An interview with Robert O'Harrow
By John W. Whitehead
03/31/05
Increasingly, we live in a surveillance state where everything we do and our every transaction, business or otherwise, is watched, videotaped and analyzed. There is virtually nothing that the surveillance state, growing data systems and information companies do not know about the most intricate details of our lives.
With the slightest mistake, however, you can be branded for life. Take, for example, Matthew Frost of Tampa, Fla., a businessman and father of two who simply wanted to vote in the 2000 presidential election. When he attempted to cast a ballot, the election worker told him: “Sorry, sir, you have a felony. You can’t vote.” Although it was a mistake and Frost had never been convicted of a felony, he still was not allowed to vote. Frost was a victim of a botched attempt by government officials to use a private data contractor “to help purge the electoral votes of felons and other ineligible people,” writes Robert O’Harrow in his revealing book No Place to Hide: Behind the Scenes of Our Emerging Surveillance Society (2005). This was “a glaring demonstration of what can happen when the government and private data services team up to target individuals,” notes O’Harrow. “The use of computerized personal information can—and often does—spin out of control.”
The company behind Frost’s exclusion was ChoicePoint, a Georgia-based organization that acts as a database of personal information. Their website boasts of being “the nation’s leading provider of identification and credential verification services.” Commonly referred to as a commercial data-broker, ChoicePoint provides companies with information on potential employees, insurance companies with information regarding the risk of new clients, and law enforcement agencies and homeland security with information on suspects of crimes. For the federal government, which is barred by the 1974 Privacy Act from forming a database, commercial database brokers like ChoicePoint have become the government’s own private intelligence agency.
oldSpeak had a chance to sit down with Robert O’Harrrow, Jr., whose thought-provoking book casts a watchful eye over the emergence of a security-industrial complex, the result of the post-9/11 marriage of private data and technology companies and government anti-terror initiatives. A reporter on the financial desk of the Washington Post and a finalist for the Pulitzer Prize for a series of Post articles on privacy and technology, O’Harrow created a beat covering information technology, marketing and privacy, delivering stories that mix investigative, explanatory and accountability reporting. More information about No Place to Hide is available at www.noplacetohide.net.
John Whitehead: In your book, No Place to Hide, you indicate that wherever American citizens go, whatever we do, we’re being watched–whether it’s on our cell phone, using our ATM cards, shopping at the grocery store, wherever we are. Although this surveillance is generally being conducted by private citizens and private entities, is this something we should really be concerned about? In other words, what do we have to hide? What’s wrong with private surveillance of our lives?
Robert O’Harrrow: I have stepped away from this notion of privacy, which is a very squishy term. It is what I call a tofu word. You can put whatever flavor you want on “privacy.” We need to think more in a universal sense, in that we all have the right to a certain level of autonomy. By autonomy, I mean the right to be let alone unless there is a social obligation or a higher obligation. This relates, for example, to pulling our car out of the way of an ambulance in order to follow the law, to not hitting people, to not stealing things, and so on. We have the very old value of autonomy in this country.
JW: Much of that is being eroded today.
RO: Yes, that is what is being eroded. In a sense, it’s what we all heard about when we were children from our moms and dads. They would see somebody stepping across the line, and they would say, “Who gave them the right?”–the how-dare-you-kind-of-thing concept. Many of these companies are doing things and collecting information about us in order to provide us with services that we want. However, they are then using the information, reselling it, analyzing it and, in some cases, manipulating it in ways that they have not told us about.
JW: Are you saying that these corporations are being deceptive?
RO: There is a deception through omission, where the corporations have told us partial stories about what they are really doing.
JW: In a way, they are intentionally being deceptive.
RO: Yes, in some cases, I think you can say that they are being deceptive. Is it deception when you go to a GAP, Bloomingdales or Target store and get instant credit? They say this is all about convenience and so on, and it is. We like the convenience. But how many of those companies have told us that there is a huge risk of identity theft, which is a growing problem? Part of the risk is that they are not doing a very thorough authentication of us. That is part of the price you are paying for this transaction. I wouldn’t call it deception, so much as that they are not bothering to tell us the full story.
JW: But why would they not tell us the full story?
RO: Because then you might not participate in that instant too-good-to-be-true transaction.
JW: But aren’t they intentionally being deceptive to a certain degree? You use the word “omission.” But they just don’t want to get caught.
RO: This is one of those situations where if we went through a list of particulars, I might be able to say yes and no to deception. There is a gray area. Thus, I don’t want to go down that route. But, in general, we can say that we are not being told the full story. The full story includes a lot of meddling in our lives that intrudes on our traditional sense of autonomy. I believe we are at the very beginning of something. There has been a data revolution. However, we are at a form of intrusion where certain corporations decide they are going to have a one-to-one relationship with us to sell us something and to do that they have to collect lots and lots of information. Then they have to make decisions about what we are likely to do or how we are spending our money. I don’t remember my having that kind of relationship. I only have so much time for so many relationships. The fact is that, in some cases, I like being well known by the people I do business with. And, in other cases, I never really gave them permission to do what they are doing with my information.
JW: What you are saying is that we need to make the choice, not the corporations.
RO: There needs to be a full, rich understanding and discussion about all this.
JW: A complete and full disclosure of what they are doing.
