John & Nisha Whitehead
“We live in a surveillance state founded on a partnership between government and the technology industry.”
Law Professor Avidan Y. Cover
In this age of ubiquitous surveillance, there are no private lives: everything is public.
Surveillance cameras mounted on utility poles, traffic lights, businesses, and homes. License plate readers. Ring doorbells. GPS devices. Dash cameras. Drones. Store security cameras. Geofencing and geotracking. FitBits. Alexa. Internet-connected devices.
There are roughly one billion surveillance cameras worldwide and that number continues to grow, thanks to their wholehearted adoption by governments (especially law enforcement and military agencies), businesses, and individual consumers.
With every new surveillance device we welcome into our lives, the government gains yet another toehold into our private worlds.
Indeed, empowered by advances in surveillance technology and emboldened by rapidly expanding public-private partnerships between law enforcement, the Intelligence Community, and the private sector, police have become particularly adept at sidestepping the Fourth Amendment.
As law professor Avidan Y. Cover explains:
A key feature of the surveillance state is the cooperative relationship between the private sector and the government. The private sector’s role is vital to the surveillance both practically and legally. The private sector, of course, provides the infrastructure and tools for the surveillance… The private sector is also critical to the surveillance state’s legality.
Under the third-party doctrine, the Fourth Amendment is not implicated when the government acquires information that people provide to corporations, because they voluntarily provide their information to another entity and assume the risk that the entity will disclose the information to the government.
Therefore, people do not have a reasonable expectation of privacy in their calling data, or potentially even their emails. As a result, the government does not normally need a warrant to obtain information transmitted electronically.
But the Fourth Amendment is not only a source of protection for individual privacy; it also limits government excess and abuse through challenges by the people. The third-party doctrine removes this vital and populist check on government overreach.
Critical to this end run around the Fourth Amendment’s prohibitions against unreasonable searches and seizures by government agents is a pass play that allows police to avoid public transparency requirements (open bids, public meetings, installation protocols) by having private companies and individuals do the upfront heavy lifting, leaving police to harvest the intel on the back end.
Stingray devices, facial recognition technology, body cameras, automated license plate readers, gunshot detection, predictive policing software, AI-enhanced video analytics, real-time crime centers, fusion centers: all of these technologies and surveillance programs rely on public-private partnerships that together create a sticky spiderweb from which there is no escape.
As the cost of these technologies becomes more affordable for the average consumer, an effort underwritten by the tech industry and encouraged by law enforcement agencies and local governing boards, which in turn benefit from access to surveillance they don’t need to include in their budgets, big cities, small towns, urban, suburban and rural communities alike are adding themselves to the surveillance state’s interconnected grid.
What this adds up to for government agencies (that is, FBI, NSA, DHS agents, etc., as well as local police) is a surveillance map that allows them to track someone’s movements over time and space, hopscotching from doorbell camera feeds and business security cameras to public cameras on utility poles, license plate readers, traffic cameras, drones, etc.
It has all but eliminated the notion of privacy and radically re-drawn the line of demarcation between our public and private selves.
Over the past 50 years, surveillance has brought about a series of revolutions in how governments govern and populations are policed to the detriment of us all. Cybersecurity expert Adam Scott Wandt has identified three such revolutions.
The first surveillance revolution came about as a result of government video cameras being installed in public areas. There were a reported 51 million surveillance cameras blanketing the United States in 2022.
It’s estimated that Americans are caught on camera an average of 238 times every week (160 times per week while driving; 40 times per week at work; 24 times per week while out running errands and shopping; and 14 times per week through various other channels and activities). That doesn’t even touch on the coverage by surveillance drones, which remain a relatively covert part of police spying operations.
The second revolution occurred when law enforcement agencies started forging public-private partnerships with commercial establishments like banks and drug stores and parking lots in order to gain access to their live surveillance feeds.
The use of automatic license plate readers (manufactured and distributed by the likes of Flock Safety), once deployed exclusively by police and now spreading to home owners associations and gated communities, extends the reach of the surveillance state that much further afield.
It’s a win-win for police budgets and local legislatures when they can persuade businesses and residential communities to shoulder the costs of the equipment and share the footage, and they can conscript the citizenry to spy on each other through crowdsourced surveillance.
