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Wireless Tapping

The new communications technology has brought us mobile phones and two-way wrist radios—and new threats to our privacy that will require innovative solutions.

It used to be the first thing you'd see in the Sunday funnies: the square-jawed visage of Dick Tracy, speaking into a "two-way wrist radio." The fictional detective has become a cliché in the new age of high-tech communications. In fact, many observers proclaim that the technology of cellular mobile radio telephones will make the widespread availability of two-way wrist radios a reality. And ITT even used Dick Tracy's image to advertise new telecommunications developments.

This symbol might have more relevance to the cellular age than is commonly thought. The technology promises to make widely available pocket- or wristwatch-size telephones—current cellular phones are slightly bigger than ordinary ones—but it also may make possible special uses by the police. Cellular telephones could conceivably become one of the new law-enforcement tools of the '80s and beyond.

This possibility raises disturbing questions about citizens' constitutional right to privacy and their ability to protect that right. Given the fast pace of technological change and the comparatively slow pace of legal change, technology promises to outstrip the law. How, then, can individual privacy survive the threat of growing government intrusion in the new communications age? The question is vitally important for a free society. The most promising immediate answer lies not only in the courts and the legislatures but in another essential institution of a free society: the marketplace. Communications firms will help privacy survive the new communications age, if they realize that to attract and keep customers they must implement and improve ways to safeguard confidential customer information.

In his 1983 keynote speech inaugurating Washington, D.C.'s cellular system, John Naisbitt, author of the bestseller Megatrends, suggested how cellular technology will change the way people think about communications. "People will be connected as individuals regardless of where they happen to be physically located at any one time," he said. "We'll be able to [reach out and touch someone] anywhere, anytime, with our portable telephone." Offering an encouraging view of the future of individual autonomy, Naisbitt speculated that the revolution in personal communications may one day allow individuals to bypass national telecommunications systems. "The implications for totalitarian countries," he proclaimed, "are just staggering."

But this growing capacity for individual contact also portends cellular's potential use as a surveillance tool—the dark side of the new communications age. When nearly all individuals become part of a personal-communications network more extensive than today's phone system, the authorities may be able to "reach out and touch" them—whether or not an individual wants (or knows about) the contact. In other words, this brave new world of instant communication may erode the notion of privacy—and our ability to protect it. This is particularly a threat with cellular technology, because it may supply the means to pinpoint the locations of all system subscribers (see sidebar, page 26). The problem is magnified where such advances eclipse existing legal protections.

Technological developments historically have affected the scope of individual rights. When it comes to the right of privacy, science has provided new ways to intrude on individual lives, while the law protects primarily against past abuses. Thus, difficulties arise when science creates a world that is significantly different from the law's view of reality.

Introduction of the telephone, for example, led to a disparity between legal change and technological development. When first confronted with the issue of whether or not wiretapping telephone conversations constituted an unreasonable search, the Supreme Court ruled that official eavesdropping was permissible. This decision, in the case of Olmstead v. United States, came in 1928 as the telephone was becoming a household necessity, but it applied legal concepts developed in the 18th century.

The Constitution's framers intended the Fourth Amendment as a restraint against unreasonable search and seizure to protect individuals from government interference with their property, especially personal papers. When the amendment was adopted in 1791, it was sufficient to protect the privacy of communications, since correspondence was conducted in tangible form. But when the telephone made personal communication intangible, the law did not keep up. In Olmstead, the court merely applied its time-honored understanding of property rights: "The [Fourth] Amendment does not forbid what was done here," the court ruled. "There was no searching. There was no seizure. The evidence was secured by the sense of hearing and that only. There was no entry of the houses or offices of the defendants."

Justice Louis Brandeis, writing in dissent, was more sensitive to the effect of technological development on civil liberties. He pointed out that discovery and invention have given government means "far more effective than stretching upon the rack" to extract information from defendants. "The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tappings," he added. "Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court."

