Doing Bad, By Doing Good

GUEST: Gary T. Marx
VTR: 10/15/1988

I’m Richard Heffner, your host on THE OPEN MIND. As happens so often, a colleague at Rutgers directed me to a book the other week. A good title: Under Cover. An interesting subject: police surveillance in America. Underwritten by the prestigious 20th Century Fund. Published by the University of California Press. Even a “good read”. But what I hadn’t expected was to have it quite so literally, quite so forcefully overwhelm me with its provocative insights not just into police undercover work in near-21st-century America, but also into what modern surveillance techniques generally signal about our nation’s changing patterns and perceptions and evaluations of private and public morality, of privacy, of social control.

Perhaps one could say that in America’s early years – our small-nation period with its quite natural premium on personal independence, and without today’s technical means of intruding upon individual privacy and of controlling masses of people psychologically or physically – perhaps then we just came naturally as a people to an abhorrence of social controls, and institutionalized that abhorrence into what we did and surely what we said about ourselves as a people: no police state here on these shores. No official snooping. No governmental surveillance of my activities or of yours.

Besides – and perhaps most important – the need for such controls wasn’t there. With its frontier traditions, ours was in its way a violent nation. But essentially a safe one; not now, however, not safe from crime or terror or a threatening interdependence of often hostile nations. Now we are so much more at their mercy…though armed, too, with the technological and organizational means to identify these threats to the good life, even to control them. So that how we use these means, and whether they justify our ends: these questions must inform our discussion today of this stunningly provocative book: Under Cover: Police Surveillance in America.

And I want to ask its author, Gary T. Marx, Professor of Sociology at the Massachusetts Institute of Technology, to elaborate on his statement that in starting his book he said, “I viewed undercover tactics as a necessary evil”. No strike it, he said as “an unnecessary evil”. But, in the course of his research he had concluded, however reluctantly, that, indeed, in the United States they had become a necessary evil”.

But that’s unexpected from a card-carrying academic, and I want to ask Professor Marx if it doesn’t at least start us down what may become the slippery slope to a maximum security society? Professor Marx, what about it?

Marx: Thank you, Dick. Well, it’s very well put. I think there are always tradeoffs, there are always risks. When I began the study I drew on my experience as a student and a teacher at Berkeley during the 1960s, and at that point I was active in a group called CORE that was concerned with integration. It was non-violent and we worked hard peacefully demonstrating and also raising funds. And after one particularly intense fund raising period we came to our Wednesday night meeting expecting to tally up the proceeds and were shocked to find out that our treasurer was not there. It turned out that she was a police agent, she had disappeared with our funds. That along with a number of other revelations about police infiltration created, in me, the feeling which was also consistent with American traditions of an abhorrence of secret police, of covert kinds of activities. But something has changed, some of the factors that you mentioned in respect to the interdependence in society, and also the ways in which the tactic is now being used. When Hoover died the FBI shifted its attitude toward undercover tactics. Most people don’t realize this, that during, that Hoover first was brought in as a reformer and there are wonderful quotes where he promises never to use undercover tactics because they’re too reminiscent of European police states. The infiltration that the FBI engaged in was primarily through using informers, using citizens, not agents. Hoover thought it was too risky to do. But when Hoover died a number of changes occurred, and one was that the FBI, to some extent, redefined their priorities. Rather than dealing with bank robberies or auto theft, they came to focus on more serious kinds of offenses, particularly those involving white collar crime. Now we’ve seen many new laws passed for example, to control pollution, to protect endangered species, and you can only deal with offenses of that nature by becoming a party to them. We also see the great concern over street crime that appeared in the late 1960s and through the mid-1970s. And their undercover tactics can be very effective. For example if there is a crime pattern, say nurses are being attacked in a parking lot as they leave their late night shifts, then it’s very appropriate, I think, to have an undercover police officer wearing, posing a nurse to go and see if she can be…can invite an assault with other police waiting in the wings. I think also with respect to political corruption, the undercover tactic can be very powerful. One of the problems with a crime like corruption, of course, is that it’s not clear that…who the victim is although we’re all victimized. We may not know about it.

