Last October several British newspapers reported that Prime Minister Gordon Brown’s government was working on a plan to monitor every phone call, website visit, text message, and email in the country, entering the information into an enormous database that would be used to catch terrorists, pedophiles, and scam artists. Dominic Grieve, the shadow home secretary, called it “a substantial shift in the powers of the state to obtain information on individuals” and warned that “any suggestion of the government using existing powers to intercept communications data without public discussion is going to sound extremely sinister.”
Home Secretary Jacqui Smith later gave a speech in which she said the electronic dragnet would be limited to data transmitted through websites and information about the identities and locations of senders and recipients. She said investigators would still need ministerial warrants, a kind of administrative subpoena, to listen to or read the contents of communications. The speech apparently did not reassure Ken MacDonald, director of public prosecutions for England and Wales. In late October, shortly before stepping down from his post, MacDonald warned that “decisions taken in the next few months and years about how the state may use these [surveillance] powers, and to what extent, are likely to be irreversible,” adding, “We need to take very great care not to fall into a way of life in which freedom’s back is broken by the relentless pressure of a security state.”
The episode illustrated two points that are reinforced by British journalist Ross Clark’s wry, revealing book The Road to Big Brother: One Man’s Struggle Against the Surveillance State. First, despite the U.K.’s reputation as one of the most watched societies in the world, with more surveillance cameras per capita than any other country, its citizens, notably including law enforcement officials, still care about privacy. Second, their complaints are more easily ignored than similar objections in the United States, where the Fourth Amendment and various statutes prevent the executive branch from unilaterally changing the rules regarding government snooping.
In the U.S., implementing a data collection program like the one contemplated by the British government would require not only the “public discussion” demanded by Dominic Grieve but congressional authorization. The legislation, in turn, would be reviewed by the courts, which are unlikely to allow so much heretofore private information to be gathered on so many innocent people, let alone bless routine wiretapping based on administrative subpoenas. Nor would American courts approve mandatory DNA sampling of every citizen and visitor, as a British appeals court judge has suggested, or let police stop people and search their pockets and bags at will, a policy Clark says is in the offing.
Still, there is much Americans can learn from the British experience with surveillance. Take all those cameras. So far in the United States, they have been limited mainly to detecting traffic violations, generating heated debate about whether they reduce or increase accidents and whether municipalities are sacrificing public safety for the sake of revenue (by reducing the duration of yellow lights, for example). But provided they focus only on public areas, there is no constitutional barrier to erecting surveillance cameras throughout the United States, until our country is as thick with them as the U.K. After all, the government could, in theory, post police officers on every corner, and they would be free to look and listen without violating anyone’s Fourth Amendment rights. Looking and listening from a distance does not change the constitutional question.
Yet there is something to be said, fiscal concerns aside, for not having a cop on every corner. The sense of being constantly watched tends to put a damper on things, potentially affecting the topics people discuss, the way they dress, the businesses they visit, even the books they read while sitting on park benches.
By Clark’s account, this cost is not worth paying. He says the evidence that the government’s surveillance cameras are effective at either deterring or detecting crime is thin. Facial recognition software aimed at catching known suspects has been a bust, easily foiled by poor lighting, hats, sunglasses, even a few months of aging. Clark argues that Britain’s cameras, which he describes as frequently unmonitored or out of order, are appealing as a relatively cheap way of seeming to do something about crime. He finds that “electronic surveillance is not always augmenting traditional policing; it is more often than not replacing it, with poor results.” Likewise, he says, huge collections of information gleaned from private sources such as phone companies, banks, and credit bureaus (along the lines of America’s renamed but not abandoned Total Information Awareness program) are unmanageable and rife with errors. Clark notes that “there is a fundamental rule about databases: the bigger they are, the more useless they become.”
Again and again, Clark finds, high-tech systems that seem at first to be outrageous invasions of privacy turn out to be outrageous boondoggles that not only don’t succeed at their official goals but actually get in the way of catching genuine bad guys and protecting public safety. “The excessive collection of data tends to act as a fog through which authorities struggle to find what they are looking for,” he writes. “The more Big Brother watches, the less he seems to see.”
As Clark emphasizes, an excessively nosy government poses many dangers, including exposure to fraud and blackmail, unjustified interference with freedom of travel, and mistaken incrimination. But it is reassuring to realize that government is not competent enough to be omniscient.