RO: I think so, but it is difficult and it’s complex. The reality is that we can never get away from the fact that we love the conveniences, the discounts and all the services that we receive when we make these tradeoffs when, for example, we use our cell phones, our ATMs and when we travel along the toll roads of the electronic superhighway. When we make phone calls or buy sweaters over the telephone–despite the fact that we like these things–we just don’t understand what lies behind the screen, what the activity is and why it matters. It matters because we are shipping a lot of new power into the hands of these private companies and, by extension, the government. Under the new post-9/11 framework, as well as under existing laws, the government can now gather this information more easily than ever before and use it in ways that we don’t fully understand. To me, whenever you have a creation of a new sort of power and, therefore, the ability to influence or impact an individual’s life, there needs to be oversight. There needs to be understanding, as well as transparency. There also have to be checks and balances. This is Federalist Papers ideology. This is not anything new, and it isn’t really about computers and technology. This is about very old-fashioned, historical elements at play.
JW: Most people don’t understand what is happening because the education system does not effectively teach such documents as the Federalist Papers and the concepts they propound. Most people have no clue. Most people are in a hurry. This is really convenient for them, and they are not thinking about concepts such as autonomy. They only realize it when it hits them and they come face-to-face with reality. This is reflected in the example you cite in your book of Matthew Frost, who went to vote and was told that he had a criminal record. As a result, he was not allowed to vote. The information collected on him was a mistake, and he had no idea that it was happening. Is this the kind of aberration that happens to people like Matthew Frost? Or is it an emerging pattern?
RO: It is clearly a pattern.
JW: And the pattern is one where incorrect information is used to penalize innocent people–maybe companies like ChoicePoint?
RO: ChoicePoint is the company involved in the Matthew Frost fiasco. ChoicePoint’s whole business model is based on the idea that it wants to become in effect the national nanny that enforces the rights and privileges an individual is seeking. ChoicePoint has put itself in a position of having so much information about millions of people that when, for example, John Whitehead says, “I want this job” or “I want to be a volunteer here” or “I want to be able to get into this building,” such claims are being vetted against ChoicePoint’s data by the people who are the gate keepers–that is, the business person or the owner of the building that you want to get into is using ChoicePoint’s information. It might be electoral officials, and they say, “No, Whitehead has a criminal background” or “Whitehead has philosophical and religious beliefs that we find troubling and we would rather not have him here,” etc. It is discrimination with a lower case “d.”
JW: It’s a branding.
RO: This is what the marketers do. The marketers want to decide who is the most profitable–the 20% of the population that is. The rest of us–the 80%–are considered cheapskates. The marketers are naturally going to use their information to concentrate on the most prosperous people. That is supposedly what good service is all about. But when you do it on a scale that involves tens of thousands of millions of people and you are using computers to make these choices based on data that may in fact, as you point out, be wrong, then it is very troubling. Let’s assume that the computers make a mistake only one in 20 times, or even one in 100. Given all the transactions we’re involved in, that will add up really fast and might deprive someone of the right to vote. It might label someone a criminal because they were denied the right to volunteer for their child’s soccer program. There will be a lot of collateral damage, even while the other 99 cases are more efficient, because of some company like ChoicePoint.
JW: Recently, ChoicePoint discovered that it had allowed criminals to access its database. Thieves gained access by using stolen identities to create seemingly legitimate businesses. They then formed 50 ChoicePoint accounts and were able to gain access to individuals’ names, addresses, Social Security numbers and credit reports. ChoicePoint stated that 144,778 people may have been affected by the security breach. Even if databases such as ChoicePoint are somehow regulated by law, is there really any way to prevent this type of thing from happening?
RO: First of all, you can never stop all crime. To attempt to do so would be a foolish endeavor because you couldn’t do it. And even if you could, you would have the nation encased in a Lucite block. You would be so secure that nothing would happen, and that is untenable. But there is an idea I have been working on lately. It is the notion of studying the steel mills and the energy and coal power producing plants in Ohio and Northern Indiana back in the 1960s. There was a time in the late ‘50s and ‘60s in Gary, Indiana when you would look outside and see very little sun because the smog was so thick.
JW: I’m familiar with this scenario.
RO: People were getting sick with emphysema and other illnesses. This was taken for granted because there was no way people living at the time thought they were ever going to get rid of pollution. And there was a trade off in that the steel mills led to a better quality of life. So you needed the production and this and that. Eventually, as a society, we realized at some level that we could not go for the rest of our lives breathing foul air. And when we demanded that the companies clean things up, despite their claims that they would have to be shut down, they cleaned things up. As a result, the air is much cleaner than it used to be and the water is much cleaner than it used to be because we realized that there are some things we have to value.
JW: The environment.
RO: That’s right. But it is something that we as a society realized. We recognized that it can be fixed, and, in fact, it is much better than it was. It is an amazing historic phenomenon.
JW: But here we are dealing with complex computer systems. It is not as simple as putting devices on the motor of an automobile to help clean the air.
RO: The analogy is there, however. Think about it for a moment. That was an economic decision. We figured out that pollution was a cost of doing business that the energy producers and the manufactures weren’t really absorbing. They were not paying the costs of the damage that pollution was causing. When we made them pay some of the costs, they found ways to alleviate pollution. It’s an economic analysis. It’s the same way with all these companies that are using these billions of records. If it were seen that all the information was part of an economic system–and the identity theft and the kinds of breaches that you just cited were a cost of doing business that had to be dealt with–I believe those companies would become much better at securing the information and ensuring that the people who are obtaining it are who they claim to be. In other words, we need to apply a kind of environmental analysis here to the present and view this identity theft as if it were pollution. Then we are going to find a way for the companies to still make money in providing the services they do but maybe be more careful about their security.