Victimization is defused and it’s often only by…or often only by becoming a party to a crime and videotaping it to boot that the public interest will be served. You can list a number of kinds of offenses where the tactic is certainly appropriate. Another good one has just to do with something like taxicabs where particularly large cities that have many foreigners coming in, taxicabs, unfortunately, sometimes take advantage of people. And one way to deal with that is to have a police agents pretend to be tourists, get in the cab, they know exactly what the fare is from the airport to downtown and then they see whether or not cab drivers charge the appropriate amount. One recent case in New York City, twenty out of fifty cab rides ended up with exorbitant charges. The cab drivers, in fact, then were arrested and subject to various kinds of sanctioning. So I think in the case of consumer issues which we’re all very concerned with, the tactic can certainly be appropriate. The key thing, of course, is bounding it, is having it be done by people who are well-trained, carefully chosen, well-supervised and have always realized that there is a grave risk in that the cure may well end up being far worse than what you’re trying to address with it.

Heffner: Yes, but I don’t want you to cop out on that.

Marx: Yes.

Heffner: Really.

Marx: Yes.

Heffner: I mean to say as you did at the end, “well maybe the cure can be worse than the disease”

Marx: Sure.

Heffner: …I mean don’t you and don’t we all, individually, have to make a choice whether these means are justified by the ends that you elaborate upon. I mean you don’t want to draw a white herring across this trail, it’s too important a question.

Marx: Right. No, I think it’s like certain very dangerous kinds of surgery where we may conclude that under appropriate conditions the surgery is necessary.. The key thing is to specify those conditions. What I tried to do in the book was to indicate on the basis of my research of both local police departments and Federal agencies, what it was that I felt had to be there before in fact the tactic could be used, and I…

Heffner: Yes, but you know, again I must say to you that I’m puzzled because this is a, it really is a stunning book because it makes you think about problems that I think otherwise don’t come before our…come to our attention, and when I say drawing a white herring, I mean you mentioned all of the instances in which probably most of the people who are watching us now would agree that’s a legitimate use of undercover surveillance, the other one is a legitimate use, etc. but you make such an important point here where you talk about the sub-societies that compose a maximum security society where you say in a sense if we do all these things, at least that’s the way I read these pages, we are in danger of letting those means bring us to ends that are rather horrendous and that you seem at times to be saying, “I don’t’ trust our society to use this power consistently in the right way because the power seems almost necessarily to corrupt” now…

Marx: Not necessarily corrupts. But first of all I would separate out the undercover tactics from a variety of other forms which I call the “new surveillance”.

Heffner: Sure.

Marx: Forms involving drug testing, based not only on your urine, but on a strand of that lovely hair of yours; drug testing based on the movement of your eyes; video cameras that can record everything, not only on public streets, but in restrooms and in employee lounges; computer dossiers, a variety of hot lines for reporting everything, whether you’re going to report your children using drugs, your children are going to report you using drugs; I think in Connecticut there’s a line for reporting poaching. In the state of Washington there’s a hotline where citizens can call in and report people who are littering or people who are driving in a lane on the freeway that is reserved for buses or for car pools. The book deals with undercover police but that’s really more a vehicle to get at something more general, and when I responded to your question I was responding to certain uses of the undercover tactic, and if I separate that out and see that as part of something more organic, something larger than, I think, I do have a number of concerns which you correctly picked up in reading the book.

Heffner: Is it fair to say that perhaps you’re establishing your credentials by saying, “okay, undercover surveillance this has important uses” and you don’t see that it is necessarily starting us down the slippery slope. Having said that you legitimate your role in saying “Let’s look at all these other things that may lead us to maximum security society.”

Marx: That’s correct, but let’s also look at how to do undercover work in such a way that it doesn’t, you know, lead us on that slippery slope, that it doesn’t expand, that you don’t have the domino kind of effect. In general, I think we should probably have less undercover work in the United States because the capability simply isn’t here, particularly at the local and state levels. And I think it’s important when we consider the means and ends issue that you refer to, to realize that more is at stake than simply obtaining an end. Americans are pragmatic, at the same time I think the genius of our system is that we care about means, that process is somehow very important, and the notion of efficiency should not be our only goal. And even if tehs3e things worked, there are other costs to it. And I think, unfortunately, in a society that’s dominated by the perspective of lawyers and economists, you tend to get two points of view in evaluating public policy. One is, is it legal? By and large, undercover activities as done in the United States are legal and to some extent, with certain qualifications, they tend often to work, as do some of these other surveillance technologies. But just because something is legal and it works, doesn’t mean that it’s wise to do it because it can change the nature of the society that you have.

