Privacy Comes Under the Technology Gun

With myriad high-tech gadgets aiding the war on terror at home, some groups say they are worried that the United States is beginning to look like something out of George Orwell’s 1984.

While America has not yet turned into the fictional nation of Oceana with its constant Big Brother surveillance, it could, they say, if nothing is done to protect America's civil liberties from technology's rising tide.

Those advocates suggest that experts be put into the highest government offices to prevent a loss of civil liberties, a Big Brother for Big Brother as it were.

The Senate responded when it included a chief privacy officer in its Department of Homeland Security bill now being debated in Congress, but that may not be enough, some say.

"Over time, what we’re creating is really a department of federal police. That department’s main incentive is going to be to enforce the law, it’s not going to be to protect privacy," Jeff Eisenach, president of the Washington-based Progress and Freedom Foundation, said of the new homeland security agency.

Eisenach and Peter Swire, privacy officer in former President Clinton’s administration, are pushing for a privacy commission that can prevent the "permanent diminution in privacy, personal liberty and the open society freedoms that have characterized America from the start," as they wrote in a recent editorial.

They have the backing of Democratic Sens. John Edwards of North Carolina and Charles Schumer of New York, who last month introduced legislation creating a privacy commission to evaluate investigative and surveillance technologies used by law enforcement in national security initiatives.

An Edwards spokesman said the lawmakers hope to attach their bill to the Senate version of the homeland security bill and expect bipartisan and administration support for the idea. Sen. Orrin Hatch, R-Utah, also hopes to have a commission made part of the final homeland security bill, his spokeswoman said.

But whereas Edwards and Schumer want commission members to be representatives of Congress, the FBI, CIA, and other homeland security officials as well as non-governmental groups think a combination of government officials, academia, and tech gurus would be best.

"I think you would want a mix of people who understand tech, people who understand national security concerns and people who understand the law," Eisenach said.

Just one problem with the law, said Chris Hoofnagle, legislative counsel for the Electronic Privacy Information Center, it hasn't kept up to date with technology.

"In information privacy, the law stopped evolving around the 1990s," Hoofnagle said, citing a recent court decision in Washington state that demonstrates how laws are being enforced at the cost of privacy.

In that case, the state Supreme Court unanimously ruled Washington's voyeurism law does not cover sneaking photographs beneath the clothes of women in public places. Two men challenged the state's law after they were caught in 1999 and 2000 in shopping areas taking pictures of what was underneath womens’ skirts. One planned to sell his photos to an Internet site that specializes in such shots. The other kept the videotapes for his private viewing but has since surrendered them.

And while laws need to be updated, so does the jurisdiction over such cases, Hoofnagle added.

"I think there’s an increasing recognition there needs to be a central place in the federal government to protect privacy," Hoofnagle said. "I think there’s probably not a clear mandate for any of these agencies."

But whether any of the technology measures are adapted long-term remains to be seen.  As it is now, the technology really only provides a modicum of security benefits, say industry analysts.

When measured against privacy concerns, the "burden is on the technologists to demonstrate that their solutions will actually be effective in making us safer," according to the American Civil Liberties Union Web site.

T.F. Green International Airport in Providence, R.I. has already decided to forego facial-recognition cameras, citing the possibility of false matches and other technological shortcomings of facial-recognition systems, EPIC added.

A prime time to look at what's working and what is not is in five years when the USA Patriot Act -- law enforcement measures enacted shortly after the Sept. 11 terrorist attacks -- expires, said Mark Uncapher, vice president and general counsel for the Information Technology Association of America.

Until then, some sort of person to watch over privacy issues in the White House may be a good thing, he said.