Big Brother has been outsourced. The police can find out where you are, where you’ve been, even where you’re going. All thanks to that handy little human tracking device in your pocket: your cellphone.
There are 331 million cellphone subscriptions—about 20 million more than there are residents—in the United States. Nearly 90 percent of adult Americans carry at least one phone. The phones communicate via a nationwide network of nearly 300,000 cell towers and 600,000 micro sites, which perform the same function as towers. When they are turned on, they ping these nodes once every seven seconds or so, registering their locations, usually within a radius of 150 feet. By 2018 new Federal Communications Commission regulations will require that cellphone location information be even more precise: within 50 feet. Newer cellphones also are equipped with GPS technology, which uses satellites to locate the user more precisely than tower signals can. Cellphone companies retain location data for at least a year. AT&T has information going all the way back to 2008.
Police have not been shy about taking advantage of these data. According to the American Civil Liberties Union (ACLU), U.S. law enforcement agencies made 1.5 million requests for user data from cellphone companies in 2011. And under current interpretations of the law, you will never find out if they were targeting you.
In fact, police no longer even have to go to the trouble of seeking information from your cell carrier. Law enforcement is more and more deploying International Mobile Subscriber Identity locators that masquerade as cell towers and enable government agents to suck down data from thousands of subscribers as they hunt for an individual’s cell signal. This “Stingray” technology can detect and precisely triangulate cellphone signals with an accuracy of up to 6 feet—even inside your house or office where warrants have been traditionally required for a legal police search.
Law enforcement agencies prefer not to talk about cellphone tracking. “Never disclose to the media these techniques—especially cell tower tracking,” advises a guide for the Irvine, California, police department unearthed by the ACLU in 2012. The Iowa Fusion Center, one of 72 local law enforcement intelligence agencies established in coordination with the Department of Homeland Security, distributes a training manual that warns, “Do not mention to the public or media the use of cellphone technology or equipment to locate the targeted subject.” The ACLU translates: “We would hate for the public to know how easy it is for us to obtain their personal information. It would be inconvenient if they asked for privacy protections.”
Ubiquitous cellphones, corporate acquiescence, stealthy new surveillance technologies, and unchecked police intrusiveness combine to produce a situation where the government can pinpoint your whereabouts whenever it wants, without a warrant and without your knowledge. The courts have largely punted on this issue so far. But should carrying convenient communications technology mean that we give up our right to privacy?
Back in the 18th century, architect Samuel Bentham designed a building in which every occupant would be perpetually observable by a hidden inspector located in a central tower. His brother, philosopher Jeremy Bentham, dubbed the building the Panopticon (literally, “all seeing”) and argued that widely adopting it could solve most of society’s ills. “Morals reformed—health preserved—industry invigorated—instruction diffused—public burthens lightened—Economy seated, as it were, upon a rock—the Gordian knot of the poor-law not cut, but untied—all by a simple idea in Architecture!” Bentham enthused. The occupants of the Panopticon, not knowing if they were in fact being observed, would come to assume constant surveillance and eventually “watch themselves.” No actual inspector needed.
More than 200 years later, geographers Jerome Dobson from the University of Kansas and Peter Fisher from the University of Leicester took the concept of the Panopticon to the next level. In a 2003 article in IEEE Technology and Society Magazine, the two ominously predicted “geoslavery,” defined as “a practice in which one entity, the master, coercively or surreptitiously monitors and exerts control over the physical location of another individual, the slave.” In their most lurid scenario, the master would be able to constantly monitor his slave’s location and, if he wasn’t where he was supposed to be, remotely administer an electric shock to get him back in line. Although no one has offered an electric shock app for cellphones yet, private companies like PhoneSheriff and FlexiSPY offer cellphone software that enables parents and spouses to secretly monitor others’ contacts, conversations, and locations. As creepily invasive as private surveillance is, however, it’s far worse for our civil liberties that surreptitious tracking by law enforcement has so dramatically increased since 2003. How free would you feel if you thought there was a good chance the cops were monitoring your movements?
“The reason that the Panopticon will slip into the modern world is because it offers so many benefits, as Bentham argued,” Dobson tells me. “The downsides will become apparent only after we’ve been seduced by the benefits.”
Stephanie Pell, former counsel to the House Judiciary Committee, and Christopher Soghoian, a senior policy analyst and chief technologist at the ACLU’s Speech, Privacy, and Technology Project, argue in the Spring 2012 Berkeley Technology Law Journal that “the presence of modern surveillance mechanisms, visible and imperceptible, public and private, promotes the ‘Panoptic effect’—a general sense of being omnisciently observed.” Pell and Soghoian argue that awareness of the state’s Panoptic “gaze” becomes coercive: We act differently if we believe we are being watched. Individual freedom requires the ability to avoid the judging gaze of others, especially agents of the state. “As modern location surveillance techniques increase in precision and their pervasive distribution throughout society becomes known,” write Pell and Soghoian, “people become increasingly aware of, and potentially influenced by, a palpable sense of the omniscient gaze similar to that produced by the design of Bentham’s” Panopticon.
“Awareness that the Government may be watching chills associational and expressive freedoms,” wrote U.S. Supreme Court Justice Sonia Sotomayor in U.S. v. Jones, a 2012 case dealing with warrantless GPS tracking. Sotomayor added that such unfettered tracking “may alter the relationship between citizen and government in a way that is inimical to democratic society.” Dobson asks: “What happens if you create a society in which nobody can do anything wrong, never step out of line or go off the path? Would that be the same self-motivated society we have today?” Watched citizens are tantamount to prison inmates; they just roam a larger cage.
“Privacy is rarely lost in one fell swoop,” writes George Washington University law professor Daniel Solove in a May 2011 Chronicle of Higher Education essay. “It is usually eroded over time, little bits dissolving almost imperceptibly until we finally begin to notice how much is gone.” Solove suggests that privacy will be lost slowly at first, as many people shrug when the government begins to monitor incoming and outgoing phone numbers. After all, they’re just phone numbers. Each increase in government spying—recording selected phone calls, installing video cameras in public spaces, surveilling via satellite, tracking bank transactions, compiling records of Internet searches—is shrugged off as a minor intrusion. “Each step may seem incremental,” Solove warns, “but after a while, the government will be watching and knowing everything about us.”
Solove points out that awareness of pervasive surveillance not only affects how citizens go about their lives (how they express themselves, with whom they associate); it also skews the balance of power between individual citizens and government bureaucracies. As the size and scope of government grows, bureaucratic mistakes become more common and harder for citizens to correct. Putting limits on government surveillance is therefore a way to prevent the government from doing wrong to its citizens.