Justice Brandeis's concern with the widespread use of government espionage was well-founded. In the years following Olmstead, electronic surveillance was widely used, posing an ever-increasing threat to civil liberties. Justice William Brennan pointed out in 1963 that "our decisions…[have] been outflanked by the technological advances of the very recent past." And Justice William O. Douglas warned three years later that "we are rapidly entering the age of no privacy, where everyone is open to surveillance at all times."

This concern reached new heights in 1975 as Congress considered advances in surveillance technology and data banks. During hearings on the issue, former US Sen. John Tunney (D–Calif.) worried that "technological developments are arriving so rapidly…that we are in danger of losing the capacity of shaping our own destiny.…This danger is particularly ominous when the new technology of surveillance conveys effective control over our privacy, our freedom and our dignity."

Forty years after Olmstead, the Supreme Court finally caught up with the development of the telephone. It concluded that technology had indeed progressed such that a new Fourth Amendment theory was needed. In the 1967 case of Katz v. United States, the court overturned Olmstead, holding that wiretapping constitutes an unreasonable search. In Katz, the court even extended Fourth Amendment protection beyond the individual's home to include conversations from a public telephone booth. According to this new formulation, the Fourth Amendment protects "people, not places." Where the individual has exhibited a "reasonable expectation of privacy," the law must protect that privacy.

Although the Supreme Court belatedly came to terms with the existence of telephones, technology marches on, and new inventions again and again pose potential civil-liberties problems.

For example, interactive "two-way" cable television—by which subscribers can send and receive signals over their TV sets (to tap into a data bank, for instance, or to pay bills)—raises a number of privacy issues. Former Federal Communications Commission (FCC) chairman Charles Ferris has pointed out that interactive-cable operators will have composite files on their subscribers that could contain such information as the way in which consumers pay their bills and what they purchase; the consumers' programming preferences; and, if the system is hooked into the home security system, when the consumer returned home the previous night. "In other words," Ferris concluded, "it will know more about them than anyone should." The comprehensive nature of such files raises the possibility of significant privacy invasions by both government and private interests. This brings to life Justice Brandeis's warning that searches may one day be conducted without anyone ever entering the home.

Already, police have used video technology for surveillance purposes. Federal investigators have placed hidden video cameras in the residence of suspected terrorists to gather information, and this exceedingly intrusive surveillance practice has been approved judicially. Also, closed-circuit-television (CCTV) surveillance systems have been employed to continuously monitor city streets and, as in the nation's capital, subway platforms. The now-defunct federal Law Enforcement Assistance Administration funded CCTV systems in a dozen cities in the 1960s and '70s as part of its aid to states to beef up the criminal-justice system. Such monitoring systems, of course, have long been commonplace in the private sector, in institutions such as banks. But when the government engages in around-the-clock video surveillance of city streets, serious constitutional issues are raised.

Another means of electronic surveillance currently in vogue among police departments is the use of electronic tracking devices. One method involves attaching a radio transmitter, or "bumper beeper," to a suspect's possessions—on a car, for instance, or a briefcase—and using a receiver to follow the "trail." Police don't need a court order to use the beepers.

Several firms, including Geostar Corporation, have filed applications to operate a system of satellite tracking devices, and the Federal Communications Commission has taken preliminary steps to approve the applications. With its system, Geostar claims, "everyone in the U.S. could be located instantly" through the use of a small, hand-held transmitter and three satellites. Using a computer link, the satellite system could fix the location of the transmitter's signal by latitude, longitude, and altitude. In tests, the proposed equipment was accurate within seven meters.

Though initially proposed for industrial and emergency uses, the satellite locator system also would vastly expand the ability of the police to tail suspects. Indeed, FCC officials have applauded the system's potential capability to alert police to "the event and location of crimes." Although this particular portrayal paints the scenario of an embattled crime victim signaling for help, the same technology could be used for intrusive surveillance purposes.

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