Tapdancing on the Razor’s Edge

The Beginning of Tyranny and the End of Privacy: A Nation of Suspects.

By J. D. Obenberger, Attorney at Law
© MM J. D. Obenberger, All Rights Reserved

Mr. Downtown Loop Commuter sails through the tollbooth at 15 mph courtesy of I-Pass and when he gets into the Loop, since he’s a monthly parker at Theatre District Parking, he flashes his coded magnetic disc on the way in. A sensor scans him and the gate opens without issuing a ticket. He stops at a drugstore and pays for his purchase with a check, careful to put his (unlisted) home phone number on the check, just as the clerk asks, and he takes an incoming cell phone call on the way out. Once inside his building, he uses a security card in the elevator to enable him to reach the floor where he works and getting into the office, he calls his bank (getting at first a message that the call may be “monitored to assure quality”). He fires up the pc, goes online, and starts to check his e-mail.

He has barely started his workday, but he has already created numerous redundant records of his activities which, like fruit on the tree, are there for the picking without much effort by those so inclined.

Almost every inch of his all-too-typical route has been recorded and captured for posterity, courtesy of the modern information age. And I haven’t yet even mentioned seven surveillance cameras that have taken and recorded videotape images of portions of this trip, from the tollbooth to his office. This man lives his life in a fishbowl, as to one extent or another, most of us living life in the maistream do.

The Illinois Department of Transportation and Standard Parking, which owns the Theatre District parking structure, each receive subpoenas from lawyers ordering them to disclose electronic records of the comings and goings of their customers, sometimes in divorce cases. Buildings -- even health clubs -- that swipe security cards must face the same issue because their computers also keep time and date records of the use of the card. They don’t have much choice other than to comply. The telephone number and driver’s license number that are written on the check have entered the stream of information commerce, and if you wanted to know how the telemarketers got your unlisted number, wonder no more. While you may think that they’re taking your phone number just to contact you should the check bounce, the most important financial reason for taking your home number is to sell it and thereby make a profit you never imagined from the transaction. (Thankfully, Illinois has outlawed the practice of requiring credit card numbers to accept a check!)

The courts have consistently held that you have no right to privacy in the actual phone numbers you key into your phone and no right to privacy in the numbers of people calling in to you. A substantial number of communications companies will release this information to anyone from a law enforcement agency (and possibly to others posing as law enforcement), without any warrant, and very likely, without even hearing a reason. The Justice Department under President Clinton has resolutely been zealously battling your individual privacy for years, and its latest assault is a proposal to require cell phone carriers to install systems to track you down wherever you are, within feet, when you use your cell phone. This proposal is cynically sold for public consumption as a way to increase the effectiveness of 911 in an emergency, but, of course, Big Brother is what gets the top cops in Washington salivating and actively lobbying for the idea. At least one honest deep-undercover law enforcement agent has told me that, with the tools now in the hands of law enforcement, “There just isn’t a right to privacy anymore.” I’m not sure whether he’s completely right, but he knows what he can find out better than I do.

Anyone who keeps up with this issue will know that Clinton’s administration has been fighting for laws that would introduce criminal penalties for encryption systems strong enough to frustrate the ability of their computers to decipher and decode your e-mail. This is like a law making it illegal to pull down the shades because it would interfere with a cop’s ability to make a plain view observation of criminal conduct in your bedroom. They have lobbied for all kinds of trapdoors in technology that would hardwire their ability to listen in and facilitate government snooping, and with each salvo, with each ever-more-outrageous demand, their earlier demands sound more and more reasonable, making for the dangerous possibility of compromises that sell away forever the privacy our parents and grandparents enjoyed. Once a recognized right of privacy is gone, it never comes back.

