Academic journal article Independent Review

Conning Congress: Privacy and the 1994 Communications Assistance for Law Enforcement Act

Academic journal article Independent Review

Conning Congress: Privacy and the 1994 Communications Assistance for Law Enforcement Act

Article excerpt

Despite a benign-sounding rifle, the 1994 federal Communications Assistance for Law Enforcement Act (CALEA) (1) is emblematic of today's ubiquitous government encroachment on the privacy of Americans. Although represented prior to passage as an innocuous measure intended only to maintain existing government authority, CALEA as statutory law immediately became a springboard in the government's quest for increased surveillance power. Indeed, in implementing CALEA through its Third Report and Order of August 31, 1999, the Federal Communications Commission (FCC) gave the Federal Bureau of Investigation (FBI) unprecedented power, first, to track the physical location of cellular phone users and, second, to obtain the content of private communications in a variety of circumstances without a probable-cause warrant. How and why CALEA achieved passage, how overreaching federal officials have used it, and how recent court rulings have affected CALEA's implementation reveal much about the multifaceted threat to privacy emerging in the United States as the new millennium begins.

Today many people resent the invasion of their privacy by commercial firms' use of new Internet software capabilities. As software "cookies" record our paths through the Internet and private firms seek to amass commercially valuable profiles of us, increasingly detailed portraits of our personal lives are being compiled by strangers without our consent.

Yet when government intrudes on personal privacy, the stakes are even higher. Already the central government has mandated the creation of vast databases recording every check we write, every bank deposit we make, every new job we take, every employee we hire, our income, our educational experiences, even medical information given in confidence to physicians (Twight 1999). Federal databases linked to Social Security numbers continue to proliferate. Moreover, although the federal government continues to resist private encryption not transparent to government authorities, projects such as the National Security Agency's (NSA) Echelon and the FBI's Carnivore sweep ever more personal information into the hands of the government. (2)

The direct threat to individuals arising from the collection of such information is not the only issue. The very existence of widespread surveillance by persons with broad powers and uncertain motivation radically changes the ethos of a free people. Long ago the utilitarian philosopher Jeremy Bentham elucidated the consequences of such intrusions. Seeking a superior method for getting inmates to comply with prison rules, Bentham in 1787 designed an institutional architecture intended to strip inmates of all privacy and to make them continuously vulnerable to observation by a government official. Bentham called it the Panopticon. As Reg Whitaker describes it,

   The idea of the Panopticon is simple. Imagine a prison constructed in
   circular form. On the outer perimeter of each level are the individual
   cells, each housing a single prisoner and each entirely isolated from the
   other to make it impossible for a prisoner to see or hear fellow prisoners.
   Each cell is visible to the gaze of the Inspector, who is housed in a
   central office from which he can scan all cells on the same level. Through
   a system of apertures and communication tubes ... each prisoner is aware of
   the potential scrutiny of the Inspector at any time of the day or night.
   (1999, 32-33)

Because the prisoners "fear that they may be constantly watched, and fear punishment for transgressions, they internalize the rules," so that actual punishment becomes largely unnecessary. Whitaker views this "discipline via surveillance" at the core of Panopticon as a "technique of power internalized, of power exercised without the direct presence of coercion" (33-34).

The broad implications of Bentham's metaphor for the wielding of government power today are apparent. …

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