Is Technology Outstripping the Ability of Law to Protect Us?

Recent revelations about the National Security Agency amassing massive amounts of data ranging from cell phone records to Internet activity to credit card transactions have, quite rightfully, led many Americans to become concerned about the extent to which our civil liberties are being eroded by government monitoring in the name of "public safety."

Of course, the government has been engaged in data collection for quite some time. As James Bamford first detailed in his classic 1983 book The Puzzle Palace, the NSA has been engaged in the practice of collecting data for decades now. Theoretically, the agency's mission was, and indeed still is, supposed to be limited to collecting data on communications between people in the United States and people in foreign nations, especially nations that are potential adversaries of the United States. In reality -- even 30 years ago when we were all still communicating via hard-wired telephones and the Internet was still not much more than a research project at DARPA that had begun connecting American universities together -- the signals intelligence that the NSA was collecting inevitably ended up including purely domestic communications.

Now we live in a very different technological era. For many people, cell phones are the primary, if not exclusive, means of communication; the Internet has exploded into something that can now be accessed by a device that can fit in the palm of your hand; and we are slowly moving into an era when it will be commonplace for people to store personal data in "the cloud," where Fourth Amendment protections don't necessarily apply. To the extent that they have been able to deal with the issues that this new technology presents, courts have been forced to apply precedent based on twentieth, or nineteenth, century technology to the twenty-first century. The result, quite often, has been a decided bias in favor of the state and against individual liberty.

At the same time, Congress has generally failed in its task of honestly debating new laws that apply to these technologies, and has acceded to the requests of law enforcement for greater powers to gather information. The classic example of this is the Patriot Act, which passed Congress with little actual debate by overwhelming margins in both the House and the Senate --a mere six weeks after the September 11 attacks. Since then, the law has been renewed with largely inconsequential revisions several times with little notice by the public.

Beyond the Patriot Act and the new revelations about the NSA, though, it seems rather clear that we've entered an era where the ability of the state to use technology to gather massive amounts of information about anyone they wish has expanded significantly. For example, since the September 11 attacks most major American cities have seen a massive increase in the number of surveillance cameras operating in public places. If you walk around Washington, D.C., or downtown Manhattan, it's virtually impossible to miss the massive arrays of both public and private cameras that are recording every move you make. To a large degree, these cameras have been accepted unquestioningly and rarely challenged in court.

In addition to public surveillance cameras, courts have been forced to deal with the idea of using global positioning satellites as a tool of law enforcement. For the past several years, for example, courts have struggled with the question of whether the police can surreptitiously place a GPS tracking device on someone's car without first having to obtain a warrant based on probable cause. Last year, in a rather confusing ruling, the Supreme Court ruled that police acted improperly when they placed such a device on a suspect's car and tracked him for nearly a month. The Court did not go as far as the D.C. Circuit Court of Appeals in its ruling on the issue, nor did they follow the logic of 9th Circuit Court Judge Alex Kozinski in his ruling on a very similar case. Most importantly, the Court did not rule that every use of such a device requires police to obtain a warrant.

The issue is still very open-ended, police can still theoretically make use of GPS tracking data without having to obtain permission from a judge, and every one of the increasing number of devices that have GPS capability is potentially a tool for law enforcement to track the movements of citizens.

All of this leaves us with a rather important question: are we at the point where technology is outstripping the ability of current laws, and the Constitution, to protect the civil liberties and the privacy of American citizens?

In many important respects, the answer to this question is yes. Take public surveillance cameras, for example. After the bombing attack in Boston, it was through the use of public surveillance cameras that authorities were able to identify the "persons of interest" that we eventually learned were the Tsarnaev brothers. In that particular case, the cameras in question were nearly all under the control of private companies using them for building security rather than surveillance, and in that situation the Fourth Amendment doesn't apply at all. Even in the case of wide nets of government-run surveillance cameras, the law places virtually no limit on what authorities can do with them.

Courts said long ago that there is no reasonable expectation of privacy in public, meaning that police can follow someone around or monitor their movements to and from a private location with virtually no limitation on their activity. Courts will only step in if the conduct becomes harassing. With cameras, though, authorities don't even need to expend the resources of sending officers out on surveillance; they can do it all from the comfort of an office, and there's nothing the law can or will do to stop them. Similarly, the revelations that have come out over the past week about the National Security Agency cover activities that, while rightfully raising concerns about privacy and government overreach, are largely entirely legal under both the Fourth Amendment and under the Patriot Act.

As I noted above, much of the problem we face today is that the law that we have to deal with issues about what the government can and cannot do was developed in the twentieth century when the technology available to the state was far more limited than it is today. Applying legal precedent written to deal with a completely different era to technology that is far more advanced is not an easy task at all, and it's something that courts will continue to struggle with. As long as that's the case, it's going to be next to impossible to place reasonable limits on what the state can do. More importantly, it will become even more difficult as technology becomes more advanced. It's time for the law to catch up with technology, and that's going to require the American people to become a lot more concerned about these issues than they have been in the past.