Suspected Terrorist

Multimillionaire John Gilmore is suing the government to remain anonymous. Is this the last stand for privacy?

Brian Doherty from the August/September 2003 issue

(Page 4 of 6)

Americans' near-universal willingness to embrace the convenience of credit cards and ATM cards even though they create permanent records of what you buy and when and where you buy it, and when you obtain cash and in what amount.
The widespread use of car transponders that create permanent records of each time your car passes a toll booth, just so you can avoid stopping and rifling through your pockets for change. (Where available, these devices tend to win the patronage of over half of motorists, according to Peter Samuel, editor of Toll Roads Newsletter.)
The popularity of supermarket club cards that collate permanent records of your grocery spending just so you can get 12-packs of Diet 7-Up on the cheap.
A recent poll showing that three-fourths of a polled group of frequent business fliers would be "very" or "extremely" willing to undergo fingerprint scans and 61 percent equally thrilled to have a national ID card with thumbprint if only they could move faster through those goddamn airport security lines.

In practice, the overwhelming majority of us are more than happy to accept the conveniences that make tracking and database building possible. We thus have a lot of databases for a TIA to choose from -- more than anyone (or any database) has even tallied.

Only the Guilty Have Reason to Fear

Still, we don't have a fully functioning database nation yet. Private investigators and database management spokesmen point out that we do not yet live in a world where someone can pop your name into a computer and have a fat dossier come shooting out of the LaserJet with your name, address, income, bad checks, and old girlfriends in a convenient list, even though private -- and government -- databases do continue to multiply.

D.C.-area private investigator Ken Cummins sounds like David Brin when he points out that databases are of enormous help in totally legitimate tasks -- making people pay their debts, finding fleeing miscreants. Obscurity is indeed the friend of much of the world's evil, as Brin insists when he rails that "financial privacy" concerns are just camouflage for drug dealers and tax evaders. But even in this high-tech world, private eyes often have to find things out through phone calls, physical tracking, and digging through garbage, just like in the old days.

It's also clear from examining the techniques of private eyes that laws restricting who has access to government databases don't mean much -- the real danger comes from those with a legitimate reason to use them. Sometimes the best way to get information from privileged databases is to apply persuasion to those who have professional access to them. As many real-world cases show, any system with a human element is inherently insecure. As James Lee, marketing chief of ChoicePoint, tells me, most of what professional database companies pull together for their clients comes from tedious collation of public records -- in other words, from the government.

Not that the government provides no protection for your privacy. Specific public controversies have led to specific privacy laws. Robert Bork had his video rental record made public, and we got the Video Privacy Protection Act of 1988. Actress Rebecca Schaeffer got murdered by a stalker who found her address through state motor vehicle records, and we got the Drivers Privacy Protection Act of 1994. It's doubtful, though, in the post-9/11 environment, that any personal embarrassment or tragedy that accompanies things like CAPPS II will lead to crisis laws to protect travelers' privacy.

When it comes to protecting information about ourselves -- our privacy or, as John Gilmore wishes, our anonymity -- what can we do about it? What right do we have to do anything about it?

Many privacy concerns are more a matter of sensibility than of objective injury. It is probably true that in most cases a lot more trouble will come from refusing to show an ID than would ever come of showing it. When I talk to people about this story, those who aren't professional privacy activists often ask me, Why the hell is Gilmore fighting about this? Still, some people do consider it an affront that anyone would demand private information from them that they have no good reason to obtain.

Most objections to Gilmore's beliefs about anonymity and privacy can be reduced to the familiar slogan: Only the Guilty Have Reason to Fear. Why, if you have nothing to hide, do you care who knows who you are, your credit and medical records, or what you've been reading in the library and renting from the video store?

That slogan may be silly, but it's important. Not because it settles any arguments, but because it delineates boldly what's at stake. It also makes possible a similarly bold, clearly widely believed, yet rarely voiced response: We are all guilty, and we don't want to live in a world where there is no room to get away with being guilty.

As the Pacific Research Institute's Arrison says, "We all make errors and mistakes, and if we are constantly slapped for every single thing we do, it would make a really terrible place to live. A society that expects us all to be infallible is unnatural."

Secure Beneath Watchful Eyes

Imagine an airplane flight in a very plausible future in which John Gilmore's fight has been lost. While not everything in it is happening now, there are few technological or legal barriers to keep this scenario from becoming real in the near future.

On your way to the airport, you are passing tollbooths while your transponder makes a record of where you are. Your cell phone is GPSed, and your phone records could identify where your phone is or was at any time. Your car is also equipped with a transponder-triggered traffic-law enforcement device that spits a speeding ticket out of your dash every time you exceed the speed limit for more than a minute, the sum precisely calibrated to the level of your crime. (You got a problem with that? Only the guilty have reason to fear!)

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