Spies Like Us: We're All Big Brother NowS

Mitt Romney's presidential campaign took a tumble last week with the release of a hidden-camera video recorded at a fundraiser in Florida. In it, Romney dismisses nearly half the country in a set of statements some pundits are calling the worst things a modern presidential candidate has ever said.

The words—boneheaded, indiscreet, and un-presidential—might not have been such a huge a problem if not for a saboteur recording what the candidate said. As our gadgets shrink in size and expand in capability, the opportunity to shoot amateur video is becoming as ubiquitous as the devices themselves. Welcome to the future, where an average $200 smartphone can derail a billion-dollar presidential campaign.

It's still unclear exactly who captured Romney's Florida rant, or what sort of device was used. Considering that Romney was speaking at a $50,000-per-plate dinner in a private home, it's unlikely an ultra-wealthy donor filmed him and then gave the video to liberal magazine Mother Jones. One plausible explanation, as some suggest, is that a member of the waitstaff—perhaps a bartender—pulled out an iPhone and recorded Romney's remarks. If that's the case, it's surprising the Romney campaign didn't follow his opponent's tactic: President Obama makes everyone at his most exclusive fundraisers relinquish their phones. In May, an anonymous Obama aide told the Washington Post's David Nakamura that the practice was "standard operating procedure." If guests want a photo, they wait for one in the "photo line."

Policies similar to the president's are already laws on the books in many places. In Florida, for instance, where the fundraiser took place, it's illegal to "intercept or record a 'wire, oral, or electronic communication' ... unless all parties to the communication consent," according to the Citizen Media Law Project. Other "all-party notification" states include California, Connecticut, Massachusetts, and Nevada. Whether the person who filmed Romney is going to be prosecuted remains to be seen (here's a little more information on that topic). But in the end, it doesn't really matter for Romney, or anyone else burned by a private video or photo leak. Once that footage hits the internet, the damage is done.

"It's going to become very hard to prevent this from happening," says Timothy Lee, a freelance writer for the technology website Ars Technica and an adjunct scholar at the Cato Institute. "They might catch this guy who filmed Romney and arrest him, and that may be a deterrent for a bit, but public figures are going to start getting recorded quite often."

This type of thing has evolved with the technology. In 2006, then-Senator George Allen lost his bid for reelection after calling an Indian-American man who was videotaping his stump speech a "macaca," a slur derived from a word for monkeys. His downfall was different—he knew he was being videotaped. Even then, using an amateur's camera to surreptitiously catch a VIP in a compromising position would be conspicuous, if not impossible. But now, a partygoer can snap photos of a naked Prince Harry in a Las Vegas hotel room. Or in January, Illinois woman Tiawanda Moore could use a Blackberry to record the police discouraging her from filing a sexual harassment complaint against one of their colleagues. Today, with the one-third of Americans owning smartphones, the ability to capture HD video is in millions of citizens' pockets and purses.

Is it a good thing to have a population armed with tools of surveillance at all times? On one hand, it seems nice that a common phone can capture an incident of police brutality or a politician's revelation. But the intrusive technology might not seem so fantastic when you're the one being exposed in a private moment. In a 1996 article for Wired, science-fiction author David Brin predicted a world of "ubiquitous cameras, perched on every vantage point." Brin continued:

One of the basic decisions we all face in times ahead will be this: Can we stand living our lives exposed to scrutiny—our secrets laid out in the open—if in return we get flashlights of our own that we can shine on the arrogant and strong? Or is privacy's illusion so precious that it is worth any price, including surrendering our own right to pierce the schemes of the powerful?

Even our traditional definition of "privacy" may no longer apply in a world of omnipresent cameras and recorders, according to Woodrow Hartzog, assistant professor at Samford University's Cumberland School of Law, where he writes on privacy and human engagement with electronics. "Privacy has really ceased to be helpful as a term to guide policy in the United States," he says, "because privacy means so many different things to so many different people. The law initially drew this hard line between public and private, but that's not how we live our lives anymore, and that's not what we expect in our day to day interactions."

Hartzog takes it beyond basic smartphones as a means of surveillance—the next generation of technologies to threaten America's old privacy structure include steadily improving facial-recognition software and consumer devices like Google's forthcoming glasses. With people able to spot and instantly search strangers, big public places could soon get a lot more intimate. Do you want the person leering at you from across the mall to be able to inconspicuously record you and your family, then quickly find out who you are and what school your children attend? In the more controlled environment of a political event, if a president continues to confiscate gadgets, will we arrive at a time when everyone at a fundraiser must remove their eyeglasses? They could be, after all, recording secret videos.

The result is not so much a complete loss of privacy, Hartzog explains, but a threat to obscurity, which he calls a "subset of privacy." "Obscurity does not always mean private, but it means something that's difficult to access and understand," he says. "When you meet someone at a party, there's lots of information about you that you might not necessarily consider private: your politics, your day-to-day schedule, who your parents are. You may have a blog with all that stuff on it, but it's not front and center. Technology like Google glasses is going to interfere with that. It interferes with the natural social interactions that we've come to know." Obscurity could be something we didn't know we cherished until it starts slipping away.

Romney is not an obscure figure, and whether the person who recorded him can be arrested and charged comes down to the question of whether Romney had a "reasonable expectation of privacy" when he made his remarks. In an ever more public world, with the line that constitutes "private" becoming remarkably complex and indistinct, who can really have that expectation, anywhere? "Ask any legal scholar what they think about the reasonable expectation of privacy, and the general answer is going to be that it varies wildly," says Hartzog (who, as a caveat, says he doen't know enough about the Romney video to assess its legality). "A lot of time it's just gut instincts and seemingly arbitrary factors. [Romney's] wasn't a televised speech, but it also wasn't a one-on-one conversation in a back room somewhere. To add onto this particular example, you have the public's interests in what the highest officers in the land say and believe."

A savvy politician might already assume that every utterance is being recorded. But it's interesting to consider how rampant recordings might change regular people's behavior amongst their friends and loved ones. If you knew everyone at a cocktail party could be filming you with their bifocals, what might you say or not say? As we digitize and disseminate more of our formerly private moments, regular citizens can expect to join public figures in the need to be circumspect—you might join Mitt Romney in thinking 47 percent of Americans are freeloaders, but soon, perhaps, nobody would be comfortable saying as much.

It turns out the Orwellian dystopic future, as imagined in so many movies and novels, was essentially accurate. As predicted, we now live in a state of near constant surveillance. But it's fascinating that the fiction was wrong about one thing: It's not the government spying on all the citizens, it's the citizens themselves.

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