Heffner: But, Professor Marx, if you take your explanation of why you once felt that it was an unnecessary evil, the undercover surveillance…

Marx: Sure.

Heffner: …and have come to feel that it’s an evil still, but a necessary one, wouldn’t that explanation, I won’t call it a rationalization, wouldn’t that rationale…

Marx: yes.

Heffner: …fit for drug testing, for AIDS testing, for wire-tapping, for almost all of the chambers of horrors that you list in this book as building up to a maximum security society?

Marx: I don’t think that that justification is necessarily there, I think you have to take it on a case by case basis. I think most of the things, the, the techniques that we are aware of are not things that will be abolished by the society. They’re sort of facts on the ground, they’re fait accompli. They’re there and perhaps it we were starting over and building a different kind of society, one would want to affect the culture, affect the laws in such a way that these things wouldn’t have the foothold that they have.

But I think with the kind of economic system that we have, with the great concerns that are there, whether it’s health concerns, whether it’s concern over crime, whether it’s concern over terror, there is a demand to do something. And academics can write books and, you know, use quotations that say nice things, but in fact there’s a real world out there that wheeling and dealing and that to a significant extent runs according to principles of the dollar and I think it’s that set of concerns that’s there, that drives this. I don’t think that most of these things are like nuclear weapons where I would say categorically without a ban abolish nuclear weapons, they just shouldn’t be there. Most of these things there are multiple sides to them, and I think as an academic I’ve tried to listen to what, you know, the different sides are saying. Of course as a human, as a person, as a citizen, I have my own concerns. I think there are choices and there’s no free lunch. And it’s easy for privileged people to say, “well, we really…” and here I’m being devil’s advocate in reversing the kind of libertarian position that I think you’re taking. Those of us who are relatively privileged, it’s easy for us to ignore the kinds of everyday concerns that people have who are a lot involved with public transportation, worry a lot of about crime, who are concerned about the nature of benefits and so on.

Heffner: Look, I don’t want to…

Marx: Well do it, please.

Heffner: …take that position, but I..When you said before “let’s do it on a case by case…

Marx: A method by method.

Heffner: All right.

Marx: the polygraph I would agree in general ought to be out, and there is Congressional legislation to that effect now, we’re moving in that direction. But many of the other kinds of things, I don’t know. I’ve written against drug testing and I’m very worried about categorical drug testing, but the notion of testing selectively people work in nuclear facilities or people who are involved with transportation, I don’t have the same feeling about that as I have when I read in the newspaper that all seventh graders in a Texas town are going to be tested and if they don’t pass they can’t be in the band, they don’t do extracurricular activities.

I would kind of limit it. I would put conditions around it. I’m worried about throwing, you know, the whole thing out, as I am about unleashing the whole thing.

Heffner: Well but, you know you can’t have it both ways it seems to me. If you have to make a bet, what’s your bet as to what will happen if we begin to acclimatize ourselves to this notion of further and further invasions upon what used to be privacy and stick your nose out of my business.

Marx: Yes. Well I think we may well have a safer society, a more competitive society, a physically healthier society, a society where people were less willing to take risks, a society where people didn’t feel free and it would certainly not be a society that I would choose or I would vote for. Again, when there’s a social science, there’s a science part of it and that science part communicates the idea that we really ought to try and be objective in our analysis, as objective as we can be. And what I’m doing in the book is two things, and maybe it’s tricky. First I’m saying “here’s what’s going on. Here’s what I think is happening. Here are the social trends that I see” and someone at one level can say, “well, you’re right or you’re wrong, or there are other things going on”. A second role to play and social scientists, unfortunately, get uncomfortable playing this role, and that is to take a moral position. And when I take a moral position it gets complicated. There’s a wonderful line from Tolkien, you know, Lord of the Rings, where he says, “go not to the elves for advice for they will say both yes and no”. I think a little bit you get that with academics who have the pretention of still trying to be social scientists, or trying to be observers who try and listen to what it is that’s being said. But I’m not willing to unleash it, nor am I willing to, in general, categorically ban it. I’m not troubled when there is a video camera in a public square. I’m not troubled when I came up here, a little troubled, and I saw a sign that said “There’s a video camera in the elevator”. I am troubled when I go in to a changing room in my department store and I see a hidden video camera, I’m not told that there’s a video camera there. I am troubled when I read that there are video cameras in restrooms in some instances. So again, it’s a question of how it’s done.