JW: The pollution analogy may work on the criminal side of the problem. However, I am not sure it works on the side of pure data collection, especially when the government has access to these so-called private databases. The federal government has increasingly turned to commercial databases for information. Under the Privacy Act, which was passed by Congress in 1974, isn’t it illegal for the government to form a database? If so, how can they do an end run and collect information on us through corporations like ChoicePoint? Shouldn’t this be illegal as well? As you may remember, the federal government has surreptitiously mined information from private computer systems. After 9/11, former U.S. Attorney General John Ashcroft was checking on what videos people were renting and which books they were checking out of the library.
RO: In effect, the government has outsourced security and intelligence. And in my book No Place to Hide, I realized through my research that ChoicePoint, and Lexis-Nexis, for that matter, were in effect operating at an early stage as a private intelligence service for the federal government.
JW: In violation of the law.
RO: As far as I know, it’s not in violation of the law because of the way those laws were written.
JW: A violation in the spirit of the law? In other words, the Privacy Act.
RO: They seem to be sidestepping the spirit of the law. This goes to the heart of the most salient notion of my book, which is this new source of power. There are billions and billions of records and they are being accessed by the government, which is supposed to be restricted in how it can conduct domestic surveillance because of abuses in the past. The federal government is using private companies, which are not only maintaining these records but refreshing them every day. It’s a problem because it is a new source of government power. In my way of thinking, based on my understanding of the foundation of our American governmental scheme, this undermines the checks and balances and oversight on such sources of power.
JW: How do we deal with it?
RO: That is what we are hoping Congress will do.
JW: Thus, Congress needs to regulate it by law.
RO: Congress needs to, and we as a people need to understand what is happening in our society and in the information industry. We need to understand it in all its complexity. It is not as simple as a quick fix solution for identity theft because that is not getting at the issue, although it may be warranted as well.
JW: We want to keep the government out of our private lives.
RO: The government is in our private lives and always will be for the rest of our lives.
JW: But we don’t want more of the government in our lives.
RO: We may have to accept more of the government in our lives. But here is what I am arguing. Let’s not let it happen outside that bright light that Supreme Court Justice Louis Brandeis talked about when he said, “Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” We need to have openness. We need to have a way to hold these companies and the government’s relationship with these companies accountable. I don’t have the solution for how that comes about. I do know that it is unacceptable when you have something as powerful as these giant data bases, but the tools and the analytical powers are somehow outside the voting power of the regular man on the street in Charlottesville, Topeka, Kansas, Washington D.C., or wherever. That is not in accordance with our government system.
JW: Although Brandeis talks about well-meaning men of zeal, the problem is that the government is not always run by men of well-meaning with zeal. It is run by people who are often misguided and sometimes evil. They may not like you. We see it on a daily basis at The Rutherford Institute with cases that we handle against government agents and agencies. How do we guard against the John Ashcrofts of the world who are well-meaning? Ashcroft wanted to stop terrorists. But what if he just had a mean streak and decided that he didn’t like Bob O’Harrow’s book and instigated an investigation of you? How do we stop that?
RO: I came across a lot of very interesting characters while working on my book, including a former drug smuggler who, believe it or not, I believe is well meaning now. I spent a fair amount of time with John Poindexter and his wife. I met with John Ashcroft. Almost everybody that I came across actually had good intentions. This is not about a J. Edgar Hoover nefarious secret cabal.
JW: It’s not the Ashcrofts you have to be concerned about. That is what I am saying. I am concerned about a J. Edgar Hoover gone amuck.
RO: We always need to be on guard against the bad apples and evil-minded rulers.
JW: What about the men of zeal that Brandeis mentions?
RO: I think we have to watch the men of zeal who are trying to do the right thing but, because of their inclination or urgency, don’t fully contemplate the consequences of their actions. That is why in our American system we have oversight and checks and balances. This is because we are not normally on guard against these well-informed people who may start spying and tapping your phones and so on.
JW: I agree that we should be on guard against these well-intentioned men and women. But I hear from a lot of people who argue that the Ashcrofts, Poindexters and others in the Bush Administration are really good people and they would never do anything wrong. Although such people may have noble intentions, the problem is that they sometimes go too far.
RO: Many times, they don’t realize that they are going too far. A lot of people who end up doing bad things, as the cliché goes, are very well intended. But they haven’t fully contemplated the ramifications of their actions. And if they are not open to scrutiny, criticism and oversight, then how are they going to be corrected before they really screw up? Clearly, there are going to be bad cops out there. There are going to be really bad prosecutors. There are going to be people who are just downright nasty and mean and will do awful things. But I believe those folks are in the minority. What we have to worry about is a much broader issue–that is, the huge financial incentive for these companies to feed the government’s need for information that the government itself cannot fulfill and which it does in secrecy. The government is cloaking its intelligence gathering in a blanket of security. And suddenly, without us noticing it ten years later, we have gone too far down the wrong road.
JW: Maybe all our transactions should come with a warning such as the one on a cigarette package–that is, the surgeon general warning us that it could kill us. When we buy something at a store, there should be full disclosure–at least something telling us that this information is going to be used and how it will be used.
RO: We have seen that as a trend, but to me it is a fig leaf.
JW: What is the answer then? How do we escape the surveillance state?
RO: The same way that the nation came to grips with the complex issues of pollution, which we are still dealing with 40 years later. We have to address the complexities of the situation of the data revolution, the information and the new power that it is creating. It is difficult. Unfortunately, there are no easy answers because we are not willing to give up the conveniences, the services and the miracle of the Internet. Nor should we. But we will have to do the difficult work or we are going to suffer the consequences–a surveillance society that is chilling political discussion. It is eventually going to brand people on the left and the right as extremists. We will lose many things that made our society great. I find that lamentable–again, even if done by those with good intentions.
