'We may wake up and find we're living in Oceania'


"We are the dead," he said.

"We are the dead," echoed Julia dutifully.

"You are the dead," said an iron voice behind them.

They sprang apart. Winston's entrails seemed to have turned into ice. …

"It was behind the picture," breathed Julia.

-- excerpt from "1984," by George Orwell

In the preface of the 1983 paperback edition of Orwell's classic, Walter Cronkite writes, "It has been said that '1984' fails as a prophecy because it succeeded as a warning -- Orwell's terrible vision has been averted. Well, that kind of self-congratulation is, to say the least, premature. 1984 may not arrive on time, but there's always 1985."

A case involving police sneaking onto a suspect's private driveway and, without a warrant, attaching a GPS tracking device to his car, recently passed constitutional muster with the 9th U.S. Circuit Court of Appeals in San Francisco. Chief Judge Alex Kozinski failed to persuade his fellow jurists to rehear the matter. The motion for an en banc hearing was denied.

"The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory," Kozinski wrote in his dissent. "1984 may have come a bit later than predicted, but it's here at last."

Technology is taking a battering ram to the Fourth Amendment, which dictates we should be secure in our "persons, houses, papers, and effects, against unreasonable searches and seizures …"

In the 1920s, the courts ruled the testimony of two officers, who trespassed on a defendant's land, concealed themselves 100 yards away from his house and saw him come out and hand a bottle of whiskey to another, was inadmissible in court. They violated the Fourth.

But the court ruled someone who installs in his house a "telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house, and messages while passing over them, are not within the protection of the Fourth Amendment. Here those who intercepted the projected voices were not in the house of either party to the conversation."

Congress changed that, fortunately. Now Congress and the courts are dealing with still more technology changes.

The Obama administration plans next year to introduce legislation that would require all Internet service providers -- from BlackBerry to Facebook to Skype to whatever -- to make it possible for law enforcement to intercept and unscramble encrypted messages.

In a New York Times article this past week, critics of the proposed law warned that it could create holes in security that could be exploited by hackers. The article quoted a computer science professor who said it has already happened in Greece, which has such a law. Hackers were able to eavesdrop on the country's prime minister by using law enforcement's "back door" entry.

That cell phone you carry is already being targeted by law enforcement, because it either contains a GPS device or can be tracked by cell phone towers off of which it bounces signals. A February Newsweek article reported police were able to find murder suspects by determining whose cell phone was near the murder, and narcotics agents followed a drug shipment as the driver's cell phone "shook hands" with each cell phone tower it passed.

The story said cell phone information requests have become so frequent that one company simply created a website where law enforcement can access data without issuing constant subpoenas to the company.

Judge Kozinski pointed out the Big Brother aspect of the technology that is eerily evocative of the novel, "By tracking and recording the movements of millions of individuals the government can use computers to detect patterns and develop suspicions. It can also learn a great deal about us because where we go says much about who we are. Are Winston and Julia's cell phones together near a hotel a bit too often?"

The judge concluded his call for a rehearing of the GPS case by the full court with these words:

"There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime (Kozinski was born in Romania), there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we're living in Oceania."

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and constitutional issues. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.

 

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