By Margaret Hu, a visiting assistant professor at Duke Law School. Her research focuses on immigration and surveillance policy. She previously served as special policy counsel on immigration-related discrimination in the Civil Rights Division of the U.S. Department of Justice.
When it comes to surveillance, size matters. In U.S. v. Jones, the GPS tracking case, the Supreme Court just might agree.On November 8, the Court heard arguments on whether the police violated the Fourth Amendment’s prohibition against unreasonable searches and seizures when it continued to monitor Mr. Jones’ car with a GPS device after the warrant expired. During oral argument, what seemed clear to the Justices is that cyber-surveillance today is not your grandma’s apple pie surveillance. With new technologies, the Justices seem to be wondering whether being watched 24/7 may one day be as common as, well, apple pie.
Back in the day, surveillance meant being tailed. The government sent someone to follow you around. Today, technology has given the government the capacity to track both your body and biography 24/7. And it’s not just “persons of interest” anymore. With cyber-surveillance, it’s now cost-effective to track everyone. But, is it ok for the government to check your email, google searches, and Facebook page? Skim your credit card records and purchases on Amazon? Monitor your cell phone records and smartphone locations? During U.S. v. Jones, the Supreme Court wondered aloud during oral argument whether the government could attach GPS devices to the license plates of everyone who owns a car in the entire U.S.
This last scenario might not be as far-fetched as it sounds. After 9/11, the government has justified more and more invasive use of database surveillance technology or “dataveillance.” One of these technologies is called RFID, or radio frequency identification. Since 2007, U.S. passports have been implanted with RFID technology. Additionally, the electronic enhancements required under the REAL ID Act of 2005 may lead to the eventual inclusion of RFID in all driver’s licenses. New York, for example, offers a RFID-“enhanced” driver’s license. Technology experts are now merging RFID and GPS technology. Consequently, GPS satellite tracking of everyday ID documents could be a surveillance game-changer.Even if the Supreme Court concludes that the police need to obtain a warrant to place GPS devices on our vehicles and monitor our whereabouts without our consent, it is possible that no warrant would be required to track our movements through RFID documents in our purses and wallets after we “voluntarily” consent to receiving the RFID document.
In addition, under recent comprehensive immigration reform proposals, Congress has recommended replacing paper Social Security Cards with "high-tech" Social Security Cards. These cards would require the collection of our biometric data (fingerprints, DNA, iris retinal scans, etc.) and would serve as a Biometric National ID Card. And state immigration laws such as the controversial laws passed in Arizona, Alabama, Georgia, and other states require the possession of identity documents on our bodies at all times. RFID technology implanted in ID cards would provide a method for 24/7 cyber-surveillance that could potentially be used to screen personal data and biometric information through immigration, criminal, and national security databases, and through corporate databases as well.
The Supreme Court recently gave states the green light to dramatically increase the dataveillance of U.S. citizens through the mandated expansion of the controversial E-Verify program. The experimental "test pilot" program is an internet-based database screening program that allows an employer to electronically verify identity and citizenship status through government database matching. The government supports the expansion of E-Verify as a tool for immigration control. During the last Supreme Court term, in Chamber of Commerce v. Whiting, the Supreme Court upheld an Arizona immigration law that requires all employers to use E-Verify database screening on new hires. But E-Verify can be classified as a government surveillance tool. Each entry of personally identifiable data (e.g., name, Social Security Number, date of birth, etc.) into the system is stored by the Department of Homeland Security and allows the government to monitor and track those individuals entered into the system. Soon after the Whiting opinion was issued by the Supreme Court, Congress proposed a bill that would require the expansion of E-Verify use nationally.
Database technologies have always played a role in national security policy. Those database technologies developed by the U.S. Census Bureau at the turn of the century, for example, were used after Pearl Harbor to identify Japanese Americans for internment purposes and again used to identify Arab Americans after the 9/11 attacks. In short, increasingly, post-9/11 immigration-counterterrorism policy has been used to justify the expansion of data mining and “dataveillance” programs such as E-Verify, RFID and GPS surveillance, and biometric credentialing.
Given that some GPS-compatible tracking tools, like RFID documents issued by the government, may eventually become a part of our everyday lives, continuous 24/7 government monitoring of everyone and everything we do may become routine—the new normal. In other words, “reasonable expectations of privacy” under the Fourth Amendment may be dramatically redefined when the potential of ubiquitous cyber-surveillance occurs on such a large scale. However, it’s not only the sheer size of the government’s ability to track us that is frightening. What should concern us the most is the way in which new Bigger Brother surveillance may be executed in a manner that is nearly impossible for us to detect. Makes you wish the government would continue to serve those small slices of grandma’s old-fashioned surveillance pie.
[Photo courtesy of Quevaal]