Technology allows Government to Cheat Constitutional Protections


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


The U.S. Supreme Court’s recent decision in U.S. v. Jones, finding that the attachment of a GPS device to a suspect’s car is a search triggering Constitutional protections,has caused some interesting discussion regarding technology and law enforcement and doubts about what the Founding Fathers intended when drafting our Country’s greatest document.   What is not in doubt is that technology will surely continue to press the capability and intent behind the Constitution of the United States.


Technology from the beginning always tempted man with its boundless potential to serve the good of mankind. But, with every technological advance, society encumbered a disadvantage.  Technology has made George Orwell’s Nineteen Eighty Four “Big Brother” society an acceptable reality today. The technology of surveillance has made all of us prisoners in cells without bars. Our conversations are no longer private, our habits (good and bad) are monitored, our thought-processes are mined to develop a “profile” on each of us, and virtually every movement we make in the public arena are digitally stored in either a or corporate database.


On December 16, 2005, James Risen and Eric Lichtblau informed the country in a New York Times headline that read: Bush Lets U.S. Spy on Callers without Courts. The two reporters began their article with this lead: “Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.”


The “9/11” attacks created the “war” on terror. Law enforcement, intelligence and military agencies, with the blessing of President Bush and high-level congressional leaders, launched covert surveillance of virtually every aspect of American society. The right to privacy, on our person and in our homes, may as well have been lynched in Times Square. The constitution, the very document that separates this country from rogue nations that sponsor terrorism, slowly wasted away as the Government mined every nook and cranny for more and more information, false or otherwise, and obtained by any means necessary—torture, secret prisons, kidnapping, killing of innocents, etc—in the name of the “war on terror.”


Risen/Lichtblau provided these hints: “Under a presidential order signed in 2002, the intelligence agency (NSA) has monitored international telephone calls and international e-mails of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible ‘dirty members’ linked to Al-Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.


“The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American admitted intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operations have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.”


The Times report generated enough public and congressional consternation to force Congress to legalize the Government’s previous illegal surveillance activities. In response to this growing congressional concern led by Senators Patrick Leahy and Arlen Spector, U.S. Attorney General Alberto Gonzales in January 2007 informed the Chairman and Ranking Member of the Senate Judiciary Committee that the Government would conduct a Terrorist Surveillance Program under the 1978 Foreign Intelligence Surveillance Act (FISA) with “complex” and “innovative” court approval.


That same year the full body of Congress joined ranks with the President passing a temporary amendment to FISA bestowing upon the President the power to eavesdrop on conversations when intelligence officials believe that at least one party in the conversation is outside the United States. This was a precursor of what was to come.


In July 2007, New York City officials announced plans to set up thousands of cameras in Lower Manhattan, the home of the 9/11 attacks, to monitor individual and vehicle movements. Writing in the 2008-09 Minnesota Law Review, Yale Law School professor Jack M. Balkin, in a treatise titled “The Constitution in the National Surveillance State,” described the surveillance program and its inspiration: “Some cameras will be able to photograph and read license plates and send out alerts for suspicious cars. The system of cameras will link to a series of pivoting gates installed at critical intersections, giving government officials the ability to block off traffic through electronic commands. New York’s new plan—called the Lower Manhattan Security Initiative—is based on London’s ‘Ring of Steel,’ a security and surveillance system around London’s central core that features thousands of surveillance cameras. New York is hardly alone; the Department of Homeland Security has been channeling millions of dollars to local governments around the country to create hi-tech camera networks that can be linked with private surveillance systems.”


To keep pace in building this National Surveillance State, one that puts “Big Brother” to shame, Congress in 2008 amended FISA several more times giving the President unprecedented authority to conduct electronic surveillance without a warrant while simultaneously, as Professor Balkin pointed out, giving telecommunications companies immunity from civil liability for having “participated in the secret NSA program.”


Nestled in obscurity, most Americans are not aware that the National Surveillance State began long before Bush declared the “war on terror.” Some commentators believe it commenced with the Welfare State, which is often traced back to Roosevelt’s “New Deal” but which actually evolved in the 19th century with pensions for Civil War veterans and their families, as pointed out by Theda Skocpol in her book Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Belknap Press, Nov. 1992). What Roosevelt did—and whose actions were influenced greatly by the populist railings of Louisiana Governor and U.S. Senator Huey P. Long—was ingrained the social concept into our political system that Government has a fundamental responsibility to assist its disabled, elderly, and dependent citizens.


