A New Age of Surveillance

Host: Richard D. Heffner
Guest: Jeffrey Rosen
Title: A New Age of Surveillance
VTR: 11/13/01

I’m Richard Heffner, your host on The Open Mind. And my guest today is Jeffrey Rosen, Legal Affairs Editor of The New Republic magazine and Associate Professor at the George Washington Law School in the nation’s capitol.

Now, when Professor Rosen joined me here last time to discuss what he considers the unhappy fate of privacy in America, Random House had just published his compelling “The Unwanted Gaze,” which began with the frightening story of Monica Lewinsky and Kenneth Starr and how the privacy of the one had been so violated by the other with subpoenas that may seem perfectly legal now but many of which, as my guest wrote at the time, “for most of American history … would have been suppressed as clear violations of the Fourth Amendment to the Constitution, which declares that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated.”

Well, now – following September 11th and the fears terrorism has engendered – Professor Rosen is concerned even more, particularly as he reports on the efforts to make us ever more the subjects of what he calls “A Watchful State.”

That’s the title of his recent New York Times Sunday Magazine article, characterized as “A cautionary tale for a new age of surveillance.” And I think I ought to ask my guest briefly to sum up that tale. Why do they call it that?

ROSEN: Britain is a remarkable vision of the world that we might become. In Britain cameras were installed in the 1990’s because of threats of terrorism. There was a series of IRA bombs. And cameras were installed initially around the city of London, the historic core of the city, and the promise was that there would be a magic bullet. That they would photograph the face of the license plate of everyone who walked into the city, check them against a database of suspected terrorists and only create a match if a terrorist was found. So it seemed like a perfectly tailored search. Innocent people would be spared, and only the guilty would be identified. What I found when I went there is, first of all, how quickly the cameras proliferated in places that no one anticipated when they were first installed. You see them on the backs of buses and in street corners and on street lights and even in hospitals there are … the numbers are disputed. Two point five million in the country, 300 different cameras a day photograph someone; it’s quite remarkable, just the scope of the thing. But what I learned even more is how false the promise of this magic bullet had been. Because far from only photographing suspected terrorists, the names in the databases tend to be low level thieves, pickpockets, ticket scalpers. And one has the prospect of being forced, in public places, to be scanned, identified and then matched against a database, again, not of terrorists, but the National Registry of Car Thieves. So the cameras in London are mostly used to go after low level car burglars. This is not a surprise. The reason the database has expanded is because the authorities don’t know about that many terrorists.

Terrorism, we’re often told, is the crime that has no face. And they put in the database those wrong-doers who the authorities actually can identify, which are the ticket scalpers and pickpockets. In Tampa the same thing happened. When everyone who went into the Super Bowl was scanned last August, the names in the database again were low level ticket scalpers. So suddenly we’re facing the possibility of a social transformation that couldn’t have been anticipated by the framers of this architecture, which is the presumption of anonymity in public spaces. And also the presumption of openness, the idea that we can walk through the streets without having to “show our papers” and identify ourselves and be matched against a database of our past misdeeds has been replaced by what Whitfield Diffing, the great Internet theorist, calls a “state that involves ubiquitous surveillance.”

And I was just very, I thought it was one of the most interesting subjects I’ve come across as a writer, the gap between theory and practice. And the way that the social transformation which some have compared to a fifth utility, closer to television cameras, these theorists say will join gas, electricity, sewage, and telecommunication as a pervasive inter-connected utility. The way that this is transforming British society and the way that it might transform ours, and our very different reaction to the prospect of these cameras, which is based in our unimaginably different cultures … we can talk about those differences … is something that seems to me a social and technological question of the highest interest.

HEFFNER: Now, you’re saying that the Brits accept the cameras.

ROSEN: They revel in them; they rejoice in them. The idea that I had … this libertarian American sensibility that these would be perceived as alien as Big Brother, was completely false. They’re welcome, not as big brother, but as a kindly old watchful uncle or aunt. The friendly eye in the sky, the local towns and fens can’t get enough of them. Every, every hamlet wants a town center closed circuit television station. Even when the greatest threat to public safety is mad cows. It seemed that it was a great campaign slogan for John Major, who didn’t quite get re-elected, but he got a lot of mileage out of this resonant, to me rather creepy, but politically appealing statement, “If you’ve got nothing to hide, you’ve got nothing to fear.”