Heffner: You’re saying that it’s a matter of how it’s done and it’s a matter of degree.

Marx: It’s a matter of degree. It’s also a matter, I think, of public consciousness, a matter of public debate. I don’t presume to sort of speak, you know, for broad society and to issue ultimatums, “well we ought to do it this way, we ought to do it that way”. I’d rather say “here is what’s at stake, here’s sort of what I think”. One of the things that I did find in doing the study, and I was fortunate to have the cooperation of Federal agencies which surprised me in some ways because I had previously been involved with Congressional committees that had been critical of undercover practices and of surveillance practices. And I came in with…I was surprised by what I found, that people were concerned about many of the issues that I was concerned about. They had tried to design policies to minimize problems, and they were constantly seeking ways to be on their guard, particularly at the Federal level.

Heffner: But you know that’s the, that’s…forgive me…

Marx: Sure. Please.

Heffner: And it seems to me again, you have it both ways because I asked you before what kind of bet that you would make. What kind of bet would you make when…you have this wonderful section here, in your wonderful book, you say “important American values are increasingly threatened by the permanence and accessibility of computerized records”. You’re not saying here, “do we keep good ones, do we keep bad ones”, you’re talking about computerized records, “the idea of starting over or moving to a new frontier is a powerful concept in American culture”. And what you’re saying here is that idea goes by the boards, in a very real sense, because the seeming inevitability of what this serpent in the garden…

Marx: Yes.

Heffner: This technology…

Marx: Yes.

Heffner: …enables us to do. Now that seems to be a fairly all-out devastating critique.

Marx: Well, yes I’m not sure it’s either/or. I think there are trends and tendencies, but there are also counter-tendencies and I think again, apart from what I personally may think about this, there is the reality out there and the ways in which the information technology is changing our society. I think there’s always variation, and there probably are good and less good uses of record systems. There are some record systems where you have a high degree of confidentiality, where it’s very hard to break into the system, where the people running those systems have incentives to keep the data current, to obey the law, and where there’s both self-policing, and external policing, and in those situations I’m not

Troubled by the records. We now prohibit gathering certain kinds of information such as about gender, about race, some aspects of lifestyle, and maybe there should be other kinds of information as well that should not be contained in databases, but again I don’t see it as somehow pulling a plug and stopping the whole thing.

Heffner: Why not?

Marx: Where’s the political power going to come from? Privacy is more or less a dead issue in the United States, I think, aside from small coteries of people who often are concentrated around universities and the mass media, so we get a sense that it’s a bigger issue. Now there was something very exciting that happened in 1986 and that was the 1986 Electronic Privacy Protection Act. And all kinds of groups from the Left and the Right came together to extend to computer communications, to extend to phone communication that is sent not over a wire, which was the kind of protection we had from 1968, but which went up in the air through satellites or microwaves, those are now protected. But the reason that happened was that the companies that are in the data, in the communications business, wanted…saw privacy as something they could sell. So they bought their enormous power together and that Act was passed. But lots of other acts die and they have not been passed. Doomsday scenarios, you know, they’re kind of glamorous, you get a certain drama out of them and people respond to them and they’re provocative, and there’s I think, a role for that kind of polemic. But when I look at it, again as a kind of social scientist, my initial concern was to say “look, here’s what it is that I think is going on” and I’d hope that the book might be judged, initially, with respect to what aim? Right tor wrong about the patterns that I see. In terms of my own values, yes, it scares me a lot, but I don’t see any easy solution. I could give you lots of examples. I imagine living here, in New York, that you may well take the subway or the train home tonight, and I know you want to get there safely. And many people, are you willing to trade the possibility that the person driving that train will be stoned for the other side of it which is the liberty. You may well have grandchildren. We want children in schools to be taught by people who will respect their integrity. I have a car, I drove across the country this last summer and I was a bit concerned by some of the driving that I saw on the part of truckers. One of the big concerns has been that people can drive trucks in an unsafe way, have a license lost in one state, and simply go to another state. Now there’s a national database for unsafe drivers. I think that’s good. We also saw an announcement where medical records of doctors and records of censoring doctors are going to be gathered in Washington, so that a doctor can’t get in trouble in one state and then move to another state. I can give you lots of examples of how there are positive aspects of this.

