Privacy: A Thing Of the Past?

Lis Wiehl

Britney Spears recently burst into tears while pleading for privacy during an interview on NBC's “Dateline.” “Privacy” and “respect,” Spears explained, are “things that you have to have as a human being.” Say what you will about the pop princess, but I couldn't agree with her more.

Even so, many Americans responded with little more than a yawn when it was disclosed that the National Security Agency (NSA) has been sifting through our private phone records without a warrant. Granted, concerns about privacy can seem abstract, not to mention trivial, when set against a backdrop as horrific as 9/11. And President Bush did assure us that the government is "not mining or trolling through the personal lives of millions of innocent Americans…efforts are focused on links to Al Qaeda and their known affiliates."

But the president's explanation has been contradicted by recent reports. On May 11, 2006, USA Today revealed that the NSA has secretly been collecting the phone records of tens of millions of Americans, and that the agency's goal is to generate a database of every call made within the nation's borders. According to a recent article in Business Week, the collection of phone records represents only a small portion of the personal data the government seeks to "mine" for evidence of terrorist plots.

Of course, the practice of "data mining" is nothing new, nor is it generally done for nefarious purposes., the world's biggest online retailer, monitors its customers' purchases and uses data mining to suggest additional items the customer might want. When “loyalty cards” are used at grocery stores, details of the customer's purchases are automatically recorded and stored, and a buying profile is similarly formed.

And that information can be very valuable. When online retailer Toysmart filed for bankruptcy, its most valuable asset was reportedly its customer list. In fact, there is an entire industry of information “brokers” who combine details from public records, such as motor-vehicle information, with data about consumer purchasing behavior — but what may surprise you is the government is buying.

An April 2006 Government Accountability Office (GAO) report indicates that the government spent about $30 million last year to obtain details ranging from citizens' personal finances and address histories, to the names of family members and associates, and much more. The report also indicated that often no steps are taken to ensure the accuracy of what is collected. Even more disturbing, the Associated Press recently revealed that private brokers may not be coming upon all of their information legally. (Still yawning?)

And then there's the problem of information overload. Indiscriminate analysis of immeasurable amounts of data does nothing to protect us from terrorists; in fact, it may have the opposite effect. According to a recent report by the Congressional Research Service, the NSA is at risk of being “drowned” in information.

"False positives" can also be an issue. “A lot of people have the same names, there can be errors in the records, a lot of innocent people get stopped from traveling… It's very easy to make a lot of mistakes with this technology,” said Newton Minow, chairman of the Technology and Privacy Advisory Committee, commissioned by the Department of Defense in 2003.

Sen. Ted Kennedy (D-MA) would no doubt, concur. In August 2004, Sen. Kennedy revealed that he had been repeatedly delayed at airports because his name had appeared on the government's “No-fly” list. He said it had taken him three weeks of direct appeals to the Homeland Security secretary to get his name removed. It was subsequently explained to the multi-term senator that the name "T. Kennedy" was once used as an alias of a suspected terrorist. Yet, there are an estimated 7,000 American men named T. Kennedy.

A more chilling example involved lawyer and former U.S. Army Lt. Brandon Mayfield. Two years ago, he was arrested in connection with the 2004 commuter train bombings in Madrid after the FBI mistakenly matched a fingerprint taken from Mayfield's military records with one found on a satchel which contained detonating devices. Despite the fact that Mayfield had no criminal record and had not left the country in almost 10 years, he was imprisoned for 21 days — much of the time without access to a lawyer — before the fingerprint was determined to be that of an Algerian terrorist. An FBI inspector later found that investigators had ignored evidence of Mayfield's innocence in favor of the computerized data match.

But the federal government isn't the only source of law enforcement capable of infringing on our privacy rights. Several months ago, Houston Police Chief Harold Hurtt recommended placing surveillance cameras in private homes to fight crime during a shortage of police officers. Hurtt explained, “I know a lot of people are concerned about Big Brother, but my response to that is, if you are not doing anything wrong, why should you worry about it?”

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently an associate professor of law at the University of Washington School of Law. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.