HEFFNER: Okay. Let me ask you, then, the question, it’s a very simple question. The Brits have been known at times to be as concerned about liberties as we have been. Indeed, so much of our concern for liberty has stemmed from, intellectually at least, from the British. Why are they so accepting?

ROSEN: I think it has to do with their attitude toward hierarchy and social class. I didn’t realize this until after I went over there. I thought initially that the real threat of these cameras was privacy. And as you say, the Brits are, in many ways, more private than we are … in the way that they talk quietly on cell phones on trains, in their mustn’t grumble attitude, their refusal to ask meddlesome questions. But the greatest difference between us and the Brits, and Orwell, of course, captured this, not in “1984,” but in his wonderful polemic, “The English People,” is their acceptance of social hierarchy. The class system is less extreme now than it was even 10 or 15 years ago, accent discrimination is not as great, but the idea that you should “know your place,” that you should know your place and should be prepared to be identified in public is more natural to a society where people are traditionally branded on the tongue, as Orwell said. Therefore, the exclusionary, anti-egalitarian potential of this technology, for this is its real cost, the idea that it’s a technology for letting people in, but also for keeping people out; of deciding who goes here and who goes there. This notion is consistent with a nation that’s comfortable waiting in orderly lines in taxi queues, the gentleness that Orwell talked about. The obedience to authority, the deference to authority is a British quality that we don’t share at all. And, and that’s why I was not surprised that there has not been reaction among civil libertarians to these cameras in Britain.

HEFFNER: Jeffrey, that’s your analysis, indeed, your psychoanalysis and cultural analysis of why there’s been not widespread protest. But what do the British themselves say about it? Why they accept it? They accept because of the class system, I’m sure they don’t say that. What’s their reason?

ROSEN: No, of course. They say, “It makes us feel safer. We feel safer.” And you say, I say, the critics, the five critics in the country say, “but it doesn’t make you safer; there’s no convincing empirical evidence that it has effect on crime. Indeed, when crime goes up, the cameras get credit for detecting it. And when it goes down, they get credit for preventing it. And the Brits say, “We don’t care.” One gentleman said to me, vividly, he said, “I am gay. This has changed the way I behave. I might want to be intimate with my boyfriend in the public square. I won’t do that now because of the cameras. It has affected the way I behave. But, nevertheless, I think they’re a good thing because millions of people feel safer.” And this question, the feel good question is, let’s call it the false promise of greater security. The psychological balm, enough to justify the social transformation … it’s a hard question, it deserves a rich social debate. But it’s not a debate that Britain has had, because they’ve accepted these without actually considering the long term consequences.

HEFFNER: But are you now considering what goes along with the cameras more than you are considering what the official reason is and the potential for limiting IRA terrorism? Maybe not the kind of terrorism that we’ve experienced. You know, I think it not unfair to say that after you wrote the article in The New York Times there were letters in reply. Some certainly favoring what you had to say, but this one impressed me enormously. “The closed circuit television system in place in England strikes me as being invasive and potentially voyeuristic.” You had said that. “I imagine that if I lived there I would feel pretty uncomfortable knowing that I was being watched whenever I was out in public.” End of paragraph. Next paragraph. “Would I want the same system installed in my own country? You bet I would.” Signed by a lady in Atlanta. Now, this meets real needs.

ROSEN: Well, again, this is … the psychological need is disputable. Let’s imagine the cameras had no effect on crime.

HEFFNER: You wouldn’t dispute it from reading this letter.

ROSEN: Well, this woman says it makes her feel safer. Yes, I’m granting that. But let’s imagine that that feeling is not based on reality. That in fact there’s no effect on terrorism, so people are fooling themselves. Then you could … that’s an important question, whether the feeling of security is enough to justify the false promise.

