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Remarks Of Senator Patrick Leahy
The Dawn of Micro Monitoring: It's Promise, And Its Challenges
To Privacy And Security
Conference On “Video Surveillance: Legal And Technological Challenges”
Georgetown University Law Center
Tuesday, March 23, 2004
First, I want to thank Georgetown University Law
Center for hosting this conference. It’s always good to have an
opportunity to return to my alma mater. I also thank the Center for
American Progress, The Constitution Project and Wilmer, Cutler and
Pickering for their roles in supporting this event. As a former
prosecutor I am especially glad for the strong representation here
from the law enforcement community. Chief Ramsey, good to see you
again. And thanks to all the experts who have gathered here today to
talk about these timely issues.
People Want To BE Safer
In our post-9/11 world, technology often has been
our crucial but silent partner in helping us to ramp up our law
enforcement and national security capabilities. We in this city are
profoundly aware of the new risks we face. But we also need to do it
right. The public does not want false assurances, nor do they want to
be unduly alarmed. What the American people want is to actually be
safer. And we still have a way to go in accomplishing that.
Tension Between Liberty And Security
In our constitutional system there is always
tension between liberty and security – and never more so than since
September 11th. One of the difficult challenges we face is
to strike the right midpoint. Our constitutional checks and balances
are intended to help us do that.
The video technologies you are discussing today
offer tools that are better, faster and smarter, on scales of
magnitude that are unprecedented. As an advocate of emerging
technologies who also has a keen interest in them, I watch these
breakthroughs with great interest.
I have sought to find ways to encourage the
commercial sector to create new products and opportunities, and I have
promoted use of new technologies by law enforcement agencies, while
also protecting consumer privacy and constitutional freedoms. That
was the balance I sought to strike in my work on CALEA and in other
legislation that blends law enforcement’s needs, the needs of our
robust technology sector, and the privacy interests of the American
people. The hands-off approach to the Internet that I have favored is
another example, and right now I am working with others to extend the
Internet tax moratorium, to keep the Internet free from discriminatory
and multiple state and local taxes.
On The Cusp Of A Micro-Monitoring Revolution
The marriage of information-gathering technology
with information storing technology, manipulated in increasingly
sophisticated databases, is beginning to produce the defining privacy
challenge of the information age.
Modern databases, networks and the Internet allow us to easily
collect, store, distribute and combine video, audio and other digital
trails of our daily transactions. We are on the verge of a revolution
in micro-monitoring – the capability for the highly detailed,
largely automatic, widespread surveillance of our daily lives.
RFIDs
And one of the most dramatic and dazzling new
challenges we all will be facing soon is the emergence of a relatively
new, surveillance-related technology called radio frequency
identification -- R–F–I–D for short.
RFID tags are tiny
computer chips that can be attached to physical items in order to
provide identification and tracking by radio. Their potential
invasiveness is obvious from their size, which, as shown in this
picture, already is surprisingly small. And they will only get
smaller.
In their basic function, RFID chips are like
barcodes, which by now are ubiquitous in our stores and offices and
crime labs and manufacturing plants.
Barcodes On Steroids
But RFID chips are like supercharged barcodes –
barcodes on steroids, if you will. They are so small they can be
tagged onto almost any object. They do not have to be in open view;
RFID receivers just have to be within the vicinity – at a security
checkpoint, in a doorway, inside a mailbox, atop a traffic light. And
RFID chips can carry a lot more information than barcodes. Some
versions are recordable so that they can carry along the object's
entire history.
RFID chips are more powerful than today’s video
surveillance technology. RFIDs are more reliable, they are 100
percent automatic, and they are likely to become more pervasive
because they are significantly less expensive, and there are many
business advantages to using them. RFIDs seem poised to become the
catalyst that will launch the age of micro-monitoring.
I have followed RFID technology for some time and
have welcomed its potential for many constructive uses. I have
supported the use of RFIDs in a Vermont pilot program for tracking
cattle to curtail outbreaks, like mad cow disease, and our Vermont
program is now being emulated for a national tracking system. RFID
technology may also help thwart prescription drug counterfeiting, a
use the FDA encouraged in a recent report. Leading retailers like
Wal-Mart and Target – as well as the Department of Defense -- are
requiring its use by suppliers for inventory control. Fifty million
pets around the world have embedded RFID chips. Of course, many of us
already have experience with simpler versions of the technology in
“smart tags” at toll booths and “speed passes” at gas stations.
But this is just the beginning. RFID technology
is on the brink of widespread applications in manufacturing,
distribution, retail, healthcare, safety, security, law enforcement,
intellectual property protection and many other areas, including
mundane applications like keeping track of personal possessions. Some
visionaries imagine, quote, “an internet of objects” – a world in
which billions of objects will report their location, identity, and
history over wireless connections. Those days of long hunts around
the house for lost keys and remote controls might be a frustration of
the past.
These all raise exciting possibilities, but they
also raise potentially troubling tangents. While it may be a good
idea for a retailer to use RFID chips to manage its inventory, we
would not want a retailer to put those tags on goods for sale without
consumers’ knowledge, without knowing how to deactivate them, and
without knowing what information will be collected and how it will be
used. While we might want the Pentagon to be able to manage its
supplies with RFID tags, we would not want an al Qaeda operative to
find out about our resources by simply using a hidden RFID scanner in
a war situation.