While the United States Supreme Court two weeks ago upheld a federal law to prevent states from selling driver’s license photos and information (Wisconsin alone was making $8 million a year by selling the personal information of its licensed drivers) the case says nothing about the relationship between individual and government. You should read Reno v. Corbin yourself on the web at http://supct.law.cornell.edu/supct/html/98-1464.ZO.html. Similarly, the Clinton Administration’s recent inititatives for privacy in medical records do little to protect you from government snoops, and can largely be viewed as window dressing to hide the abysmal record of this Administration which has most aggressively fought against electronic privacy.

We have now a bizarre and anomalous circumstance in the law of privacy concerning recorded conversations. It is the crime of eavesdropping to tape a conversation with another person in Illinois, secretly and without consent: Our State law requires all persons to know about the taping and consent. That’s why you hear the recorded phone announcements about “assuring privacy”. However, federal law say that any participant may freely tape the conversation: The federal view is that when you talk with someone, you obviously consent to that person hearing your words, and as a consequence, you have surrendered your right to privacy as against him, and therefore you have no reasonable grounds for complaint should he tape what you have told him. (The response to this is apparently too obvious for the federal judiciary to understand: In a state where such taping without consent is illegal, you have the right to assume that you are not being taped: If you knew that you were being covertly taped in violation of a state criminal statute, you might refuse to talk to the person at all, and therefore there is no voluntary, knowing, and effective waiver of the expectation of privacy.)

The result is that if a confidential informant were to secretly tape conversation, it would be suppressed and thrown out of any Illinois criminal prosecution or civil trial, while in a federal court, the evidence would be allowed in. But this makes no sense at all. The U.S. Supreme Court in Katz said that our conversations are protected whenever we have a personal expectation of privacy that is objectively reasonable as society would view the context of the situation. For example, in a phone booth. And we do not have two expectations of privacy, federal and state, but one: We judge whether what we are doing or saying is “private” by where we are and what we know about the situation, including our expectation that the people we are talking with have to obey the same laws on taping conversations that apply to us. What is “reasonable” to expect in the way of privacy depends on where we are, a public park or a locked hotel room for example, and the sum total of what the laws say about our privacy where we are. This is not an issue of “federal supremacy”. To the contrary, what we expect in privacy is the aggregate of all laws which protect it, not just the least protective laws. For purposes of the Fourth Amendment, Congress is without power, in my view, to ignore the expectation of privacy that arise from all the laws which control the behavior of the people we are talking with because it is reasonable for people in Illinois to understand their privacy as the lawmakers of their jurisdiction have defined it. And the linchpin of the Fourth Amendment is the word “reasonable”.

What is at stake broadly is the kind of world your children and grandchildren will live in. Will they have as much personal liberty as you have had? Will their lives be a constant submission to constant government proctology on the most sensitive aspects of their personal lives? An America remarkably similar to Orwell’s vision of 1984 is chillingly close. Though we don’t call the state-sanctioned control drug “Soma” (we refer to it as a “pharmaceutical antidepressant”) every tactic of that novel has been used in the battle to strip away that freedom which is your birthright as an American, to assure that you view the world not as it really is, but as the propaganda mill that is disguised as “mainstream journalism” reports it. And the large majority don’t even notice as the last shreds of privacy, autonomy, and liberty disappear.

No, the media highlights Terrorism, Kidnapping, and the Drug Cartels. The Press appeals to people’s fear of crime in order to convice them to barter their birthright, and that of generations yet unborn. The media characterizes the right to privacy as a mere technicality that clever and unscrupulous lawyers foist on courts to help criminals. They thunder, “What about the rights of the victim? Why do we coddle the criminals?” There is always an excuse from law enforcement to take away privacy. (They have lost a few battles, despite rhetoric that the invasions of privacy are needed by unusual and compelling reasons, and the sky has not fallen in yet. In fact, violent crime rates are tumbling downwards.) That’s the key. There’s always some excuse or another. And, except in war or situations that require martial law, the excuse is always a pretext to get into the personal affairs of all of us. The destruction of a privacy right enjoyed by a political activist who is suspected of “terrorism” is simultaneously the destruction of everyone’s right to that same privacy, whether a Boy Scout Troop, a Church, or the owners of an adult book store.