HEFFNER: Why do you say, by the way, with such certainty, it has no effect. You say terrorism is the crime without a face. Yes, we could have, presumably … we’re very critical now of the FBI and of a number of our other agencies in this country for not recognizing something about the men who got on those planes on September 11, 2001.

ROSEN: We do know it hasn’t directly led to any arrests in terrorism cases. And the people in the city of London who installed the technology to catch terrorists say they haven’t arrested a single terrorist. Might it have been a deterrent? Perhaps. There continued to be IRA attacks since the cameras have gone up. Studies of the effects of the cameras on other kinds of crimes suggest they tend to be good at deterring some kinds of crimes, but not others. They displace car thieves in parking lots, but they have little effect on rape and murders. So, again, it’s an empirical question, what the effect is. There’s no doubt it can be a useful tool in detecting crime retrospectively, used as one of several methods of investigation; the cameras did help find the Brixton mail bomber. So that I’m not all suggesting that this is … without any effect at all.

HEFFNER: How would it? What is the rationale for using it in this country in terms of terrorists?

ROSEN: Well, the claim would be in airports, for example, that’s the place where they’re now being installed by bio-metric surveillance companies like Vizionics whose stock has risen dramatically in the wake of the attacks. That you’d walk up in the airport and everyone would be surveiled and compared against the national watch list of suspected terrorists. If there was a match, the camera would go on and lead to further surveillance and might justify a stop. If not, there’d be “no match, no memory.” And people could go on their way, and this would be a remarkable and enlightened alternative to racial profiling.

If the cameras worked in the way I’ve just described, I would say that they were the quintessential example of the reasonable search under that wonderful Fourth Amendment language you began by quoting, the innocent are spared, the guilty are seized with laser-like precision. It has none of the spillover effects of reading intimate diaries that we talked about last time. And it could be held. It looks very much like … imagine, as we think about surveillance post September 11th, that model of the reasonable search could be expanded to other technologies.

Imagine an anthrax detector that could look into each letter and only alert when it saw the anthrax, but not read the intimate ravings of the terrorist that were used in the note to enclose it. That would be a reasonable search. What Britain’s experience shows to me is that this hope of technological perfectability, this hope that this technology can be architected in a way that just focuses on the guilt and spares the innocent is a lie, in the wake of the reality of politics. In Britain none of those factors actually applies. The database is broad, not just the terrorists, but it includes the innocent people. The records are kept for a long time, so that people in divorce trials can surveil exactly where someone’s been going at different points in the system. And far from having no human discretion, human monitors behind the cameras are actually voyeuristically zooming in on woman and on people with dark skins. So the real question that we have to think about in light of your challenge is … am I being a Luddite? Or in the words of my friend Larry Lessig, the great Stanford cyberspace theorist, who’s a champion of these technologies and anti-Federalist, he says, and many, perhaps maybe most would agree with him, these technologies are going to proliferate. It’s foolish to pretend they won’t. The only question is how to tame them, how to architect them in ways that both protect privacy and security at the same time.

HEFFNER: Don’t you agree with that?

ROSEN: Well, the challenge is just right. I’m not convinced that they’re inevitable. I think when we get to the question of cameras, there is a remarkable coalition in Washington, which joined the ACLU and my new best friend Bob Barr of Georgia, the firebrand from …

HEFFNER: The Liberal.

ROSEN: No Liberal he. Which it proved in the terrorism bill so that it didn’t include a lot of the law enforcement expansions that the government had asked for. And of course, before September 11th, there was a strong constituency against the cameras. I’m not … what I don’t like about Lessig’s notion is … we don’t want to be technological determinists. I don’t think it’s inevitable that there be cameras, bio-metric surveillance cameras in Times Square as the former Chief of Police, Safir, proposed in the wake of September 11th. That’s a choice, a political choice that has to be made. And, and I … my sense is that Americans’ distaste for these technologies that they might be limited to airports, but not put up in momuments.

HEFFNER: Would you accept them limited to airports?

ROSEN: Well … ah … ahem … oh … why do I stutter …

HEFFNER: (Laughter)

ROSEN: … because …

HEFFNER: (Laughter) … I don’t know.

