Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 2
By Ralph C. Martin II
Who's Watching the Watchers?
Someone has been watching me. I haven't done anything wrong, but I know that I am being watched. For instance, I recently visited the website of a motorcycle manufacturer to indulge my fantasy of acquiring a motorcycle. This is a fantasy that will probably go unrequited. Regardless, my visits to the website were followed, within four to six weeks, by the arrival of unsolicited mail from companies that produce motorcycle accessories. After quickly burying the catalogs in the recycling bin amid junk mail (so that my wife would not know that I was even thinking of such foolishness), I began to wonder: How did I come to be on these mailing lists?
I continue to read about the ability of companies (and the government) to acquire information from electronic devices, databases, and other sources. The most troubling aspect of this recognition is that traditional views of the right to privacy are being upended because technology is taking our nation in directions never contemplated by the drafters of the First Amendment. For instance, if you own a video recording device called a TiVo, it transmits (via your telephone line) information about the programs you watch to a private database. This occurs without your participation or permission, thank you very much. You may own the device, but another entity owns the information about your viewing habits, and it can sell this data to whomever. In the very near future, if not presently, there will be more and more devices that will enable companies to actively acquire information about you simply through your operation of a device that uses phone lines, broadband, VPN, and wireless technologies.
This past year, we learned that face-scanning technology was used by law enforcement at the Super Bowl. This technology was used to capture the image of every person passing through the stadium's turnstiles, and then compare them (in very close to real time) with possible known criminals. The use of this technology at the Super Bowl begs several questions: Who makes the decision on when it is used, and under what circumstances? Also, can we now expect that the government and private industry can capture and use our image without restrictions?
There are many more instances of companies and the government using information to "profile" people. One example is Amtrak's acknowledgment that its ticketing computer in its Albuquerque office is linked to the local DEA office. This allows DEA agents to review passenger lists and determine which riders to question, or whether to have their bags inspected by drug-sniffing dogs. By the way, Amtrak receives a 10 percent cut of any assets seized.
The ABA House of Delegates recently approved standards related to technologically assisted physical surveillance (TAPS). This work was produced by a Criminal Justice Section Council "working group" led by Sheldon Krantz and Professor Christopher Slobogin. At the time that the TAPS Standards were first contemplated, they were meant to anticipate where state of the art physical surveillance was headed. These standards are probably applicable to only one of the scenarios described above, thus indicating just how much technology has surpassed the initial assessment of why surveillance standards were necessary. Now, through the use of technology, private companies and the government can surveil our spending habits, health, and whereabouts without the need to be physically present.
There are many implications raised by the use of these powerful applications. Many of the problems and powers have not yet revealed themselves. But, as the technology evolves, those who practice in the criminal arena will also have to adapt. The Criminal Justice Section Council, which seeks to preserve the balance between the rights of the accused, the power of government, and the interests of society, may have to add a new dynamic to this mix: the private sector's role in acquiring and dispensing intelligence. The analysis of what the proper balance is will become increasingly complex; without the participation of the private sector and the leadership of the Criminal Justice Section Council, the opportunity to achieve balance may be lost to the pursuit of separate interests.
Ralph C. Martin II, of Boston, Massachusetts, is the district attorney for Suffolk County and chair of the Criminal Justice Section.