Privacy SOS

The future beckons, but we aren’t ready for it

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Think surveillance and communications privacy law is bad now? Just wait until the military’s “bioreactive taggants” and “smart dust” migrate back to the United States, and end up in the arsenals of the FBI, DHS, DEA, ATF, LAPD, and NYPD.

That day will come, and we couldn’t be lesser prepared.

I spend a lot of my time worrying about how we can successfully grapple with the privacy impact of technologies like face recognition, already in widespread use and growing in significance by the day. But we still haven’t appropriately dealt with the shift from analog to digital.

In 2013, more than a decade after the dot com boom and bust, we still don’t have across the board standards requiring law enforcement to get warrants before reading our emails. Protections for our metadata — records about our communications, such as who we talk to, where and when — are effectively nonexistent, from the NSA all the way down to your local prosecutor’s office.

And it’s about to get a whole lot worse, fast. We are about to enter yet another brave new world of technological change, and we are not even close to ready. 

In Jeremy Scahill’s latest book, ‘Dirty Wars,’ he describes some innovative and frankly frightening technologies currently being fine tuned by the US Military Special Operations Command for use in the field (a.k.a. the entire world):

Known as Continuous Clandestine Tagging, Tracking and Locating,” or CTTL, it involved using advanced biometrics and chemistry to develop a long-range facial recognition program as well as a “Human Thermal Fingerprint” that could be isolated for any individual. They also used a chemical “bioreactive taggant” to mark people by discreetly swabbing a part of their body. The taggant would emit a signal that [the Joint Special Operations Command] JSOC could remotely monitor, enabling it to track people 24/7/365. It was like a modern version of the old spook’s tracking devices made famous in films, where spies would weave them into an enemy’s clothes or place them on the bottom of a vehicle. The taggant allowed JSOC to mark prisoners and then release them to see if they would lead the task force to a potential terror or insurgent cell. Putting them on nonprisoners was a greater challenge, but it happened. The use of such technology, along with the accelerated pace of the killings and captures, would inspire President Bush’s declaration that “JSOC is awesome.”

Click here to see the entire Special Operations Command powerpoint presentation on CTTL.

But that's only the beginning.

There’s also ‘smart dust’ — tiny computers that pack processors, power and wireless communications into technology the size of a grain of sand. Good luck finding one of those in your car, placed just so by an FBI agent grateful you left your window open a crack.

It should go without saying that tools like these, developed by the US military at a cost of untold hundreds of millions of dollars, will migrate back to the United States for use by domestic law enforcement and intelligence. 

But the FBI has plans of its own, and isn’t waiting for the military’s futuristic spook tools to trickle down to its agents. The bureau is already working on a host of high-tech surveillance and tracking mechanisms for implementation here in the states, with a heavy emphasis on those that use a range of biometric identifiers, from scent to gait and everything in between. My personal favorite is the video sensor technology that may someday identify our heart beats from drones. (Yes, our heart beats are unique, and therefore biometrics.)

Gizmodo reports on another DOJ funded research project:

Tracer Detection Technology Corp. marks targets with a paraffin wax crayon, filled with a perfluorocarbon, a thermally-stable compound used in everything from refrigerators to cosmetics. The perfluorocarbon’s vapor can then be tracked with sensors, such as a gas chromatograph. The smell lingers for hours. Think locking yourself in a room with the windows closed or removing the tag will help? Too bad, you still reek. According to a research report submitted to the Justice Department (.pdf), the perfluorocarbon tracers can “permeate closed doors and windows, containers and luggage,” and even give you away for a while after a tagged item is removed.

If you thought working metadata into Fourth Amendment protected space was hard, imagine trying to get a warrant requirement for electromagnetic tracking, or any of these other almost alien technologies. 

We have a lot of work to do if we want to avoid living in a dystopian nightmare powered by miniature, bug-sized drones and invisible tracking ink. The nanotech revolution will require a privacy evolution alongside it, but our related laws are still stuck in the big hair era. Putting our heads in the sand while the military and the FBI develop yet more invasive and powerful surveillance and tracking tools is a good way to ensure that the power inequities and extreme state secrecy we are experiencing today only metastasize. Tinkering around the edges is not going to cut it — and waiting around for the Supreme Court to bestow us with rights we deserve is not advisable.

So how do we reform the law? Europe’s privacy model is an interesting place to start. Ultimately, we need overarching, broad privacy reform that takes into account these technological advancements and the ones coming down the pike — and something with teeth. 

But in order to achieve any kind of systemic reform, we need to first overcome an ideological hurdle. Enough with the technological utopianism. Technology can help us do really cool stuff, but it can also hurt us — badly. Before we can reshape our privacy law for the 21st century and beyond, we have to come to terms with this basic fact. 

Getting congress to listen to us won't be easy, but we've done it before, and we are in as good a spot as we've been in decades to push for real reform now. Let's strike while the iron is hot. The future belongs to all of us, if we will it.

© 2024 ACLU of Massachusetts.