Government surveillance harms society, UF law professor writes in new book

March 4, 2008

GAINESVILLE, Fla. — Acts of government surveillance — from increasing use of closed-circuit televisions and global positioning systems to an array of sophisticated technologies that can access records about our activities — represent an insidious assault on the freedom of Americans that the law has failed to respond to, according to a new book from a University of Florida law professor.

“The Supreme Court of the United States and the court system generally are not involved in overseeing this new surveillance, not so much because of a power grab by the executive branch, but because the courts themselves have taken the judiciary out of the game,” said UF Levin College of Law professor Christopher Slobogin, author of “Privacy at Risk: The New Government Surveillance and the Fourth Amendment” (University of Chicago Press).

In his book, Slobogin writes, “The assault comes from government monitoring of our communications, actions and transactions. The failure results from the inability or unwillingness of courts and legislatures to recognize how pervasive and routine this government surveillance has become.”

To ensure that the government’s use of these powerful tools is not abused, Slobogin argues, something equally powerful — the Constitution, and in particular the Fourth Amendment to the Constitution — must stand guard. Slobogin’s book focuses on new developments in the government’s use of technology designed to observe our daily activities through physical surveillance and to peruse records of those activities.

While some of these technologically enhanced investigative techniques have been around for years, most are recent in origin, and their use by law enforcement officials has increased dramatically since the terrorist attacks of Sept. 11, 2001.

Since Sept. 11, the Bush Administration has pushed aggressively in two areas — camera surveillance and data mining. The government has provided millions of dollars to cities and municipalities for the purpose of setting up sophisticated camera systems, which allow the police to zoom in on street activity at night as well as during the day. Significant resources have also been poured into establishing data mining programs, where dozens of government agencies use the power of the computer and the ability to access records through the Internet and through commercial data brokers to obtain personal information about U.S. citizens as well as foreigners.

“The Supreme Court has held that, in essence, we don’t have privacy in public, so the cameras that watch what we do in the streets aren’t governed by the Constitution,” Slobogin said. “It has also held that any information that we give to third parties such as banks or schools or businesses or even doctors is no longer protected by the Fourth Amendment or the courts; the court says that we’ve essentially waived our Fourth Amendment protection when we decided to give information to a third party. So in both of those areas the Constitution is pretty much a dead letter.”

More than 120 government data mining programs gather personal information that can be connected to a particular individual, Slobogin says. These programs troll through financial, travel, and medical records, all with the goal of identifying patterns of behavior that might reveal terroristic or criminal activity.

“Privacy concerns seem to be very secondary to the government when it’s engaging in these kinds of surveillance programs,” Slobogin said. “While Congress or the executive branch has ended some efforts, there always seem to be new programs that crop up to take the place of the previous program. So until the government runs out of money, I think we’re going to continue to see these data mining endeavors, even though they tend to be very ineffective, and even though they can potentially gather huge amounts of personal information about people.”

Harvard Law School professor Carol Steiker said Slobogin’s book could not be more timely. “In the years since 9/11, the growing power and incentive of the government to collect information about its citizens have posed new and increasingly difficult questions. Scholars and students of these questions, as well as legislators and law enforcement officials, will find this book both a wide-ranging analysis of the implications of technological developments for the scope of personal privacy and enormously helpful conceptual framework for regulating the government’s surveillance power under the Constitution.”

As a result of his work in the area, Slobogin has consulted with the Department of Homeland Security about camera surveillance and was asked to serve on an American Bar Association Task Force established to devise rules governing transaction surveillance.