The new surveillance state

In 1965, FBI agents attached an “electronic listening and recording device” to the outside of a telephone booth. They suspected Charles Katz of using the booth to illegally place bets across state lines.

The listening device was a simple microphone (not a wiretap). The recording device is unidentified in court records, but given the technology of the time, it can only have been a manually operated, reel-to-reel tape recorder. 

To record the suspect, an FBI agent would have had to press record on the tape recorder when they thought Katz was likely to use the phone, kill time in the FBI van until he made the call, and then come back and press stop — hoping the device didn’t run out of tape in the meantime.

Surveillance was hard work in 1965.

Worse yet, the Supreme Court ruled that this evidence, so laboriously collected, was inadmissible. 

“The Government’s eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the telephone booth,” the majority ruled in Katz v. United States, “and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”

Katz was indeed using the payphone to illegally bet on sports. But the recording that proved his guilt also violated his constitutional rights. So his conviction in federal court was overturned on appeal. 

The precedent still stands: Americans have a reasonable expectation of privacy when speaking on a payphone.

But that no longer means much, because 1) payphones are increasingly hard to find, and 2) the law is increasingly falling behind the many new ways the FBI can surveil us.

Today, phone companies keep a record of virtually every call we make; GPS data tracks our movements in real time; a vast network of license-plate readers creates a searchable history of our travels; and the apps on our phones record what we search, text, read and buy.

All of this data is collected by private companies, mostly for the purpose of serving us ads. This means the FBI no longer has to decide in advance what to collect or even go out and collect it — they only have to decide later what to look for (after the fact) and then ask for it.

Despite Katz v. United States, they might not even have to ask a court for permission.

“Do they need a warrant?” privacy expert Andrew Guthrie Ferguson asks. “It’s an open question…because it’s hard to know whether or not there’s an expectation of privacy for the data this third party holds.”  

The result is a “data-broker loophole” that allows the US government to bypass the Fourth Amendment: Surveillance information it would previously have needed a warrant to collect can now simply be bought.

We provide most of that data ourselves by clicking “I agree” on the terms and conditions of the ever-growing number of apps and devices we use.

None of this data is off-limits.

In a 2016 case, prosecutors used data collected from a pacemaker to help convict a man accused of insurance fraud. The data showed the accused’s heart was beating at a normal pace during the time he claimed to have escaped his burning home by breaking and climbing out of a window.

Despite Katz, the judge allowed it.

The authors of the Fourth Amendment could not have anticipated the privacy implications of data collected from pacemakers.

This should make us rethink the privacy debate — especially now that AI can make sense of all this data.

“AI-driven mass surveillance presents serious, novel risks to our fundamental liberties,” Anthropic CEO Dario Amodei warns.

The warning came in response to Anthropic being declared a supply-chain threat by Pentagon officials who want the ability to use the AI for any purpose allowed by law — which seems perfectly reasonable at surface value. 

The problem, however, is that surveillance law has not been updated much since Katz.

“To the extent that such surveillance is currently legal,” Amodei added, “this is only because the law has not yet caught up with the rapidly growing capabilities of AI.”

People are starting to notice.

After Amazon’s Ring ran a Super Bowl ad showing how its network of doorbell cameras could search a neighborhood to find a lost dog, a social-media backlash ensued. Despite its claim of reuniting “a dog a day” with its owner, many did not want their neighborhoods surveilled by doorbells.

The ACLU said the ad was a “wake-up call” that revealed “just how powerful surveillance networks backed by AI have become.”

Ferguson thinks the call should be heard on both sides of the political spectrum. He cites the example of gun owners, who have long worried that a national registry of firearms would enable a left-leaning government to confiscate them.

Federal law prohibits such a registry. But Ferguson notes that the government no longer needs it: “Nowadays, with automated license plate readers, you put that outside a gun show or a gun range or where you buy ammunition [and] you don’t need a list. You can literally infer who has a gun by who’s going to the gun range.”   

The government could buy that license-plate data from a company like Flock Safety, no warrant required. 

Maybe not for too much longer, though.

The Government Surveillance Reform Act (GSRA) would ban the federal government from buying Americans’ data from data brokers without a warrant — and it’s co-sponsored by the strange bedfellows of Senators Elizabeth Warren and Cynthia Lummis.

Could AI make privacy bipartisan again?

Ferguson thinks it’s possible: “The world is waking up to dangers of centralized law enforcement that might be weaponized for political purposes.”

Nevertheless, new privacy legislation faces an uphill battle in Congress, thanks to a bipartisan group of “surveillance hawks” that guards the government’s ability to collect data on its own citizens.

So here’s a call to action: If, like Amodei, Ferguson, and the ACLU, you think privacy law desperately needs updating, consider calling your representatives in support of new legislation.

From a payphone, ideally.

(If you can find one.)

— Byron Gilliam