Heffner: Look, we just have a few minutes left, three or four minutes left, but I want to make the point that what you’re talking about is once again something that I’m basically asking you, is it essentially all over because you and I…

Marx: Yes.

Heffner: …have values, and I’m not talking about the privacy values now. The questions you asked, “Do I want to endanger myself, my wife, my children on that subway tonight?” or in the car you drive. And you know that the answer is “no”, but if the answer is “no”, don’t we have to face the consequences of who we are and what we are and what we’re capable of doing in terms of this information revolution and recognize that there is really a trans-valuation of values and stop kidding ourselves and saying “we don’t have to go all the way” because when you start down that slippery slope, nobody says you shouldn’t have started it, given the good things we can accomplish…

Marx: Yes.

Heffner: …but there it goes, the old days are over.

Marx: Oh, I think the old days are over, but I don’t see it as being something like being pregnant, you know, where either you are or you’re not. I mean I think there are degrees of it, and I think through the media, through concerned people in Congress, through concerned public interest groups that these things can be attended to, that reasonable protections can be developed.

Heffner: You think we can have all of these abilities, and protect against…

Marx: Well, I think you have to have a dream, you have to believe, you have to act, you have to do the best you can with what you’ve got. Ad what I hear you saying is a kind of Luddite point of view where, you know, “throw the whole thing away because it’s just going to lead to change”. I’m in a funny position, you make me be an advocate, that’s not the role I usually play.

Heffner: No, no, no. don’t misunderstand me. Luddite, never, because it doesn’t work…

Marx: Yes.

Heffner: …as you have suggested. But a recognition of where we are and where we’re going, not to turn the hands of the clock back, but to understand a certain kind of phase of human history, has fast come to an end.

Marx: Sure. Sure, that’s right. We have to revise our notions of privacy, we need new concepts for thinking about these things. We need new laws and I think public awareness is terribly important. I mean people are often so differential, and we’ve all been hassled by someone on the phone who says, “But the computer says…”, but the computer says it only because people have programmed it in such a way. There are a couple of points I want to make, you say we’re running down.

Heffner: Please.

Marx: There are three short…two stories, actually I’ll tell which indicate the concerns that move me. It’s said by culinary artists that if you are cooking lobsters or if you’re cooking frog, if you put them in hot water, big pan on the stove, in the pot, in cold water and you slowly turn up the heat. I think that’s the kind of situation we’re in now. That by accretion, by this variety of techniques, whether it’s computers, whether it’s drug testing, whether it’s genetic screening, whether it’s undercover, things are moving, very slowly, but we may well wake up to a very different kind of situation.

Heffner: In hot water, you mean.

Marx: In very hot water, indeed. The second story…

Heffner: In one minute.

Marx: In one minute. Is about three social scientists who are about to be guillotined in the not-too-distant future, and the first is lead to the block and the rope is cut and nothing happens. And she looks up and says, she’s a religious person, “it’s a sign from god” and is let go. The second is a political activist and he’s lead and the rope is cut, nothing happens. And he says, “it’s the will of the people” and he’s let go. And the third is lead and that person is a social engineer, and as his head is put on the block, he looks up and he says, “Hey, wait a minute, I think I can fix that”. The there, of course, being that all problems don’t necessarily have to be fixed.

Heffner: Sounds like Charles Murray. But thanks very much, today, for joining me in this discussion of this incredible book that you’re just written Under Cover: Police Surveillance in America and a lot more, Professor Gary Marx.

Marx: Thank you.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck.”

Continuing production of this series has generously been made possible by grants from: The Rosalind P Walter Foundation; the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; the Richard Lounsbery Foundation; Mr. Lawrence A Wein; and the New York Times Company Foundation.