(Part 2)
Privacy advocates argue otherwise. When it comes to the definition of information "made publicly available by others," Chris Hoofnagle, an attorney for the D.C.-based Electronic Privacy Information Center (EPIC), claims public records taken out of their original context and lumped together are no longer "public" at all -- especially if only select customers can pay to see them.
"What [ChoicePoint] does is go out there and collect something that is free and public for good reasons," Hoofnagle says. "And they've twisted these beneficial collections of information into private and more dangerous purposes."
In other words, an individual record on file at the county courthouse showing how much you borrowed to buy your home should be available -- to the tax assessor or a nosy neighbor or whoever else feels like trudging down to the courthouse to dig it up.
But to give that record a new home, alongside the make and model of your car, every lawsuit filed by or against you, all your recent traffic tickets, the names and ages of your children, and any crime with which you've ever been charged, is to morph it from a benign court document into a crucial component of an unauthorized dossier, Hoofnagle claims.
Lee, of course, doesn't see things EPIC's way. "That's their view of the world," he says. "They're certainly welcome to that."
His depiction of ChoicePoint's dossiers leans more toward the FBI's. At a House subcommittee hearing in May, Steve McCraw, assistant director of FBI intelligence, testified that what privacy enthusiasts consider troublesome, law enforcement considers helpful -- when used responsibly.
"It's a nice tool. It ... saves valuable lead-time," McCraw said of the Bureau's use of ChoicePoint. "But it has to be done not on a fishing expedition. It's based upon a reason. There has to be a reason why you decided to run somebody through that database."
With only ChoicePoint and the FBI privy to who's being searched and under what circumstances, however, who's to control -- or even see -- what the government sees?
In August 2002, at a conference for the military's Defense Advanced Research Projects Agency in Anaheim, Calif., retired Adm. John Poindexter laid out his vision for protecting America against the threat of future terrorist acts. Despite his role in the 1980s Iran-Contra scandal, Poindexter had recently been named director of the government's new Total Information Awareness project.
"I think the solution is largely associated with information technology," Poindexter said. "We must become much more efficient and more clever in the ways we find new sources of data, mine information from the new and old, generate information, make it available for analysis, convert it to knowledge, and create actionable options."
Poindexter's ideas and the project he oversaw were among the most radical of the government's proposals in reaction to pre-9-11 intelligence failures. So it should come as no surprise that both Poindexter and TIA quickly raised some serious questions.
When new technologies develop, will politicians and the public have the gusto to ensure that the technologies' uses won't invade privacy? When emotions are cooked by an event of 9-11 magnitude, can one distinguish between the need to jack up intelligence-gathering skills in order to prevent another calamity, and the temptation to succumb to the kind of paranoia that heralds Big Brother?
In the case of TIA, the answer was a firm yes. Congress quashed funding for TIA before it got off the ground. Even after the name was changed to Terrorism Information Awareness, the program couldn't shake the stigma of an Orwellian police state. Soon after the speech in Anaheim, Poindexter resigned as TIA director.
But not all surveillance experiments are as hyperbolically named as Total Information Awareness, nor is it the norm for a mad admiral in the bowels of the Pentagon to be running the lab. The distinction between too little privacy and too much security is seldom so obvious.
The Constitution doesn't guarantee privacy, per se, but it does guarantee the right to be protected against unreasonable searches. Over the years the Supreme Court has equated that right to a guarantee of privacy.
But the meaning of an unreasonable search is in constant flux. In the 1970s, when the Privacy Act was drafted, there could be no unreasonable search carried out with the aid of the Internet. There was no Internet.
Nor did most people consider it a threat to privacy when, in late 2001, Congress passed legislation titled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. In light of the recent attacks on the World Trade Center and the Pentagon, the search powers bestowed by the legislation seemed reasonable enough -- unless you were inclined to hold the USA PATRIOT Act next to the Fourth Amendment, squint really hard and imagine the countless forms the act could take.
Among ChoicePoint's top officers, the PATRIOT Act is a reverent topic. The law makes it easier to deeply investigate individuals, presumably in the name of terrorism. But not only in the name of terrorism.
"I think that the opportunities that we have, whether they're in ... the PATRIOT Act or other areas are probably clear to us now," COO Curling told investors in September 2003.