JW: Does it really matter what a person’s intentions are when the end result is the destruction of privacy and freedom? In other words, what is the difference between someone who says “I am going to persecute you” for good reasons as opposed to the one who says “I am going to oppress you” for bad reasons? This could end up destroying your life. Take your book, for example, which in a certain setting might be seen as dangerous.
RO: How could it be dangerous?
JW: It contains information that certain people in the government might not like. You are revealing things in your book that some powerful people obviously would not want the average citizen to know. After all, your book is entitled No Place to Hide.
RO: If my book actually took hold the way it should and lawmakers, whether on the left or the right took it seriously, it would have economic consequences for the information industry. It would shake up some lives, and life would be much harder for the information industry. It would force them to be more open. They would have to ensure the quality of information. They would have to make sure that the information was secure and couldn’t be obtained by identity thieves. And there are other consequences. The government might lose certain access and have to work harder. I would probably be accused of undermining Homeland Security because of that. But, like I said, life is hard, and I hope that we are willing to take on the difficult task over the coming years. The information technology is so amazing. At the same time, we must recognize the autonomy and the importance of the individual in our society.
JW: Do you see any kind of serious movement in Congress to do some of the things you are proposing?
RO: Yes. The recent identity theft breaches have stirred Congress in a way that we haven’t seen before.
JW: Congress stirs a lot, but then little happens.
RO: We are going to see some hearings in the Senate. They should be fairly heavy and very soon. Will there be follow-through? I would not bet on it.
JW: You write in your book, “Surveillance comes with a price. It dulls the edge of public debate, imposes a sense of conformity, introduces the uneasy feeling of being watched. It chills culture and stifles dissent.” Due to the increasing power of technology and its complexity, is there really any hope that freedom can survive? Can freedom survive if we don’t grasp your pollution analogy and actually take responsibility?
RO: Of course, there is hope. I believe people need to realize that, as amazing as it may seem and as unsettling as all this is, we are at the very beginning. In some ways, you can trace these issues back to the computer, to the 1960s, and so on. This has been percolating for a while. The latest data revolution was in the 1990s. The reason we need to take action is because we are at the very beginning. All these data systems are quickly converging so that data is starting to flow together more and more. This is because of the great entrepreneurial spirit of the information industry. It is going to be easier and easier to track an individual from A to Z. But we are at the very beginning of this process and, of course, there is hope.
JW: Among the industrial nations of the world, the United States ranks seventeenth in literacy. Seventeenth in the world! I have faith in the human spirit, but I am not sure that I have total faith in the American education system. I’m not sure that it can produce the kind of people who can grasp what you are saying. Thus, is there any hope in the near future that we can turn this issue around? The young people coming out of school today are not readers, and they tend to be apathetic.
RO: I believe there is hope. I would not have done the book if I didn’t believe there was hope.
JW: What you argue is that in reality we have entered a new paradigm. You quote Peter Swire, who served as the nation’s first privacy counselor in the Clinton Administration. Swire warned that we’re heading toward the creation of a “security-industrial complex.” As you note, Swire altered the famous warning of Dwight D. Eisenhower in his classic 1961 Farewell Address of the military-industrial complex. Is the new security-industrial complex a more serious problem than that warned of by Eisenhower?
RO: President Eisenhower was an icon of his age. He was a hero of World War II. He was a brave man and a great leader who obviously took his lumps, even politically. However, Eisenhower had the great ability to issue a warning that, if we weren’t careful, there was going to be a new source of power. This new power would hide behind the screen of secrecy between the government and the military. This is the industrial might that produced the powerful military as we now know it–a machinery that, in some cases, wasn’t needed. But it was produced because it served political and profit ends.
JW: That has come to full fruition now.
RO: After 9/11, when all these contracts were being fed to information technology companies, their role as advisors to the government on what should be done increased. We cannot forget that it was all happening behind a screen of secrecy because of national security concerns. But we also cannot forget that they are spending our money. These are our tax dollars, and we must find a way to ensure accountability and oversight. If not, in the same way that Eisenhower warned of the need to guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex, we must also guard against the acquisition of unwarranted influence by the information broker–who is supplying the government with more and more information.
JW: At the same time, they are unaccountable.
RO: They are outside the normal lines of accountability.
JW: And that’s dangerous.
RO: Yes. There will be a natural tendency of people with information, data systems and data analytical tools that can do all these seemingly marvelous things to also watch everybody for signs of terrorist intent. Not only that, they may look for those with unacceptable political viewpoints and watch them during the election. Maybe you owe money or have done something wrong. How can they not act on those transgressions if they have this surveillance infrastructure? Of course, it’s the classic slippery slope. We want to stop everybody from dead-beat dads to violators of traffic laws to murderers. But if there is this massive surveillance system, where does one draw the line? How much power should they possess, even if done for good things? But even if these are good intensions, there is a chance that ultimately it is going to warp society.
JW: What can we as average citizens do to stem the tide of the new security industrial complex?
RO: People can read about it and study it. They can tell their congressional representatives their opinions about it. They can try to remain non-hysterical and recognize that some of it is fundamentally important for national security. It would be foolish not to use new tools to authenticate the identity of people, for example, to ensure that terrorists aren’t getting on our airplanes. But we must also demand that the government officials who are spending this money and using these tools are held accountable to the people. Right now, those things are not happening
By John W. Whitehead
03/31/05
Increasingly, we live in a surveillance state where everything we do and our every transaction, business or otherwise, is watched, videotaped and analyzed. There is virtually nothing that the surveillance state, growing data systems and information companies do not know about the most intricate details of our lives.
