Blog Post

Welcome to the new world of passive surveillance

Anyone who has watched a crime procedural knows the hallmark images of surveillance: a man sitting with headphones on and recording the call in the next room, a security guard eating donuts in front of dozens of security camera TVs, a person with binoculars peeking from a parked car into a house.

But the Internet Age has ushered in a more sophisticated — and notably — passive form of surveillance, and it’s that technique that the government is using in its PRISM program.

And it raises the question: If a piece of information has been collected but has never actually been seen by the human eye, is it considered surveillance?

It sounds like a terrible lateral thinking puzzle or a zen metaphor, akin to whether or not sounds are heard when a tree falls. But the government’s embrace of data mining and similar activities, ostensibly spurred by the Bush Administration post-9/11 and the law enforcement-expanding Patriot Act, has erupted in the last week’s NSA surveillance scandal. Data mining is happening all around us, and when the government gets involved, the implications become much more visible and politcally explosive.

We experience data mining every day as we interact with the web, particularly when it comes to ad targeting and “custom” content on places like Facebook and Google. It’s the reason why you’ll see ads for new washing machines the moment you email your best friend about yours being on the fritz, and it’s why you see your sister’s information on your Newsfeed more often than that of your coworker’s old roommate. Algorithms detecting patterns are like the rotisserie chickens of the internet: You can set it and forget it, and it’ll do the work for you.

But what might be the ethical concerns that arise when  ad-tech companies mine data become legal concerns when the government gets involved — simply because it isn’t using the data to sell things, but to potentially arrest people. In other words, the grey areas around data mining becomes starker, and the danger to constitutional rights becomes more apparent. The Fourth Amendment states the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This is all well and good, but what about data that isn’t necessarily being “searched” or “seized,” but rather filtered and stored? While the NSA has massive amounts of big data, more than could ever be individually seen by a single person (or even a team of people), that information is still there. And, even if someone isn’t doing anything “wrong,” the government can still check for patterns.

This undefined zone that has been pushed and pulled for the last 12 years is going to be the lasting legacy of the government’s struggles with the online world. And, much like one of those lateral thinking puzzles, it needs a lot more positing before we can come up with a good answer to it.

4 Responses to “Welcome to the new world of passive surveillance”

  1. anonman

    detectives should go door to door. they could search every american house or apartment going through all the closet and dressers. they could could take an inventory of everything present. this could than be filed away. if the person ever come under any suspision the data could than be reviewed for evidence of guilt, otherwise it would just sit on a shelf.

    why would anyone think a search warrant would be required? the evidence would only be sitting ready if the person cam under suspicion at any time in the future.

  2. Interesting post…some observations:

    It’s not just about presence or absence of human data perception, but whether human visibility of inference or machine generated predictive extrapolation based on the raw data (and relative to other data that may have nothing to do with you) represents surveillance. For example, if my surveillance tells me that you’re in New York this week, even though you live in Denver, the awareness of that data could be deemed a breach of privacy. However, if that same data – coupled with all sorts of other data and fed through pattern matching and predictive algorithms – tells me that there is a 95% probability that you’re going to be in New York next week, that’s just a sum, right? So knowing that it is mathematically likely that you’ll be somewhere next week – it’s not a fact, it’s an analysis. Is knowing this (the probable future) and nothing else (the past) a breach of privacy?

    In addition, surveillance – depending on who is surveilling – may not really be a breach of privacy in a material sense, if the subject being surveilled is relatively anonymous to the surveillor. It seems to me that a breach of privacy only has an impact on the subject when their lives are in some way compromised or undermined by the data revealed. Therefore ‘passive’ surveillance, presuming an absence of relationship between the object and the subject save for the surveillance itself, may not actually be harmful at all in itself.

    A more worrying prospect for the government should be the duty of care that accrues to them as a result of their collection and storage of personal data. There is a liability that attached, and while the action may be borderline permissible in the interests of national security, its abuse or misuse could have very significant legal repercussions.

  3. coder543

    “And it raises the question: If a piece of information has been collected but has never actually been seen by the human eye, is it considered surveillance?”

    I would be far more comfortable if the data were being processed, end to end, by an AI. If the AI determines the data isn’t useful, it disposes completely of said data. Storing any data beyond what the AI determines to be an immediate risk is just dangerous. That data could fall into anyone’s hands. The AI should then generate an alert for any risk data.

    Yet, I don’t believe the government, which is “of the people, by the people, and for the people” has the right to do anything which the majority of said people disagree with. That includes excessive surveillance, which would fail in any public vote. The government exists to serve its people, doesn’t it? Maybe it’s supposed to be the other way around and they just forgot to tell the people.

    • While you were asleep

      Ha, welcome to your new police state…what you didn’t see this coming? Why do you suppose the ultra rich elitists want the Constitution, especially 2nd Amendment, shredded. Just submit your DNA sample here.