``Technology has changed the world we live in. . . . Today there is much less expectation of privacy.'' That's what Alan I. Horowitz, a Justice Department official, told the United States Supreme Court recently in trying to justify the Environmental Protection Agency's (EPA) aerial surveillance of Dow Chemical Company's plant in Midland, Mich. EPA was looking for violations of the federal Clean Air Act. Dow wouldn't give the federal agency clear access for a ground search of its facility. So the regulatory group took to the air and snapped photos, which verified their suspicions.
Dow cried ``foul.'' Aerial surveillance, particularly without a search warrant, is illegal, they said -- a violation of the Fourth Amendment, which protects citizens from ``unreasonable searches and seizures.'' And it took to the courts. The litigation now is in the hands of the nation's highest judicial tribunal.
In its Supreme Court deliberations, Dow acquired an unlikely legal bedfellow -- a convicted marijuana grower from Santa Clara, Calif. Dante Ciraolo's nemesis was the local police department, which -- unable to peer through his 10-foot-high fence to verify a report he was growing ``pot'' in his backyard -- also took to the air, sans warrant, and found evidence of illegal doings. After conflicting lower court decisions, Mr. Ciraolo's cause also found its way to the Supreme Court. And it was heard in
tandem with the Dow matter.
Although the cases will be decided separately, it will be difficult for the justices not to make comparisons. Some of the questions are predictable: For example, is aerial surveillance of a suspected home-grown drug operation any more or less legally acceptable than flying over a commercial plant to glean evidence of violations of federal regulations?
And should the police and public agencies be allowed to enter ``air space'' above a private facility without a search warrant? Why isn't this as serious a violation of civil rights as it would be if authorities, minus a court order, broke into a private home?
But perhaps a more basic issue for society -- one which will doubtless be debated long after these two cases are adjudicated -- is whether Mr. Horowitz is right: that the arrival of the new technology diminishes citizens' expectations of privacy.
Obviously, this controversy reaches much farther than the use of aerial surveillance. It involves the use or misuse of technology by government and private parties to invade the privacy of others. Today, legal and ethical issues are already swirling around questions involving cellular mobile phones, electronic mail, call-detailing systems, and lie detector tests.
A recent report from the congressional Office of Technology Assessment (OTA) indicates that, although existing law strictly limits public and private electronic surveillance of conventional telephone calls, the ``new telephone technology was not envisioned when current legal protections were enacted.'' OTA charges that, as a result, ``statutory protection against telephone surveillance is weak, ambiguous or nonexistent.''
Civil libertarians and others concerned about invasion of privacy are proposing congressional legislation that would extend Title 3 of the Crime Control Act of 1968 to cover what Rep. Robert W. Kastenmeier (D) of Wisconsin calls ``any conceivable mix of medium and message.''
However, there are strong arguments on both sides. The Justice Department says any further restraints on its access to electronic mail -- where phone lines are used to convey data and other information -- could severely hamper law enforcement. They insist that probing of electronic mail should require no more than the simple warrant required for government officials to intercept a letter posted with the Postal Service. But opponents point out that access to electronic mail usually involves much more tha n a single communication -- often a whole complex of messages and records. Hence, it should be more strictly regulated than printed matter.
Another controversy surrounds protection for cellular mobile phones, which use radio rather than wire transmissions. These devices are particularly vulnerable to eavesdropping, since the equipment needed for interception purposes is easy to obtain.
The cellular industry itself says it is time for the law to catch up with technology in this area. However, radio hobbyists and others insist that government regulation would unfairly -- perhaps unconstitutionally -- limit their traditional freedom to scan the airwaves.
Perhaps the use of call-detailing systems -- a phone monitoring system now being utilized by an estimated 30,000 businesses across the United States, with projected installations to grow by as much as 30 percent per year -- is stirring the most debate among the public, says the National Law Journal. Some professional firms use them to automate client billing. Other businesses use them to detect misuse of work telephones by employees for private calls. Still others say this is a way to improve workers' p erformance by listening to their mistakes in dealing with clients and correcting them.
In this case, however, without regulation privacy is admittedly thrown out the window. Misimpressions can be gleaned by listening only to segments of conversations. And unions and workers say this information has been used in the past to unfairly discipline, or even dismiss, workers.
Similarly, increased use of computer-matching by law enforcement agencies has resulted in erroneous charges and arrests. The federal government's recent decision to use polygraph tests more widely on workers suspected of espionage has spurred disagreement between those who say this is an effective way to catch spies and others who are troubled that lie detectors are often inaccurate and could lead authorities to incorrect assumptions.
Two axioms seem to have grown out of the discussion about technology and privacy. Unfortunately, they are in conflict: (1) Technology doesn't invade privacy. It's what people do with it; and (2) if technology provides an easy way to get information -- without the curbs of legal restrictions -- it will be used, perhaps misused.
One can only trust that self-restraint -- based on built-in moral and ethical checks -- will deter individuals, companies, and government from abusing power. A Thursday column