With the slightest mistake, however, you can be branded for life. Take, for example, Matthew Frost of Tampa, Fla., a businessman and father of two who simply wanted to vote in the 2000 presidential election. When he attempted to cast a ballot, the election worker told him: “Sorry, sir, you have a felony. You can’t vote.” Although it was a mistake and Frost had never been convicted of a felony, he still was not allowed to vote. Frost was a victim of a botched attempt by government officials to use a private data contractor “to help purge the electoral votes of felons and other ineligible people,” writes Robert O’Harrow in his revealing book No Place to Hide: Behind the Scenes of Our Emerging Surveillance Society (2005). This was “a glaring demonstration of what can happen when the government and private data services team up to target individuals,” notes O’Harrow. “The use of computerized personal information can—and often does—spin out of control.”
The company behind Frost’s exclusion was ChoicePoint, a Georgia-based organization that acts as a database of personal information. Their website boasts of being “the nation’s leading provider of identification and credential verification services.” Commonly referred to as a commercial data-broker, ChoicePoint provides companies with information on potential employees, insurance companies with information regarding the risk of new clients, and law enforcement agencies and homeland security with information on suspects of crimes. For the federal government, which is barred by the 1974 Privacy Act from forming a database, commercial database brokers like ChoicePoint have become the government’s own private intelligence agency.
oldSpeak had a chance to sit down with Robert O’Harrrow, Jr., whose thought-provoking book casts a watchful eye over the emergence of a security-industrial complex, the result of the post-9/11 marriage of private data and technology companies and government anti-terror initiatives. A reporter on the financial desk of the Washington Post and a finalist for the Pulitzer Prize for a series of Post articles on privacy and technology, O’Harrow created a beat covering information technology, marketing and privacy, delivering stories that mix investigative, explanatory and accountability reporting. More information about No Place to Hide is available at www.noplacetohide.net.
John Whitehead: In your book, No Place to Hide, you indicate that wherever American citizens go, whatever we do, we’re being watched–whether it’s on our cell phone, using our ATM cards, shopping at the grocery store, wherever we are. Although this surveillance is generally being conducted by private citizens and private entities, is this something we should really be concerned about? In other words, what do we have to hide? What’s wrong with private surveillance of our lives?
Robert O’Harrrow: I have stepped away from this notion of privacy, which is a very squishy term. It is what I call a tofu word. You can put whatever flavor you want on “privacy.” We need to think more in a universal sense, in that we all have the right to a certain level of autonomy. By autonomy, I mean the right to be let alone unless there is a social obligation or a higher obligation. This relates, for example, to pulling our car out of the way of an ambulance in order to follow the law, to not hitting people, to not stealing things, and so on. We have the very old value of autonomy in this country.
JW: Much of that is being eroded today.
RO: Yes, that is what is being eroded. In a sense, it’s what we all heard about when we were children from our moms and dads. They would see somebody stepping across the line, and they would say, “Who gave them the right?”–the how-dare-you-kind-of-thing concept. Many of these companies are doing things and collecting information about us in order to provide us with services that we want. However, they are then using the information, reselling it, analyzing it and, in some cases, manipulating it in ways that they have not told us about.
JW: Are you saying that these corporations are being deceptive?
RO: There is a deception through omission, where the corporations have told us partial stories about what they are really doing.
JW: In a way, they are intentionally being deceptive.
RO: Yes, in some cases, I think you can say that they are being deceptive. Is it deception when you go to a GAP, Bloomingdales or Target store and get instant credit? They say this is all about convenience and so on, and it is. We like the convenience. But how many of those companies have told us that there is a huge risk of identity theft, which is a growing problem? Part of the risk is that they are not doing a very thorough authentication of us. That is part of the price you are paying for this transaction. I wouldn’t call it deception, so much as that they are not bothering to tell us the full story.
JW: But why would they not tell us the full story?
RO: Because then you might not participate in that instant too-good-to-be-true transaction.
JW: But aren’t they intentionally being deceptive to a certain degree? You use the word “omission.” But they just don’t want to get caught.
RO: This is one of those situations where if we went through a list of particulars, I might be able to say yes and no to deception. There is a gray area. Thus, I don’t want to go down that route. But, in general, we can say that we are not being told the full story. The full story includes a lot of meddling in our lives that intrudes on our traditional sense of autonomy. I believe we are at the very beginning of something. There has been a data revolution. However, we are at a form of intrusion where certain corporations decide they are going to have a one-to-one relationship with us to sell us something and to do that they have to collect lots and lots of information. Then they have to make decisions about what we are likely to do or how we are spending our money. I don’t remember my having that kind of relationship. I only have so much time for so many relationships. The fact is that, in some cases, I like being well known by the people I do business with. And, in other cases, I never really gave them permission to do what they are doing with my information.
JW: What you are saying is that we need to make the choice, not the corporations.
RO: There needs to be a full, rich understanding and discussion about all this.
JW: A complete and full disclosure of what they are doing.
