By Paul Rosenzweig, The George Washington University Law School
Generally, surveillance comes in three basic forms. First, there is physical surveillance, dating from the times of Alexander the Great and earlier, up to the Stasi State in post-World War II East Germany and to today. This is the traditional form of scrutiny that has always been the province of spies and intruders.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on The Great Courses Plus.
When one thinks of physical surveillance, the first image that comes to our mind is that of an eavesdropper.
An eavesdropper could, for example, hear a conversation. Or, if he looks in a window, become a Peeping Tom, and see the subject of his surveillance. One could even contemplate surveillance of smellslike, say, the scent of burning cannabis.
As the nature of our physical environment changed, physical surveillance also evolved. The telegraph became a way to rapidly transmit messages around the globe, and governments began exploring ways to intercept those messages.
American electronic surveillance really came of age during the Cold War. It is said that for years, the CIA ran a joint electronic surveillance operation with the Chinese, in the western deserts of China, to monitor Soviet missile launches.
In the mid-1970s, the National Security Agency (NSA) conducted two programs involving electronic interceptions that have, since, proven quite controversial.
One of them, code-named SHAMROCK, involved U.S. communications companies giving the NSA access to all of the international cable traffic passing through their companies facilities. The second program, known as MINARET, created a watch list of U.S. persons whose communications were to be monitored.
To the above traditional forms of surveillance, we must add a third: the collection, and analysis, of personally identifiable data and information about individuals.
Dataveillance is an inevitable product of our increasing reliance on the Internet and global communications systems. As the available storehouse of data has grown, so have governmental and commercial efforts to use this data for their own purposes.
To further frame the context, lets take a look at two surveillance exercises.
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The key to finding Osama bin Laden came from tracking, one of his couriers: Abu Ahmed al-Kuwaiti, who lived in Abbottabad, Pakistan. To track him, the CIA initially used sophisticated geo-location technology that helped pinpoint his cell phone location.
That allowed the CIA to determine the exact type of car that al-Kuwaiti droveit was a white SUV. Using physical and electronic surveillance, the CIA began tracking the vehicle. One day, a satellite captured images of the SUV pulling into a large concrete compound in Abbottabad. Agents used aerial surveillance to keep watch.
The residents of the Abbottabad compound were also extremely cautious. They burned their trashprobably to frustrate a search of that trash that might have yielded DNA samples of the residents.
The United States also learned that the compound lacked a phone or an Internet connection. Again, why? Almost certainly because the residents understood that phone and Internet communications could be tracked, traced, and intercepted.
It was observed that a man, who lived on the third floor, never left. He stayed inside the compound, and underneath a canopy, frustrating overhead surveillance by satellite.
In addition to satellites, the government flew an advanced stealth drone, the RQ-170, over Pakistan to eavesdrop on electronic transmissions from the compound.
The CIA made any number of efforts to identify this man. They tried to collect sewage from the compound to identify fecal matter and run a DNA analysis, but as the sewage contained the effluence of other houses, they couldnt isolate a good sample.
At one point, the CIA got a Pakistani doctor to pretend he was conducting a vaccination program. Nurses tried to get inside the compound and vaccinate the children, which would have allowed them to get a DNA sample, but again without success. To get a closer look, CIA spies also moved into a house on the property next door.
It has been reported that this surveillance operation cost so much money that the CIA had to ask for supplemental funding from Congressfunding that it, of course, received.
In short, during the hunt for bin Laden, the United States employed physical and electronic surveillance and sophisticated data analysis. The result, from an intelligence standpoint, was a success.
By now, most Americans are pretty familiar with the long lines, thorough pat-downs, and X-ray inspections that are part of the process.
But that physical screening comes at the back end of a process that begins much earlier when you first make a reservation to fly. The Transportation Security Administrations (TSAs) security directives require airline passengers to present identification when they make a reservation.
Later, if youre selected for secondary screening, you and your bags will be taken out of line for additional scrutiny. And why is it that we ask for a passengers name along with gender and date of birth?
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The reason is because that data is used for a form of dataveillance-screening, known as Secure Flight. Your name and date of birth are checked against a terrorist screening database.
Screenings include flights that overfly but dont land in the continental U.S. This was a key recommendation of the 9/11 Commission, created by the Congress and the president after the September 2001 terror attacks to identify security lapses, and ways to strengthen U.S. defenses.
The Secure Flight program has not, so far as is publicly known, ever actually spotted a terrorist.
There are ways one might legally challenge this kind of surveillance. In 2006, a traveler named John Gilmore challenged the TSAs identification requirement. He asserted that he had a right to travel and that his right to travel included the right to do so anonymously without providing identification.
The federal Ninth Circuit court of appeals agreed, provisionally, that he had a right to travel. But, it said that if he wanted to travel by air, then Gilmore was consenting to the requirement that he provide identification before boarding the plane. If he didnt want to do that, he was free to travel by some other means.
The story doesnt end there, however. For years, ten U.S. citizens were unable to fly to, or from, the United Statesor even over American airspacebecause they were on the governments top-secret No Fly List.
They were never told why theyd made to the list, they didnt have much chance of getting off of it, either. In June 2010, the American Civil Liberties Union filed a lawsuit on behalf of a disabled Marine veteran named Ayman Latif, who was living in Egypt, and the nine others.
Latif won the case. The court concluded that he did have a right to challenge his inclusion on the no-fly list, and was entitled to a process by which he could seek to be removed from it.
It didnt help the governments case that Latif had probably been put on the list by mistake, and should have been removed long before his lawsuit came to court.
The above polar cases bring us full circle to a set of concepts that we need to think about: the balance between transparency and effectiveness.
Some of the physical and traditional forms of surveillance include eavesdropping, looking at the object, or prying over someone, and using smell to do surveillance.
The CIA used drones, satellites, and physical surveillance in the hunt for Osama bin Laden.
Dataveillance is a type of surveillance that includes the collection, and analysis, of personally identifiable data and information about individuals.
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