The Personal Data Protection Act: Everyone Has Something to Hide

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In Alone Together, her wise and worrisome new book about the effect of technology on human relations, Sherry Turkle offers this disturbing anecdote. A few years ago, when the Bush Administration's illegal surveillance program was dominating the news, she attended a Webby Awards ceremony:

When the question of illegal eavesdropping arose, a common reaction among the gathered "Weberati" was to turn the issue into a non-issue. There was much talk about "all information being good information," "information wanting to be free," and "if you have nothing to hide, you have nothing to fear.

One "luminary" perversely referenced Michel Foucault's critique of the panopticon "to explain why he was not worried about privacy on the Internet," transforming Foucault's "critical take on the disciplinary society" into a defense of illegal government surveillance, as Turkle observes:

The panopticon serves as a metaphor for how, in the modern state, every citizen becomes his or her own policeman. Force becomes unnecessary because the state creates its own obedient citizenry ... on the Internet, someone might always be watching, so it doesn't matter if, from time to time, someone actually is. As long as you are doing nothing wrong, you are safe.

"Safe from what," you might ask. Not safe from embarrassment or performance anxiety, at the very least, not safe from exposure of what you might quaintly consider intimacies. It's an odd notion of safety that excludes the power to say, "none of your business." Even odder is the popularity among civilians of the law enforcement slogan, "if you have nothing to hide, you have nothing to fear." Virtually everyone has something to hide, including people who profess indifference to surveillance; they too engage in perfectly legal conduct and communication they prefer not to publicize.

It's hard for me to imagine that the Weberati, among others, really believe that only criminals should care about privacy, that the rest of us should trust an omniscient government to watch over us constantly and use its knowledge about our once private behaviors and beliefs justly, wisely, for our own good. I suspect that when people dismiss concerns about surveillance they're either blinded by ideology -- "all information is good information wanting to be free" -- conditioned by social media to devalue privacy, hampered by fear of terrorism and ignorance of the surveillance state's reach, or simply not thinking things through.

It's hard for me to imagine that the Weberati really believe that only criminals should care about privacy.

How else might we explain that, despite the rise of anti-government fervor, the public remains complacent about the proliferation of centralized, domestic intelligence agencies indiscriminately collecting and storing information and probably misinformation about us. Since 9/11, the federal government has funded over 70 "fusion centers" nationwide. They're supposed to focus on deterring terrorism; but, not surprisingly, they demonize dissent and subject ordinary Americans to more or less invisible and generally unregulated surveillance.

"Around the country, peaceful political organizations have been monitored and labeled as 'terrorist' groups,'" the ACLU of Massachusetts reports. "In Virginia, it was historically black colleges and universities. In Maryland, it was Amnesty International and an ardent death penalty coalition. In Missouri, it was Libertarian Party supporters. In California, environmental and labor union activism ended up in terrorism related databases." Law enforcement agents are monitoring and photographing people at public meetings, whether or not they have any reasonable basis for suspecting illegal activity. For aging veterans of mid-20th century civil rights and anti-war movements, it's déjà vu all over again, except that the government now has unprecedented technological power to obtain, aggregate, and store an unprecedented range of information about us.

But you don't have to be an activist to end up in a fusion center data base; you might be a tourist or an art student photographing buildings or bridges; you might be a public-spirited citizen photographing police misconduct. (Reason Magazine examined the general crackdown on recording police activities here.) An ACLU report (and update) on fusion centers (on which I've generally relied) cites Los Angeles Police Department policy to "gather, record, and analyze information of a criminal or non-criminal nature, that could indicate activity or intentions related to foreign or domestic terrorism." The rhetorical references here to terrorism may sound reassuring, but they do little or nothing to limit law enforcement abuses. This LAPD policy imbues police with very broad discretion to target anyone engaging in activity that slightly offends or puzzles them. Indicators of terrorist activity or intentions include using binoculars, taking measurements or notes, or taking pictures or video footage "with no apparent esthetic value." In order to deter terrorism, it seems, police officers are trusted to be art critics, as well as domestic intelligence agents.

Civilians are also exhorted to engage in suspicious intelligence reporting, military personnel are involved in intelligence gathering, in apparent violation of the Posse Comitatus Act, and so are commercial data miners. Fusion centers represent a vast public/private/military/federal/state/local and domestic intelligence apparatus, which operates in a jurisdictional morass. The centers are supposed to be subject to state privacy laws, but generally, states have avoided or ignored their regulatory responsibilities or acted to shield the fusion centers from public accountability: The Virginia fusion center is exempt from the Freedom of Information Act, according to the ACLU.  

Massachusetts has a chance to take the lead in protecting individual privacy and First Amendment rights. A Privacy and Personal Data Protection Act aimed at limiting the reach and secrecy of fusion centers has recently been introduced in the state legislature. It would prohibit data collection involving someone's political or religious views, associations or activities absent reasonable suspicion of criminal conduct, and it would afford people limited rights to access the information stored about them. Federal agents could still exempt information from state privacy requirements by labeling it classified, and whatever data Massachusetts might be prohibited from collecting could be collected by other states or by the federal government (though perhaps not accessed by Massachusetts).

But if the individual rights protected by this bill would be limited, as a practical matter, efforts to pass it could raise awareness of fusion center abuses; and passage of the bill could have significant symbolic value. Fusion centers are part of a national surveillance regime that individual states lack power to restrain and federal authorities lack will to dismantle. We can only hope that the people cease accommodating, much less celebrating, the panopticon and begin to rebel against it.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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