RO: I think so, but it is difficult and it’s complex. The reality is that we can never get away from the fact that we love the conveniences, the discounts and all the services that we receive when we make these tradeoffs when, for example, we use our cell phones, our ATMs and when we travel along the toll roads of the electronic superhighway. When we make phone calls or buy sweaters over the telephone–despite the fact that we like these things–we just don’t understand what lies behind the screen, what the activity is and why it matters. It matters because we are shipping a lot of new power into the hands of these private companies and, by extension, the government. Under the new post-9/11 framework, as well as under existing laws, the government can now gather this information more easily than ever before and use it in ways that we don’t fully understand. To me, whenever you have a creation of a new sort of power and, therefore, the ability to influence or impact an individual’s life, there needs to be oversight. There needs to be understanding, as well as transparency. There also have to be checks and balances. This is Federalist Papers ideology. This is not anything new, and it isn’t really about computers and technology. This is about very old-fashioned, historical elements at play.
JW: Most people don’t understand what is happening because the education system does not effectively teach such documents as the Federalist Papers and the concepts they propound. Most people have no clue. Most people are in a hurry. This is really convenient for them, and they are not thinking about concepts such as autonomy. They only realize it when it hits them and they come face-to-face with reality. This is reflected in the example you cite in your book of Matthew Frost, who went to vote and was told that he had a criminal record. As a result, he was not allowed to vote. The information collected on him was a mistake, and he had no idea that it was happening. Is this the kind of aberration that happens to people like Matthew Frost? Or is it an emerging pattern?
RO: It is clearly a pattern.
JW: And the pattern is one where incorrect information is used to penalize innocent people–maybe companies like ChoicePoint?
RO: ChoicePoint is the company involved in the Matthew Frost fiasco. ChoicePoint’s whole business model is based on the idea that it wants to become in effect the national nanny that enforces the rights and privileges an individual is seeking. ChoicePoint has put itself in a position of having so much information about millions of people that when, for example, John Whitehead says, “I want this job” or “I want to be a volunteer here” or “I want to be able to get into this building,” such claims are being vetted against ChoicePoint’s data by the people who are the gate keepers–that is, the business person or the owner of the building that you want to get into is using ChoicePoint’s information. It might be electoral officials, and they say, “No, Whitehead has a criminal background” or “Whitehead has philosophical and religious beliefs that we find troubling and we would rather not have him here,” etc. It is discrimination with a lower case “d.”
JW: It’s a branding.
RO: This is what the marketers do. The marketers want to decide who is the most profitable–the 20% of the population that is. The rest of us–the 80%–are considered cheapskates. The marketers are naturally going to use their information to concentrate on the most prosperous people. That is supposedly what good service is all about. But when you do it on a scale that involves tens of thousands of millions of people and you are using computers to make these choices based on data that may in fact, as you point out, be wrong, then it is very troubling. Let’s assume that the computers make a mistake only one in 20 times, or even one in 100. Given all the transactions we’re involved in, that will add up really fast and might deprive someone of the right to vote. It might label someone a criminal because they were denied the right to volunteer for their child’s soccer program. There will be a lot of collateral damage, even while the other 99 cases are more efficient, because of some company like ChoicePoint.
JW: Recently, ChoicePoint discovered that it had allowed criminals to access its database. Thieves gained access by using stolen identities to create seemingly legitimate businesses. They then formed 50 ChoicePoint accounts and were able to gain access to individuals’ names, addresses, Social Security numbers and credit reports. ChoicePoint stated that 144,778 people may have been affected by the security breach. Even if databases such as ChoicePoint are somehow regulated by law, is there really any way to prevent this type of thing from happening?
RO: First of all, you can never stop all crime. To attempt to do so would be a foolish endeavor because you couldn’t do it. And even if you could, you would have the nation encased in a Lucite block. You would be so secure that nothing would happen, and that is untenable. But there is an idea I have been working on lately. It is the notion of studying the steel mills and the energy and coal power producing plants in Ohio and Northern Indiana back in the 1960s. There was a time in the late ‘50s and ‘60s in Gary, Indiana when you would look outside and see very little sun because the smog was so thick.
JW: I’m familiar with this scenario.
RO: People were getting sick with emphysema and other illnesses. This was taken for granted because there was no way people living at the time thought they were ever going to get rid of pollution. And there was a trade off in that the steel mills led to a better quality of life. So you needed the production and this and that. Eventually, as a society, we realized at some level that we could not go for the rest of our lives breathing foul air. And when we demanded that the companies clean things up, despite their claims that they would have to be shut down, they cleaned things up. As a result, the air is much cleaner than it used to be and the water is much cleaner than it used to be because we realized that there are some things we have to value.
JW: The environment.
RO: That’s right. But it is something that we as a society realized. We recognized that it can be fixed, and, in fact, it is much better than it was. It is an amazing historic phenomenon.
JW: But here we are dealing with complex computer systems. It is not as simple as putting devices on the motor of an automobile to help clean the air.
RO: The analogy is there, however. Think about it for a moment. That was an economic decision. We figured out that pollution was a cost of doing business that the energy producers and the manufactures weren’t really absorbing. They were not paying the costs of the damage that pollution was causing. When we made them pay some of the costs, they found ways to alleviate pollution. It’s an economic analysis. It’s the same way with all these companies that are using these billions of records. If it were seen that all the information was part of an economic system–and the identity theft and the kinds of breaches that you just cited were a cost of doing business that had to be dealt with–I believe those companies would become much better at securing the information and ensuring that the people who are obtaining it are who they claim to be. In other words, we need to apply a kind of environmental analysis here to the present and view this identity theft as if it were pollution. Then we are going to find a way for the companies to still make money in providing the services they do but maybe be more careful about their security.