Curling went on to say that ChoicePoint had received $10 million in Homeland Security funds in 2003, on top of $20 million the year before. During a conference call two months earlier, he told financial analysts: "Our success has been, and probably will continue to be, in taking the core competencies of ChoicePoint and finding opportunities to apply those in governmental or Homeland Security initiatives."
With that, Curling may have ushered in a new sort of Total Information Awareness: a centralized government database in corporate database clothing -- Poindexter's dream, privatized.
Despite ChoicePoint's assurances of self-regulation and its salutes to corporate responsibility, the fact is it's someone else's job, not ChoicePoint's, to impose restrictions on the company -- and to be sure they're enforced.
"The question is whether [federal surveillance programs] can be sneaked in," the ACLU's Stanley says, "in the shadows, when nobody's looking."
The list of Florida's erroneously purged voters, for example, almost dodged the light of day -- except that Palast, an American ex-pat working for the British media, broke the story.
Palast says he suspects that what almost went unnoticed in Florida does go unnoticed elsewhere, especially when it involves the federal government. Of course, he has no way of knowing for sure. "Ultimately, I was able to crack the system in Florida and get at the records," Palast says. "I can't with national security."
With Florida, however, Palast did attract the interest of someone who could tap into national security -- albeit shallowly and for a short while.
Former U.S. Rep. Cynthia McKinney, D-Lithonia, the only member of Congress to question and hold hearings on the role ChoicePoint played in the Florida election, first learned about the company after reading Palast's stories.
"Given the history of Republican dirty tricks and Democratic indifference about true minority voting rights and minority representation, I'm not surprised at anything that happens," McKinney told CL in an e-mail response to questions. "I am, however, disappointed that, to my knowledge, the culprits haven't been legally pursued to the fullest extent of the law. Instead, ChoicePoint continues to get government contracts."
McKinney says that before her defeat in the August 2002 primary, she was trying to investigate all the government's contracts with ChoicePoint.
"My work was cut short," she says. "But it still needs to be done."
Another of ChoicePoint's major critics also happens to be a defeated U.S. House member from Georgia -- one who rests at opposite end of the political spectrum.
Former Rep. Bob Barr, R-Smyrna, a former federal prosecutor and a civil liberties champion (as well as a CL columnist), calls the government's unfettered access to private databases inexcusable.
"I think clearly the government is now turning more and more to private industry to do its dirty work," Barr says, "to gather information on people, manipulate that information on people and, in so doing, circumvent the Privacy Act."
Barr says that up until recently, the quiet on Capitol Hill regarding private data collectors has been deafening.
"There is some growing recognition on the part of some members of Congress but not nearly enough," he says. "We're not nearly at the point yet where one could be optimistic about the success of any fundamental reform effort."
But there has been a congressional awakening, of sorts.
In July, Sen. Ron Wyden, D-Ore., introduced the Citizens' Protection in Federal Databases Act, which would require federal departments to report to Congress their use of private databases.
"Risks to personal privacy are heightened when personal information from different sources, including public records, is aggregated in a single file and made accessible to thousands of national security, law enforcement and intelligence personnel," says the bill, currently hung up in the Senate Judiciary Committee. "The Federal Government should be required to adhere to clear civil liberties and privacy standards when accessing personal information."
EPIC and the ACLU are backing the legislation, and EPIC's Hoofnagle calls it "one of the better bills out there."
"Sen. Wyden has had a lot of success in moving this type of legislation," Hoofnagle points out, "despite the fact that he's a Democrat in a Republican administration."
While conservative groups such as the Heritage Foundation have bristled at Wyden's proposed reforms, even ChoicePoint acknowledges there's a lag between the rapid pace at which data-collection technology has evolved and the slow modernization of laws and regulations. "We certainly agree that technology has far outstripped the legal framework," Lee says. "Our view of that would be, let's not debate whether this is good or bad. It is what it is. We can't roll back the technology. We can't make the information go away. So let's spend our time legitimately debating what are the uses of the data."
He says ChoicePoint welcomes the debate. But ChoicePoint's financial health, as the company's Securities and Exchange Commission filings attest, is highly susceptible to the success of the privacy debate and any ensuing legislative change.
The SEC documents describe how the lobbying efforts of "consumer advocates, privacy advocates and government regulators" could have an "adverse affect on our business." Of particular concern would be "an amendment, enactment or interpretation of laws," as well as "changes in cultural and consumer attitudes to favor further restrictions on information collection and sharing."
Any updating of the law would mean that ChoicePoint just might have to shrink from a potentially lucrative market -- as it did with the voter-scrub-list business and the assimilation of data on Latin Americans.
