to identify suspects, its utility as a deterrent is negligible; at least in the Boston case, the presence of street cameras, and even the multitude of cameras being used by spectators to record the marathon, provided no deterrent effect.  In domestic acts of terror, the perpetrator is often prepared to and intends to die for his cause.  The presence of a security camera to capture the deed likely has no effect on someone who soon plans to meet their own demise.  Notably, however, the continued development of behavioral predictive software could increase the deterrent value of CCTV.

The market is churning out the technology faster than the legislature can make the rules.

Closed-circuit television cameras, along with other developments that could one day make CCTV even more critical to law enforcement, undoubtedly provide benefits to law enforcement and to society as a whole.  In the wake of the Boston bombings, development and deployment of this technology throughout the United States will only increase.  With that in mind, the focus turns to the implications of an ever-evolving arena of technological innovation.  While this technology does have a place in law enforcement, it should not go unchecked.  To date, the market is churning out the technology faster than the legislature can make the rules for its use.  Concerns about America becoming a mass surveillance State could be alleviated if lawmakers act swiftly to set clear policies regarding the use of these and future surveillance-related technologies.

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About Tripp Huffstetler, Senior Staff Writer (57 Articles)
Tripp Huffstetler served as the Senior Ethics Staff Writer for the Campbell Law Observer. He is originally from Cherryville, North Carolina. In 2011, Tripp graduated from the University of North Carolina at Chapel Hill with a bachelor’s degree in Philosophy as well as Political Science. During his undergraduate studies, Tripp spent summers assisting at a practice in his hometown of Cherryville. During law school he interned with the Hon. Kris Bailey, District Court Judge; Judge Paige Phillips, Wake County Magistrate; the Hon. Paul C. Ridgeway, Superior Court Judge; and the Wake County District Attorney's Office. He also assisted a local attorney in drafting a guide to interlocutory appeals, which will be published by the North Carolina Bar Association. Tripp graduated from Campbell Law School in May 2014.
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