JW: The pollution analogy may work on the criminal side of the problem. However, I am not sure it works on the side of pure data collection, especially when the government has access to these so-called private databases. The federal government has increasingly turned to commercial databases for information. Under the Privacy Act, which was passed by Congress in 1974, isn’t it illegal for the government to form a database? If so, how can they do an end run and collect information on us through corporations like ChoicePoint? Shouldn’t this be illegal as well? As you may remember, the federal government has surreptitiously mined information from private computer systems. After 9/11, former U.S. Attorney General John Ashcroft was checking on what videos people were renting and which books they were checking out of the library.
RO: In effect, the government has outsourced security and intelligence. And in my book No Place to Hide, I realized through my research that ChoicePoint, and Lexis-Nexis, for that matter, were in effect operating at an early stage as a private intelligence service for the federal government.
JW: In violation of the law.
RO: As far as I know, it’s not in violation of the law because of the way those laws were written.
JW: A violation in the spirit of the law? In other words, the Privacy Act.
RO: They seem to be sidestepping the spirit of the law. This goes to the heart of the most salient notion of my book, which is this new source of power. There are billions and billions of records and they are being accessed by the government, which is supposed to be restricted in how it can conduct domestic surveillance because of abuses in the past. The federal government is using private companies, which are not only maintaining these records but refreshing them every day. It’s a problem because it is a new source of government power. In my way of thinking, based on my understanding of the foundation of our American governmental scheme, this undermines the checks and balances and oversight on such sources of power.
JW: How do we deal with it?
RO: That is what we are hoping Congress will do.
JW: Thus, Congress needs to regulate it by law.
RO: Congress needs to, and we as a people need to understand what is happening in our society and in the information industry. We need to understand it in all its complexity. It is not as simple as a quick fix solution for identity theft because that is not getting at the issue, although it may be warranted as well.
JW: We want to keep the government out of our private lives.
RO: The government is in our private lives and always will be for the rest of our lives.
JW: But we don’t want more of the government in our lives.
RO: We may have to accept more of the government in our lives. But here is what I am arguing. Let’s not let it happen outside that bright light that Supreme Court Justice Louis Brandeis talked about when he said, “Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” We need to have openness. We need to have a way to hold these companies and the government’s relationship with these companies accountable. I don’t have the solution for how that comes about. I do know that it is unacceptable when you have something as powerful as these giant data bases, but the tools and the analytical powers are somehow outside the voting power of the regular man on the street in Charlottesville, Topeka, Kansas, Washington D.C., or wherever. That is not in accordance with our government system.
JW: Although Brandeis talks about well-meaning men of zeal, the problem is that the government is not always run by men of well-meaning with zeal. It is run by people who are often misguided and sometimes evil. They may not like you. We see it on a daily basis at The Rutherford Institute with cases that we handle against government agents and agencies. How do we guard against the John Ashcrofts of the world who are well-meaning? Ashcroft wanted to stop terrorists. But what if he just had a mean streak and decided that he didn’t like Bob O’Harrow’s book and instigated an investigation of you? How do we stop that?
RO: I came across a lot of very interesting characters while working on my book, including a former drug smuggler who, believe it or not, I believe is well meaning now. I spent a fair amount of time with John Poindexter and his wife. I met with John Ashcroft. Almost everybody that I came across actually had good intentions. This is not about a J. Edgar Hoover nefarious secret cabal.
JW: It’s not the Ashcrofts you have to be concerned about. That is what I am saying. I am concerned about a J. Edgar Hoover gone amuck.
RO: We always need to be on guard against the bad apples and evil-minded rulers.
JW: What about the men of zeal that Brandeis mentions?
RO: I think we have to watch the men of zeal who are trying to do the right thing but, because of their inclination or urgency, don’t fully contemplate the consequences of their actions. That is why in our American system we have oversight and checks and balances. This is because we are not normally on guard against these well-informed people who may start spying and tapping your phones and so on.
JW: I agree that we should be on guard against these well-intentioned men and women. But I hear from a lot of people who argue that the Ashcrofts, Poindexters and others in the Bush Administration are really good people and they would never do anything wrong. Although such people may have noble intentions, the problem is that they sometimes go too far.
RO: Many times, they don’t realize that they are going too far. A lot of people who end up doing bad things, as the cliché goes, are very well intended. But they haven’t fully contemplated the ramifications of their actions. And if they are not open to scrutiny, criticism and oversight, then how are they going to be corrected before they really screw up? Clearly, there are going to be bad cops out there. There are going to be really bad prosecutors. There are going to be people who are just downright nasty and mean and will do awful things. But I believe those folks are in the minority. What we have to worry about is a much broader issue–that is, the huge financial incentive for these companies to feed the government’s need for information that the government itself cannot fulfill and which it does in secrecy. The government is cloaking its intelligence gathering in a blanket of security. And suddenly, without us noticing it ten years later, we have gone too far down the wrong road.
JW: Maybe all our transactions should come with a warning such as the one on a cigarette package–that is, the surgeon general warning us that it could kill us. When we buy something at a store, there should be full disclosure–at least something telling us that this information is going to be used and how it will be used.
RO: We have seen that as a trend, but to me it is a fig leaf.
JW: What is the answer then? How do we escape the surveillance state?
RO: The same way that the nation came to grips with the complex issues of pollution, which we are still dealing with 40 years later. We have to address the complexities of the situation of the data revolution, the information and the new power that it is creating. It is difficult. Unfortunately, there are no easy answers because we are not willing to give up the conveniences, the services and the miracle of the Internet. Nor should we. But we will have to do the difficult work or we are going to suffer the consequences–a surveillance society that is chilling political discussion. It is eventually going to brand people on the left and the right as extremists. We will lose many things that made our society great. I find that lamentable–again, even if done by those with good intentions.