The third revolution was ushered in with the growing popularity of doorbell cameras such as Ring, Amazon’s video surveillance doorbell, and Google’s Nest Cam.
Amazon has been particularly aggressive in its pursuit of a relationship with police, enlisting them in its marketing efforts, and going so far as to hosting parties for police, providing free Ring doorbells and deep discounts, sharing “active camera” maps of Ring owners, allowing access to the Law Enforcement Neighborhood Portal, which enables police to directly contact owners for access to their footage, and coaching police on how to obtain footage without a warrant.
Ring currently partners with upwards of 2,161 law enforcement agencies and 455 fire departments, and that number grows exponentially every year. As Vice reports, “Ring has also heavily pursued city discount programs and private alliances with neighborhood watch groups.
When cities provide free or discounted Ring cameras, they sometimes create camera registries, and police sometimes order people to aim Ring cameras at their neighbors, or only give cameras to people surveilled by neighborhood watches.”
In November 2022, San Francisco police gained access to the live footage of privately owned internet cameras as opposed to merely being able to access recorded footage. No longer do police even have to request permission of homeowners for such access: increasingly, corporations have given police access to footage as part of their so-called criminal investigations with or without court orders.
We would suggest a fourth revolutionary shift to be the use of facial recognition software and artificial intelligence-powered programs that can track people by their biometrics, clothing, behavior and car, thereby synthesizing the many strands of surveillance video footage into one cohesive narrative, which privacy advocates refer to as 360 degree surveillance.
Finally, Wandt sees autonomous cars equipped with cameras that record everything around them as yet another revolutionary expansion of surveillance to be tapped by police.
Yet in the present moment, it’s those public-private partnerships that signify a watershed moment in the transition from a police state to a surveillance state and sound a death knoll for our privacy rights. This fusion of government power and private power is also at the heart of the surveillance state’s growing stranglehold on the populace.
As always, these intrusions into our personal lives are justified in the name of national security and fighting crime. Yet while the price to be paid for having the government’s so-called protection is nothing less than our right to privacy, the guarantee of safety remains dubious, at best.
As a study on camera surveillance by researchers at City University of New York concluded, the presence of cameras were somewhat effective as a deterrent for crimes such as car burglaries and property theft, but they had no significant effect on violent crimes.
On the other hand, when you combine overcriminalization with wall-to-wall surveillance monitored by police in pursuit of crimes, the resulting suspect society inevitably gives way to a nation of criminals. In such a society, we are all guilty of some crime or other.
The predatory effect of these surveillance cameras has also yet to be fully addressed, but they are vulnerable to being hacked by third parties and abused by corporate and government employees.
After all, power corrupts. We’ve seen this abuse of power recur time and time again throughout history. For instance, as an in-depth investigative report by the Associated Press concludes, the very same mass surveillance technologies that were supposedly so necessary to fight the spread of COVID-19 are now being used to stifle dissent, persecute activists, harass marginalized communities, and link people’s health information to other surveillance and law enforcement tools.
As the AP reports, federal officials have also been looking into how to add “‘identifiable patient data,’ such as mental health, substance use and behavioral health information from group homes, shelters, jails, detox facilities and schools,” to its surveillance toolkit.
These cameras—and the public-private eyes peering at us through them—are re-engineering a society structured around the aesthetic of fear and, in the process, empowering “people to not just watch their neighborhood, but to organize as watchers,” creating not just digital neighborhood watches but digital gated communities.
Finally, there is a repressive, suppressive effect to surveillance that not only acts as a potentially small deterrent on crime but serves to monitor and chill lawful First Amendment activity. As Matthew Feeney warns in the New York Times, “In the past, Communists, civil rights leaders, feminists, Quakers, folk singers, war protesters and others have been on the receiving end of law enforcement surveillance. No one knows who the next target will be.”
No one knows, but it’s a pretty good bet that the surveillance state will be keeping a close watch on anyone seen as a threat to the government’s chokehold on power.
It’s George Orwell’s 1984 on a global scale.
As I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, Orwell’s dystopian nightmare has become our looming reality.
Originally published by the Rutherford Institute
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at [email protected]
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