ROSEN: … because I’m not convinced that in airports, in fact I’m also certain that in airports they will not be limited in the ways that the architects are claiming.

HEFFNER: But now, wait a minute, wait a minute. Fair is fair. What you’re saying is that you don’t believe that what the Founders wrote about reasonable search was reasonable because there could never be reasonable search given the nature of human nature. Isn’t that what you’re saying?

ROSEN: On the contrary. Exactly on the contrary. And here’s what gets to the nub of the question. The Framers’ conception of reasonableness was based in human discretion, the idea that judges or prosecutors would balance the invasiveness of the search against the seriousness of the crime. The new technologists, these technological meliorists, say that discretion can be eliminated by these magic technologies that can be architected, constructed in a way that eliminates the invasive dangers of surveillance. So they point in airports to the body scanners that are now constructed in a way that can take anatomically correct pictures of our bodies in the search for weapons. They say these technologies could be constructed better to jumble up the different parts of our bodies so a modest blob, rather than an embarrassing anatomically correct picture, would be constructed. And they say this would eliminate the need for human discretion; you wouldn’t have to have people behind the cameras who could embarrass us. If the technologies were architected and operated in precisely the way that my friend Lessig and his sympathizers suggest, these rationalists, these progressive, these experts … I would indeed embrace them as they’re described. They would indeed be the magic bullet, the reasonable searches that the Framers envisioned. And I’m …

HEFFNER: Are you saying that’s impossible?

ROSEN: I’m so pessimistic in light of human nature, of politics, of political pressures … so wary of the dangers of these technologies, so unsettled by the fact that I can’t point to a single country in which these technologies actually have been architected in these ways. Think about the national ID card, which is very much in line with this question. Alan Dershowitz, no less rather glibly in The New York Times, embraced them because he suggested, well, they could be constructed in a way that they didn’t have an invasive database and they could let me get through airports more quickly. Isn’t it relevant that not a single country that has embraced this card, from Sweden to Germany to Turkey, has actually limited the database in the way that Dershowitz describes. And shouldn’t we be concerned about the invasive possibility of a world where one would have to show one’s papers, be compared against a database of a failure to show up for a traffic ticket in the past.

HEFFNER: But Jeffrey, Jeffrey, back two centuries ago, and more, there were those who said, “Let this wild spirit, this democratic spirit prevail.” And there is no way in which a people cursed by the nature of human nature will run their country in a decent, constructive way. And I don’t think we’ve done so badly. Why won’t you give this a chance, particularly in terms of the threats we face. The woman who wrote this letter, the people who feel the way you describe the Brits feeling. They’re responding to understandable human needs. They need to be safer than we are now sitting at this table here in New York. They need to be safer than they were, or are in England in terms of what had been the IRA threat.

ROSEN: I think you phrase it so well, and it really gets to the deepest questions of political theory of the nature of America, of exactly what kind of people we are. My thought would have been that this has not been a country based on deference to government authority and optimism about human nature. It’s tried to defuse power and has been deeply sensitive to the dangers of a surveillance state. So I’m not … we’re just beginning this remarkable debate.

And I think I … both of us might even be open to persuasion about different aspects as we continue to talk about it. Why not try it in airports if you … since you press me. There’s a good test case. We can see if it can be architected in this way that it’s been promised. And we can try to combine technological choices with legal choices because, after all, we’re talking about a cascade of law making that would be necessary to regulate these technologies if they’re installed.

Think of all the questions that Britain has shirked, and this is … enhances my pessimism. In Britain these technologies are essentially unregulated. Because all of those great Fourth Amendment common law principles that we inherited from Britain have been whittled away often in the 20th Century by pro-terrorism bills, often in the face of a government which is not checked … it’s a unitary executive and basic protections … like, for example, the requirement that there be some level of individualized suspicion before you can single out an individual for surveillance and engage in dragnet searching of him or her as he or she goes through the London subway system does not exist in Britain. So in Britain soon it will be possible to single out any individual, back click on the images of everywhere they’ve come from, forward click to see where they’ve gotten to. Even if there is no particular cause to suspect them of an individual crime.

