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Recently I watched several episodes of Unforgettable, a New-York-based crime show from 2011+. This show centres on a detective who has hyperthemesia, i.e. the ability to remember almost everything she ever has experienced. While this condition itself is intriguing and could trigger a look at what makes us human, it was one of the seemingly minor characteristics of the show that caught my attention: the subconscious propaganda of the benign surveillance state.

Surveillance candy store

The show displays a remarkable wide-spread nonchalant use of surveillance:

  • Past call records and cell-phone geo-coordinates of potential suspects are routinely acquired without a search warrant.
  • Current, real-time geo-coordinates of mobile phones are required in some episodes. While technicalities are not discussed, the use of federal Stingray devices seems to be the most likely surveillance technology in this case.
  • The lab technician of the Queens police station uses NSA-software for identifying SIM cards that might be tied to allegedly suspicious calling patterns.
  • The bank records of potential suspects and the like are routinely acquired without the mention of search warrants. In fact, search warrants are seemingly only necessary for searching real estate and computers.

Prima facie

Granted, the above usages of intrusive surveillance are rather focused and cannot be compared to, e.g., spying on religious communities based on the unsubstantiated suspicion of terrorism. Nevertheless, I show further below why the usage of these technologies can have far-reaching implications (→ Beyond our immediate imagination). Before that let me address whether the usage of such technology and the subsequently attained information prima-facie can be used for building a case. On the one hand, cell-phone records (including geographic information) seem indeed to be fair game in the United States, but, on the other hand, the use of Stingray devices by local police is controversial to such a degree that the FBI advises local authorities to drop criminal cases rather than risking the public disclosure of the use of said technology. Therefore, some of the cases built in Unforgettable might not be prosecutable at all. But, as mentioned above, this is not my main concern.

Beyond our immediate imagination

Let me get to my main contentions. There are several second-order effects that can lead to the erosion of the justice system and even to unintended consequences.

First off is the erosion of American trial law. There have been numerous reports indicating that the usage of military-grade surveillance technology not only can lead to dropping court cases (see the above Stingray example), but also to the erosion of the concept of a fair trial by denying the source of court evidence. Furthermore, incidents of obfuscating the source of court evidence through so-called parallel construction have already been reported. Both trends indicates major departure from an aspirationally fair and open legal system to a heavily lopsided one.

Second off is the the vulnerability of millions of devices due to government back doors. The severity of such back doors ranges from suitcase locks that can be picked unbeknownst to the suitcase owner to corrupting standardised and widely used encryption algorithms. What has this to do with Unforgettable? Well, Stingray is based on glaring security gaps in the mobile-telephony standards. For instance, even seemingly safe 4G phones can be forced into the unsafe GSM mode, in which these phones disclose their identity in plain text. Therefore, enven seemingly safe phones and can thus be traced by other devices. Anyone who has a receiver can record the identity of such-pinged 4G phones, which, by the way, is the technical base of Stingray. Note well that arguments against safe end-to-end encryption, which would, among others, make Stingray tracking impossible, are motivated by the intent to conduct (mass) surveillance with low effort. The argument that safe end-to-end encryption would inhibit individual criminal investigations is bogus, since, for instance, targeted hacking techniques have successfully been demonstrated by law-enforcement agencies for a wide range of investigations.

What the two above examples have in common is that we often can foresee the abuse of the surveillance technologies or the vulnerabilities they exploit. More unnerving are unforeseen examples of abuses. Take, for instance, the seemingly innocent collection of massive census data. An example for such an abuse is the rounding up of readily identified minorities for internment or even for mass-murder. An example for the former is the detention of Japanese during WWII. An example for the latter is the eerily effortless rounding up of Dutch Jews during the occupation of the Netherlands by Nazi Germany. In both cases the perpetrators gained access to census data that had been collected for unrelated usages, and used it to efficiently commit crimes on epic scales. The census data tracked ethnicity and/or religion, which was exactly needed for the above crimes. It is important to understand that such census data does not instigate mass crimes, but it makes them so much easier. In hindsight it is easy to understand how this kind of census data could be abused, so that similar aberations can hopefully be avoided in the future. But how could we avoid unintended usages that we cannot foresee? Which GSM standardiser foresaw, for instance, that weaknesses in the GSM protocol would, about three decades later, be used to remotely assassinate foreign citizens on the other side of the globe?

Conclusions, kind of

Unforgettable and other surveillance-apologetic shows do not merely worry me because of the foreseeable consequences of the surveillance techniques that are championed in these shows. Rather, what worries me is a subconscious priming/anchoring of the viewer:

  • These technologies work (of course!);
  • They are necessary for finding murders and other “evil doers” (otherwise we would not find them!);
  • We are always the good ones, and the others are (of course!) the bad ones.
  • These technologies do not erode civil liberties and the judicial system (how could they?);
  • These technologies do not have any downside, such as unintended usage by others, and they are thus, by default, never abused (do we even need to mention this?).

This kind of anchoring is very troubling since, as the name Law of Unintended Consequences already implies, we often do not foresee the catastrophic usages even of seemingly benign technologies. How could we then foresee any bad consequences at all if we subconsciously are biased toward the position that these techniques do not and cannot have any bad consequences at all?

An example in kind is the show 24 and its reliance on systematic torture. On one hand one might say that 24 is just fiction, so why should we care? My answer is, that every show, even 24, operates in context of its time, and in the time of 24, the show was cited by top-level US bureaucrats as a justification for for the US being engaged in torture and a as proof for the efficacy of torture (see, for instance, Sands’s Torture Team, p. 74). Did the writers of 24 want to inspire the US government to engage in systematic torture? I don’t think so. But did they, nonetheless, inspire the US government without having intended to do so? As we know today, 24 was not the only source of inspiration, but, as it seems, definitely one of many sources, all of which were not based in reality.

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