Technology, Privacy, and Sousveillance

I posted earlier about a panel I went to yesterday at the ACLU membership conference. In that post, I contended that the speakers at the ACLU panel were wrong to view net neutrality as a free speech and privacy issue and to favor government regulation of the internet.

Today, I went to a very different panel, also about technology and civil liberties. This panel, called “Who’s Watching You? Living in a Surveillance Society,” was composed of Eric Lichtau (the journalist who broke the story about the NSA’s warrantless wiretapping program), Lillie Coney from EPIC, and the ACLU’s Michael German, Barry Steinhardt, and Carol Rose. The discussion focused on ways the government is employing new technology to undermine your privacy. Steinhardt gave a laundry list of potential new threats, including thermal imaging in the dead of night, see-though airport scanners, border-patrol drones, and RFID tracking devices.

But the panelists spent the greatest amount of time discussing not new technologies for surveillance, but rather the potential of sousveillance. As German said in his opening remarks, nowadays “the government is increasingly watching you, but you can no longer watch the government.”

Rose, German, and Coney focused their comments on the FBI’s new fusion centers, which are entities run by state and local authorities but financed and controlled partially by the feds to collect huge amounts of data on individuals in the US. The centers are bad enough but, Coney reported, Virginia just passed a law exempting fusion centers from all sorts of government openness requirements. Virginia, she said, has created a “black hole” around the fusion centers.

Advocacy groups and journalists had long relied on sousveillance, Coney argued. Whistleblowers would come forward and inform the public about what was really going on. But now, Virginia has criminalized whistleblowing. It is now a criminal offense to pass information about the fusion center to outsiders. Fusion centers were already difficult to obtain FOIA records on, since the centers do not themselves hold files on individuals, but rather contract with databases and data mining companies to get the data they want, then get rid of it. Rose contended that fusion centers are creating a society that sounds “less like Orwell and more like Kafka. You don’t know how they’re using the information they have about you.”

Can sousveillance be a (partial) solution to privacy concerns? For a while, writers have been portending the death of privacy. David Brin famously wrote in The Transparent Society that the loss of privacy is inevitable and that the best we can do is to ensure total sousveillance in addition to unavoidable surveillance. Today, Rose said that the goal of privacy organizations like the ACLU should now be to increase government oversight, because eliminating programs like fusion centers outright is increasingly difficult. May the ACLU be subtly shifting focus in their war for our right to privacy?