In America, if we’re to avoid that prospect with these cameras being installed, we need to specify under what conditions can someone be surveiled? How long can records be kept? Who is in the database, precisely? And under what conditions can human monitors zoom in on them? There’s just a whole series of legal choices that would have to be made and you would … and we would have to be optimistic in this atmosphere of fear and uncertainty that Congress was actually ready … cared enough about the privacy implications to actually be ready to make them.

I could easily imagine a situation where the cameras were installed, and as in Britain the people ask … “Who’s in the database?” And we’re told, “Well, that’s just a matter of national security. Don’t bother about that.” I guess my concern is fueled by the fact that this is an extraordinarily complicated series of choices that the country would be asked to make. The technological choices are complicated and hard to explain. The legal choices are extremely complicated and all in the guise of heading off a rather elusive threat. I believe it’s a real threat … it means the social transformation of a liberal society. But it’s hard to explain in a sound byte.

HEFFNER: The sound byte we don’t need. So my talking about spitting against the wind will certainly not suffice. But if you stand outside with your side, with your extremely sensitive concern for liberty, your extreme concern for the traditions of the law in this country – and I was looking back over our transcripts of our two programs before, and I must say, when you talk about some mutual change of heart or of mind, I felt that way reading you, because I understood then, perhaps as I hadn’t even understood as I read the book, what it is you were talking about. You’ve been burned by Ken Starr, you’ve been burned by what has happened in the past century to an older ideal. But if you’re not there, if you don’t participate, if you, if you fight against the whole business, where are the controls that you ask for going to come from? Where in the world?

ROSEN: Well, that’s just right, it would be foolish and ill advised just to refuse to participate, to be a Luddite. On the contrary. But this conversation is the beginning of the debate that I mean to have.

HEFFNER: Is it going on in Washington?

ROSEN: No, not now.

HEFFNER: Why not?

ROSEN: People have other things to worry about, like the daily conduct of the war, like the latest airline crash. But to be more optimistic, what happened to the terrorism bill was not a bad thing. My civil libertarian knee, as you know, jerks more vigorously than anyone’s, but the final bill was not the end of liberty as we know it. It was a very productive conversation, joined by Liberals and Conservatives. That took out the most extreme proposals, like the proposal to have secret searches without notice. The more extreme definitions of computer trespassing and reach some kind of compromise. There are still troubles with the bill, and I’m not at all convinced that it will necessarily lead to far greater security. What it fails to do is strike the balance between the seriousness of the search and the invasiveness of the crimes. And there are some crimes that it defines as terrorism, forms of computer trespassing … if you download a copyrighted file without permission, an Internet Service Provider might give the government permission to surveil all of your e-mail and web browsing habits, without notice. That’s not a good example of the tailoring I’m talking about.

HEFFNER: In the one minute or so we have left … what are the definitions now of Liberal and Conservative in this great debate? Or in the debate you want to see take place?

ROSEN: I would think that a Liberal was a Liberal in the classical sense, which would include a libertarian as well as a traditional Liberal, and it would be someone who was sufficiently suspicious of state power and concerned about the effects of surveillance to want to limit it technologically and liberty and preserve the choice of the individual to decide how much of himself or herself to reveal to the state. And a Conservative would be less suspicious of government power, more willing to grant broad powers of surveillance in the interests of securing protection against terrorism.

HEFFNER: Are you totally pessimistic about the outcome of this exchange?

ROSEN: No, I can’t be, because I was so heartened by the instinctive suspicion Americans have. Their allegiance to privacy. That’s why I love the British example. We care about these things more passionately than anyone. It really is in our blood. So I want to maintain that optimism, and after this conversation I’m all the more energized to begin the conversation trying to remember the dangers, but hopeful that the architectures can be arranged in ways that might protect us.

HEFFNER: Jeffrey Rosen, I think that that’s the point at which I, I know I have to say that’s all the time we have. I hope you’ll come back again and again and again and that we two, whatever side down deep we really feel the most about, that we can exchange views on this subject.

ROSEN: I look forward to it.

HEFFNER: Thanks for joining on The Open Mind. And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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