But the company has proved itself clever enough to adapt. Judging from the bold new lines of data it's developing, it will continue to do so.
ChoicePoint's hope for the future is to take data collection off the paper trail -- off the electronic paper trail, even -- and into the realm of biometrics.
Loosely defined, biometrics is a way of identifying individuals by their biological features, including fingerprints and DNA, as well as scans of our retinas, our facial bone structure and even the way we walk.
Hints about ChoicePoint's current biometrics experiment have surfaced in a federal lawsuit filed against the company in January. In the complaint, a New York technology consultant firm, International Biometric Group, is suing for breach of contract and violation of trade secrets.
According to court documents filed in U.S. District Court in Atlanta, ChoicePoint allegedly is $660,000 behind in payments for a "programming code for storing and transmitting biometric data ... that would result in the creation of central biometric authority." The complaint also states ChoicePoint has been providing access to technology, developed by IBG, that's "not commonly known to the public."
One privacy advocate says his reading of the lawsuit leads him to believe ChoicePoint might hold a clandestine contract with the FBI.
"It appears as though ChoicePoint has a contract with the criminal investigative division of the FBI that is so secret that they won't even tell us the contract number," says EPIC attorney Hoofnagle. "The FBI contract could deal with the issue of biometrics."
But according to Lee, ChoicePoint's biometrics project is not as cryptic as the complaint makes it seem. He says ChoicePoint's biometrics lab, Bode Technologies, intends to develop technology that will allow businesses to verify employees' identities using fingerprinting or some other biometric in the short term, DNA down the road. It will be a long while before DNA biometrics gets off the ground. "The usage of DNA and the acceptance of DNA," he says, "is one of those far-into-the-future applications."
Currently, Bode does accept DNA samples, Lee claims, but only from law enforcement agencies conducting an open investigation where DNA is an issue. Those samples arrive at the lab bearing a number rather than a name and are destroyed after ChoicePoint tags them with a 13-digit code that's handed over to investigators. "We have no knowledge whatsoever of whose DNA it is," Lee says.
As for creating government-accessible biometric databases, Lee anticipates it will be the distant future before government embraces such technology.
That's not quite the picture of biometrics recently offered to investors by Curling, however. "We're also pleased with the progress in our biometrics initiative," Curling said, "in integrating those into our PATRIOT Act offerings."
He did not elaborate. But Curling's words cement the notion that biometrics smacks of military and Homeland Security intrigue, and that ChoicePoint is a stranger to neither department.
There are in fact countless new methods of surveillance that technology has made -- or will soon make -- real. And we might know nothing about them, or the unintended tasks for which they might one day come in handy.
Already, some U.S. airports have installed face-recognition systems programmed to find fugitives. The ACLU has expressed concern about technology allowing cell phone providers to receive signals tracking their clients' every move. Stanley, at the ACLU, says he's also concerned that private companies may be poised to record and sell buying patterns, or even an individual's every credit and debit card purchase.
"The fact that somebody has on record that you went to the Gap on Oct. 10, 2003, and bought a sweatshirt is not a big deal," Stanley says. "But that's like one pixel. When you start to put together every single purchase you've ever made and everywhere you've traveled and your educational records and your financial records ... it's like putting all those pixels together into a very high-resolution image of how you live your life."
If your exact location could be revealed by your cell phone, would you start thinking twice about where you go? Would you quit carrying the phone? If your purchases were monitored, would you reconsider what you're buying? Would you carry cash instead of plastic?
And would those seemingly small decisions mark the start of a major sacrifice: the moment when you first began forgoing the opportunity to live your life freely for the government's promise of living it securely?
Cell phones and credit cards were created for a legitimate purpose and, without restrictions, could be adapted for another, highly intrusive end. That bodes poorly for advancements in, say, harnessing the very essence of you -- be it your DNA or public records bearing your name.
About his protagonist in 1984, Orwell writes: "He knew in advance what O'Brien would say. That the Party did not seek power for its own ends, but only for the good of the majority. That it sought power because men in the mass were frail cowardly creatures who could not endure liberty or face the truth, and must be ruled over and systematically deceived by others who were stronger than themselves. That the choice for mankind lay between freedom and happiness, and that, for the great bulk of mankind, happiness was better."
mara.shalhoup@creativeloafing.com
12.04.03
atlanta.creativeloafing.com
steve |