JW: Does it really matter what a person’s intentions are when the end result is the destruction of privacy and freedom? In other words, what is the difference between someone who says “I am going to persecute you” for good reasons as opposed to the one who says “I am going to oppress you” for bad reasons? This could end up destroying your life. Take your book, for example, which in a certain setting might be seen as dangerous.
RO: How could it be dangerous?
JW: It contains information that certain people in the government might not like. You are revealing things in your book that some powerful people obviously would not want the average citizen to know. After all, your book is entitled No Place to Hide.
RO: If my book actually took hold the way it should and lawmakers, whether on the left or the right took it seriously, it would have economic consequences for the information industry. It would shake up some lives, and life would be much harder for the information industry. It would force them to be more open. They would have to ensure the quality of information. They would have to make sure that the information was secure and couldn’t be obtained by identity thieves. And there are other consequences. The government might lose certain access and have to work harder. I would probably be accused of undermining Homeland Security because of that. But, like I said, life is hard, and I hope that we are willing to take on the difficult task over the coming years. The information technology is so amazing. At the same time, we must recognize the autonomy and the importance of the individual in our society.
JW: Do you see any kind of serious movement in Congress to do some of the things you are proposing?
RO: Yes. The recent identity theft breaches have stirred Congress in a way that we haven’t seen before.
JW: Congress stirs a lot, but then little happens.
RO: We are going to see some hearings in the Senate. They should be fairly heavy and very soon. Will there be follow-through? I would not bet on it.
JW: You write in your book, “Surveillance comes with a price. It dulls the edge of public debate, imposes a sense of conformity, introduces the uneasy feeling of being watched. It chills culture and stifles dissent.” Due to the increasing power of technology and its complexity, is there really any hope that freedom can survive? Can freedom survive if we don’t grasp your pollution analogy and actually take responsibility?
RO: Of course, there is hope. I believe people need to realize that, as amazing as it may seem and as unsettling as all this is, we are at the very beginning. In some ways, you can trace these issues back to the computer, to the 1960s, and so on. This has been percolating for a while. The latest data revolution was in the 1990s. The reason we need to take action is because we are at the very beginning. All these data systems are quickly converging so that data is starting to flow together more and more. This is because of the great entrepreneurial spirit of the information industry. It is going to be easier and easier to track an individual from A to Z. But we are at the very beginning of this process and, of course, there is hope.
JW: Among the industrial nations of the world, the United States ranks seventeenth in literacy. Seventeenth in the world! I have faith in the human spirit, but I am not sure that I have total faith in the American education system. I’m not sure that it can produce the kind of people who can grasp what you are saying. Thus, is there any hope in the near future that we can turn this issue around? The young people coming out of school today are not readers, and they tend to be apathetic.
RO: I believe there is hope. I would not have done the book if I didn’t believe there was hope.
JW: What you argue is that in reality we have entered a new paradigm. You quote Peter Swire, who served as the nation’s first privacy counselor in the Clinton Administration. Swire warned that we’re heading toward the creation of a “security-industrial complex.” As you note, Swire altered the famous warning of Dwight D. Eisenhower in his classic 1961 Farewell Address of the military-industrial complex. Is the new security-industrial complex a more serious problem than that warned of by Eisenhower?
RO: President Eisenhower was an icon of his age. He was a hero of World War II. He was a brave man and a great leader who obviously took his lumps, even politically. However, Eisenhower had the great ability to issue a warning that, if we weren’t careful, there was going to be a new source of power. This new power would hide behind the screen of secrecy between the government and the military. This is the industrial might that produced the powerful military as we now know it–a machinery that, in some cases, wasn’t needed. But it was produced because it served political and profit ends.
JW: That has come to full fruition now.
RO: After 9/11, when all these contracts were being fed to information technology companies, their role as advisors to the government on what should be done increased. We cannot forget that it was all happening behind a screen of secrecy because of national security concerns. But we also cannot forget that they are spending our money. These are our tax dollars, and we must find a way to ensure accountability and oversight. If not, in the same way that Eisenhower warned of the need to guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex, we must also guard against the acquisition of unwarranted influence by the information broker–who is supplying the government with more and more information.
JW: At the same time, they are unaccountable.
RO: They are outside the normal lines of accountability.
JW: And that’s dangerous.
RO: Yes. There will be a natural tendency of people with information, data systems and data analytical tools that can do all these seemingly marvelous things to also watch everybody for signs of terrorist intent. Not only that, they may look for those with unacceptable political viewpoints and watch them during the election. Maybe you owe money or have done something wrong. How can they not act on those transgressions if they have this surveillance infrastructure? Of course, it’s the classic slippery slope. We want to stop everybody from dead-beat dads to violators of traffic laws to murderers. But if there is this massive surveillance system, where does one draw the line? How much power should they possess, even if done for good things? But even if these are good intensions, there is a chance that ultimately it is going to warp society.
JW: What can we as average citizens do to stem the tide of the new security industrial complex?
RO: People can read about it and study it. They can tell their congressional representatives their opinions about it. They can try to remain non-hysterical and recognize that some of it is fundamentally important for national security. It would be foolish not to use new tools to authenticate the identity of people, for example, to ensure that terrorists aren’t getting on our airplanes. But we must also demand that the government officials who are spending this money and using these tools are held accountable to the people. Right now, those things are not happening
That or you own a lot of Halliburton and Betchall stock 