Let’s clear the air. If a criminal suspect doesn’t have a right to privacy that’s worth respecting, then neither do you. No one is a criminal in the eye of the law until they have been convicted and sentenced. Until that moment, he is just a citizen. The issue is not and never has been the rights of criminals: The issue is the right of all Americans to be let alone.

I have never been hurt by a terrorist bomb or by a drug cartel, and I think that the odds are pretty remote that I, or anyone I know, ever will be. But it is certain that everyone I know and love will ultimately be hurt by a society in which all citizens are presumed to be suspects, in which the government by law mandates the installation of technology that guarantees it easy and routine access to our most confidential communications.

We already live in a society in which ordinary citizens going to court for evictions or traffic tickets or personal injury cases are subjected to the kind of search that was reserved for arrested suspects when I was growing up. To condition entry into a public court on a surrender of the right to inegrity of the privacy of your person is to reduce the American nation to a nation of suspects. Am I the only one to resent that? Am I the only one in Chicago to remember what it felt like to be a free American? Am I the only one to think that checkpoints have no place in a free society?I hope not.

Because, perhaps with the possible exception of a few Trappist Monks and contemplative nuns, no one lives a life of complete moral rectitude, it is inevitable that the moral faults and minor crimes of many persons living entirely respectable lives will be uncovered, and they will be faced with either the destruction of their lives and reputations or the then-attractive alternative of becoming a co-operating informant. Where the government has “something” on everyone, where large numbers of people are then compelled to serve as informants, we have created a society made dysfunctional because no one trusts anyone else. That is the recent history of Eastern Europe. That it had overall a low crime rate was not a sufficient lure to keep the people in, and the Communists, in the end, had to build a wall with watchtowers and attack dogs to prevent mass exodus from the “workers’ paradise” of East Germany and the other satellite states. Given the choice of no crime and no liberty, and some liberty and some crime, people will always reject the former. I know of no immigrant family that ever came to these shores to find a lower crime rate, and I have known many immigrant families. They came here, as our own forebearers did, for personal liberty and economic opportunity. The invasion of privacy about which I am writing threatens to kill both, and with that, what has always been The American Dream.

What can you do?

  1. Become intolerant to intrusions into your privacy. Complain loudly after announcements that your call is being “monitored” for quality and demand that the recorder be turned off. Threaten to take your business elsewhere. Refuse to give your phone number and walk away if they won’t take your check. Learn to say, without shame, “It’s none of your business.” Call your congressman’s local office and ask that “It’s none of your business” replace “e pluribus unum” as our national motto. (The expression “Mind Your Business” actually did appear on early American coins!) Hang up rudely on telemarketers. Refuse to use the cards monitoring your purchase history at the food stores. Deal with people you trust and who trust you and refuse to deal with others to the largest extent you can. Demand always the reason why information is being sought from you and give none away without a damned good reason. Throw your portable phone in the trash. Keep your cell phone usage to a minimum (the technology is out there for anyone seriously interested to listen in, especially with analog cell phones), and answer your cell phone as the military does, “This line is not secure.” Shred your communications, especially those with your credit card numbers. Use encryption in your e-mail.
  2. Read Charlie Sykes’ new book, “The End of Privacy”, St. Martin’s Press, ISBN 0-312-20350-0 , $24.95, and available overnight from Amazon.com.
  3. Regularly visit the web stie of the Electronic Privacy Information Center, http://www.epic.org, a site that will scare the bejesus out of you with declassified White House papers documenting the hidden crusade against your privacy that is commanded from the Oval Office, with links to a page that will tell you everything that can be easily learned about you and your computer by anyone online. You will sit back and gasp.
  4. E-mail me at the address below with your horror stories of intrusions into your right to privacy. It is time to work together to keep what liberty we still have.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com