The Constitution and Big Brother: George Orwell’s Worst Nightmare

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A government that reads its citizens’ emails, tracks its citizens’ movements, and listens to conversations of citizens in their homes was once the subject of science fiction novels. That such a society would exist in the democracy of America that was founded on principles of freedom and natural rights was unimaginable. But recent developments in technology that is in the hands of most Americans on a daily basis have made almost constant surveillance readily available to the government and to large companies. The founding fathers of the United States could never have envisioned the issues created by modern technology and terrorism.

Mass surveillance is not high on the list of concerns for the average American. Most adults are more concerned with the highly politicized nature of the government, the government shutdown, or the next big election. Perhaps following Edward Snowden’s reveal of the vast extent of government surveillance, people became more aware of the ways it can be used unethically. But many Americans believe that if “I have nothing to hide, I have nothing to fear” and do not consider the possibility that the government may use mass surveillance to invade their personal privacy. Now more than ever, the discussion of surveillance needs to be happening in our homes.

When our country was formed, the founding fathers wrestled with balancing the rights of the people with the need for a strong central government. Their solution was to create an amendment to the Constitution that protected American citizens from government involvement in their lives. We know this today as the Fourth Amendment. While the right to privacy is not specifically set forth in the Constitution, it is inferred from the Fourth Amendment in combination with elements of the First, Third, and Fifth Amendments. Case law including Roe v. Wade, Katz v. United States, and Carpenter v. United States have also contributed to the development of the right to privacy.

How does this right relate to technology? Technology is a normal part of the daily lives of most Americans. Most of us have cell phones, and many of us use features on our phones that can be used to place us at a particular location at a certain time (i.e. Find my Friends or Snapchat’s Snapmaps feature). Similarly, GPS devices can be found in modern cars. Many people have laptops with webcams or use home assistant devices like Alexa or Google Home. Theoretically, the government can access those devices to obtain information about Americans through two important laws: the Foreign Intelligence Surveillance Act (FISA), and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act).

FISA establishes the protocol for the surveillance of foreign intelligence suspected of espionage or terrorism when that person is located outside of the United States. The PATRIOT Act, passed just 45 days after 9/11, allows for surveillance of both foreign and domestic suspected terrorists. These laws give the government vast powers with the potential for widespread and unethical violations of the privacy rights of Americans because they allow for surveillance not only of suspected terrorists, but also of people with remote connections to suspected terrorists.

To comprehend the privacy debate, it is important to understand the reason the government needs to access information of its citizens. National security became a priority following 9/11 and the War on Terror. In order to protect its citizens, the government has the power to use technology to access certain communications for the purposes of stopping terrorist acts before they happen. One way the government does this is to surveil and collect communications of suspected terrorists by accessing their cell phone records, bank records, GPS location, emails, medical records, etc. Many Americans feel that such surveillance is acceptable if it could prevent another 9/11, a school shooting, or some other terrorist attack. While this point of view is certainly warranted, we must be careful to avoid the proverbial “slippery slope” that could lead to even more amplified government surveillance as has been seen in Big Brother-esque societies like China, Singapore, and India, and even in western cultures such as Great Britain, France, Switzerland, and Germany.

China has developed frighteningly invasive technology to monitor the actions of its citizens. They have recently created a new robotic Dove that has the capability to blend into the environment because it looks and acts exactly like a bird flying in the sky. These Doves are fitted with high definition cameras, GPS antennas, and a flight control system, and they are able to climb, dive, flap their wings, and turn in the air. Because they look like real birds, they are able to evade both human detection and radar. They can fly up to 25 miles per hour for 30 minutes. The Doves have been used to surveil the Chinese people in provinces known for displaying anti-Chinese sentiment. The Chinese also have new facial recognition technology that scans the public for criminals. Huge outdoor screens at busy intersections display lawbreakers, including those guilty of minor crimes such as jay-walking, and they even list the names and show the faces of those that have not paid their debts. Chinese law enforcement is testing a new sunglass surveillance program that uses technological glasses to pick individuals out of a crowd. If the face or information matches a suspected criminal, police seize the person then and there.

Based on information gained from surveillance, the Chinese government arrests people that are deemed to be a threat to the government, even if they are not suspected of committing a crime. They are able to get away with this extreme extension of government surveillance because it is under the guise of preventing Islamic extremism and terrorism, much like the rationale of the American government.

Alarmingly, surveillance laws and technology similar to those found in Asia and Europe have made their way to the United States. Amazon’s Rekognition program, which allows photos and videos to be uploaded to Amazon and compared to facial scans from a live camera feed, has been used by law enforcement in Orlando and Oregon. Rekognition can identify over 100 faces in a crowd by just comparing photos to the real feed. There are undoubtedly some benefits to these technologies, but they can easily be used to target minorities, immigrants, protesters, and other groups.

While in some cases surveillance is seemingly beneficial in that it can lead to the arrest of criminals, it is crucial to understand that the government can use surveillance for sinister purposes. It is also critical to consider the limitless power that the government could gain over its citizens through surveillance that could be used to thwart fundamental principles of American ideology. If the government can use its surveillance powers to stop evil such as terrorism, it can also use the same powers to commit evil. In its most basic form, such powers could easily allow for the regulation of speech or press, to deny rights based on race or religion, or to silence critics of the government. This is not so far-fetched an idea to imagine in the current political climate. Those that believe such a society could never exist in America need to think again. It is imperative to understand the balance required between the need for protection against foreign terrorist threats and the inherent right to privacy.

If you own a smartphone, a home assistant device, or a laptop, you could be the subject of surveillance. These devices can easily be accessed by the government and essentially used to follow your every move. While this is cause for concern for many privacy advocates, it is not realistic to expect modern Americans to give up their cell phones or go off the grid. But you should be aware — be aware of what you say in your home, be aware of what you type on your phone, and be aware of how you act around your technology — you never really know who is watching.

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David Whitehurst

David Whitehurst is a senior in his seventh year at Episcopal and a graduate of St. James Episcopal Day School. He is a captain and varsity runner on the Episcopal cross country team and a state champion track athlete. David became interested in the Constitution and technology through his AP Government class, and his thesis evolved to focus primarily on the right to privacy. David is the owner of a smartphone, a laptop, and an Alexa device.

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