Drawing Lines
Of course these are just some of the foreseeable
possibilities, and a lot depends on enhancements in the technology,
reductions in costs, and developments in voluntary standard-setting,
systems and infrastructure to manage RFID-collected information. But
the RFID train is beginning to leave the station, and now is the right
time to begin a national discussion about where, if at all, any lines
will be drawn to protect privacy rights.
The need to draw some lines is already becoming
clear. Recent reports revealed clandestine tests at a Wal-Mart store
where RFID tags were inserted in packages of Max Factor lipsticks,
with RFID scanners hidden on nearby shelves. The radio signals
triggered nearby surveillance cameras to allow researchers 750 miles
away to watch those consumers in action. A similar test occurred with
Gillette razors at another Wal-Mart store.
These excesses suggest that Congress may need to
step in at some point. When privacy intrusions reach the point of
behavior that is absurdly out of bounds, we find ourselves having to
deal with such issues as the “Video Voyeurism Prevention Act,” a bill
now before Congress that would ban the use of camera to spy in
bathrooms and up women’s skirts, a practice that by now has even been
given a name, “upskirting,” which I’m sure is as new to you as it is
to most of us in Congress.
Other powerful new technologies are on the
horizon, like sensor technology and nanotechnology. All the more
reason to think about these issues broadly and to establish guiding
principles serving the twin goals of fostering useful technologies
while keeping them from overtaking our civil liberties.
With RFID technology as with many other
surveillance technologies, we need to consider how it will be used,
and will it be effective. What information will it gather, and how
long will that data be kept? Who will have access to those data
banks, and under what checks-and-balances? Will the public have
appropriate notice, opportunity to consent and due process in the case
mistakes are made? How will the data be secured from theft,
negligence and abuse, and how will accuracy be ensured? In what cases
should law enforcement agencies be able to use this information, and
what safeguards should apply? There should be a general presumption
that Americans can know when their personal information is collected,
and to see, check and correct any errors.
These are all questions we need to consider, and
it is entirely possible that Congress may decide that enacting general
parameters would be constructive. It is important that we let RFID
technology reach its potential without unnecessary constraints. But
it is equally important that we ensure protections against privacy
invasions and other abuses. Technology may also help with the answers
-- for example, “blockers” that deactivate RFID tags, and software
that thwarts spyware.
Beginning A National Dialogue
There is no downside to a public dialogue about
these issues, but there are many dangers in waiting too long to
start. We need clear communication about the goals, plans and uses of
the technology, so that we can think in advance about the best ways to
encourage innovation, while conserving the public’s right to privacy.
We have seen this time and time again where a
potentially good approach is hampered because of lack of communication
with Congress, the public and lack of adequate consideration for
privacy and civil liberties.
Take for example the so-called CAPPS II program.
No doubt in a post-9/11 world, we should have an effective airline
screening system. But the Administration quietly put this program
together, collected passengers’ information without their knowledge
and piloted this program without communicating with us and before
privacy protections were in place. The result was a recent GAO
analysis that showed pervasive problems in the screening program and
admissions that we are now set back in our efforts to create an
effective screening system.
As another example, the Administration recently
funded the MATRIX program to provide law enforcement access to state
government and commercial databases. This was potentially a useful
crime-fighting tool. But there was insufficient information about the
program and about potentially intrusive data mining capabilities, and
there were unaddressed concerns about privacy protections. Now 11 out
of 16 states participating in the program have pulled out – many,
citing privacy concerns – thus hampering the effectiveness of the
information sharing program. Again, had some of these issues been
vetted in advance, we may have been able to enhance law enforcement
intelligence.
Just recently, there were reports about the FBI’s
new Strategic Medical Intelligence program, in which doctors have been
enlisted to report to the FBI “any suspicious event,” such as an
unusual rash or a lost finger. The goal of preventing bio-terrorism
is important. But there are many unanswered questions about the
program’s privacy protections and its ability to identify truly
suspicious events and not unrelated personal medical situations.
Hopefully, this program will not be hampered by lack of communication
and oversight.
I have written oversight letters to the Justice
Department and to the Department of Homeland Security on all of these
issues and am waiting for their responses.
I want to make sure that mistakes like those are
not repeated, especially with RFID technology, where there is so much
potential value. That is why I asked to speak with you today, to
begin the process of encouraging public dialogue in both the
commercial and public sectors before the RFID genie is let fully out
of its bottle.
This is a dialogue that should cut across the
political spectrum, and it should include the possibility of
constructive, bipartisan congressional hearings. The earlier we begin
this discussion, the greater the prospects for success in reaching
consensus on a set of guiding principles.
When several of us from both parties banded
together years ago to found the Congressional Internet Caucus, we were
united by our appreciation for what the Internet would do for our
society. Years later, we remain united, we remain optimistic, and
partisanship has never interfered in the Caucus’s work.
That is the spirit in which I hope a discussion
can now begin on micro-monitoring.
Thank you for your interest in these cutting-edge
issues, and thanks for this opportunity to share some ideas with you.
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