Against the historical backdrop of the suffrage movement, unions, political parties, women’s organization, and “reform-minded” cultural values that led to the creation of the Welfare State, a Government need was spawned for gathering, collating, and storing information about its citizenry involved in “social programs”: spending and transferring revenues to entitlements (welfare-food stamps-social security-medicare/medicaid), public works, licenses, ethnic-gender-age equality, and a host of other social programs. As 20th century technology improved the methods of gathering and disseminating this vast store of information, the parallel need to monitor, and ultimately, to keep under perpetual surveillance became an integral component in the Government machine. In his book Electronic Eye: The Rise of Surveillance Society (U. Minn. Press 1994), David Lyon observed:


“[T]he surveillance systems of advanced bureaucratic nation-states are not so much the repressive machines that pessimists imply, but the outcome of aspirations and strivings for citizenship. If government departments are to treat people equally … then those people must be individually identified. To exercise the right to vote, one’s name must appear on the electoral roll; to claim welfare benefits, personal details must be documented. Thus … the individuation that treats people in their own right, rather than merely as members of families or communities, means ‘freedom from specific constraints but also greater opportunities for surveillance and control on the part of a centralized state.’”


Today we have become almost exclusively an information-driven society: social security numbers, driver’s license numbers, identification numbers, credit card numbers, even our own generated “ID/passwords”—all of which create unimaginable opportunities for Government, and, yes, corporations to track our every move. Google knows more about us than we know about ourselves.


An article in the New York Times in 2002 reported there were at least 2 million closed-circuit television systems in the United States. Since 9/11 there has been even more Government security cameras put in place. Cell phone camera technology, with the embracing arm of YouTube and Facebook, have strained the concept of individual privacy for us, our children, and, yes, our adorable pets. In fact, Facebook and Twitter market our trivial thoughts, feelings, and aspirations to make us feel “connected” or “engaged” with the larger society. What people eat for breakfast, how much booze they drank the night before, who their “best friends” are, and when their love life took a downward spiral used to be privately-held information. Now, people surrender so much private information to “social media” that Government intelligence geeks and law enforcement snoops are there watching, gleaning, and, yes, salivating.


Professor Balkin describes the kind of society we have degenerated to with The National Surveillance State:


“Increased focus on surveillance and prevention becomes inevitable once digital information technologies become widely dispersed. Criminal organizations and terrorist groups can use many of the same information and surveillance technologies that governments and legitimate businesses do. Terrorist groups that lack fixed addresses can use new information technologies to communicate and plan assaults. Hackers can attack networks afar. A new breed of criminals employs digital networks to commit old-fashioned crimes like embezzlement and to commit new crimes like identity theft and denial of service attacks. Cyber attacks can not only bring down financial institutions, they can also target the nation’s defense systems. Digital technologies simultaneously pose new problems for governments and create new opportunities for identifying threats and meeting them in advance.



“Older models of law enforcement have focused on apprehension and prosecution of wrongdoers after the fact and the threat of criminal or civil sanctions to deter future bad behavior. The National Surveillance State supplements this model of prosecution and deterrence with technologies of prediction and prevention. Computer security tries to identify potential weaknesses and block entry by suspicious persons before they have a chance to strike. Private companies and government agencies use databases to develop profiles of individuals who are likely to violate laws, drive up costs, or cause problems, and then deflect them, block them, or deny them benefits, access, or opportunities. The government’s ‘No Fly’ and ‘Selectee’ watch lists and its still-planned Secure Flight screening program collect information on passengers and create profiles that seek to block dangerous people from boarding plans. Governance in the National Surveillance State is increasingly statistically oriented, ex ante and preventive, rather than focused on deterrence and ex post prosecution of individual wrongdoers. Such tendencies have been around for at least a century, but new technologies for surveillance, data analysis, and regulation by computer code and physical architecture have made them far easier to put into effect.


“The National Surveillance State seeks any and all information that assists governance: electronic surveillance is not its only tool. Governments can also get information out of human bodies, for example, through collection and analysis of DNA, through locational tracking, and through facial recognition systems. The Bush administration’s detention and interrogation practices seek to get information out of human bodies through old-fashioned detention and interrogation techniques, including techniques that are tantamount to torture. In the National Surveillance State, bodies are not simply objects of governance; they are rich sources of information that governments can mine through a multitude of different technologies and techniques.”


That’s scary stuff. Really is. And where does the Constitution fit into all these different kinds of assaults on personal privacy in this National Surveillance State? No one really knows. The U.S. Supreme Court has instructed the lower courts to tread lightly through the maze of information technology versus individual privacy. If Justices Antonin Scalia and Clarence Thomas have their way, these complex issues will be decided on what our Founding Father intended with the 1789 document. And that’s a dangerous notion. The Framers could not have even fathomed GPS, much less Google or Facebook. The need, and the demand, for Government surveillance is cascading like an avalanche to the point where the Fourth Amendment is “right of privacy” will be obsolete and unenforceable.


We do not feel it’s time to tread lightly. It’s time for bold action to protect the right of individual privacy from both Government and business surveillance. If the courts do not vigorously step up to the plate and check the insatiable desire of the executive and legislative branches of Government to monitor and snoop into every facet of our lives, we will lose our precious freedoms—all of them, just as we have virtually lost our right to privacy.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization