Now that we know we are surveilled 24/7 by the National Security Agency, the FBI, local police, Facebook, LinkedIn, Google, hackers, the Russians, the Chinese, the North Koreans, data brokers, private spyware groups like Black Cube, and companies from which we've ordered swag on the Internet, is there still any "right to be forgotten," as the Europeans call it? Is there any privacy left, let alone a right to privacy?
In a world in which most people reveal their intimate secrets voluntarily, posting them on social media and ignoring the pleas of security experts to protect their data with strong passwords -- don’t use your birth date, your telephone number, or your dog's name -- shouldn't a private investigator, or PI, like me be as happy as a pig in shit? Certainly, the totalitarian rulers of the twentieth century would have been, if such feckless openness had been theirs to abuse.
As it happens, tech -- or surveillance capitalism -- has disrupted the private investigation business as much as it’s ripped through journalism, the taxi business, war making, and so many other private and public parts of our world. And it's not only celebrities and presidential candidates whose privacy hackers have burned through. Israeli spyware can steal the contacts off your phone just as LinkedIn did to market itself to your friends. Google, the Associated Press reported recently, archives your location even when you’ve turned off your phone. Huge online database brokers like Tracers, TLO, and IRBsearch that law enforcement and private eyes like me use can trace your address, phone numbers, email addresses, social media accounts, family members, neighbors, credit reports, the property you own, foreclosures or bankruptcies you’ve experienced, court judgments or liens against you, and criminal records you may have rolled up over the years.
Ten years ago, to subscribe to one of these databases, I had to show proof that I was indeed a licensed investigator and pass an on-site investigation to ensure that any data I downloaded would be protected. I was required to have a surveillance camera and burglar alarm on the building where my office was located, as well as a dead bolt on my office door, a locked filing cabinet, and double passwords to get into my computer. Now, most database brokers just require a PI or attorney license and you can sign right up online. Government records -- federal and state, civil and criminal -- are also increasingly online for anyone to access.
The authoritarian snoops of the last century would have drooled over the surveillance uses of the smartphones that most of us now carry. Smartphones have, in fact, become one of the primo law enforcement tools other than the Internet. "Find my iPhone" can even find a dead body -- if, that is, the victim left her iPhone on while being murdered. And don’t get me started on the proliferation of surveillance cameras in our world.
Take me. I had a classic case that shows just how traceable we all now are. There was a dead body, a possible murder victim, but no direct evidence: no witnesses, no DNA, no fingerprints, and no murder weapon found. In San Francisco's East Bay, however, as in most big American cities, there are so many surveillance cameras mounted on mom-and-pop stores, people's houses, bars, cafes, hospitals, toll bridges, tunnels, even in parks, that the police can collect enough video, block by block, to effectively map a suspect driving around Oakland for hours before hitting the freeway and heading out to dump a body, just as the defendant in my case did.
Once upon a time, cops and dirty private eyes would have had to attach trackers to the undercarriages of cars to follow them electronically. No longer. The particular suspect I have in mind drove his victim’s car across a bridge, where cameras videotaped the license plate but couldn't see inside the car; nor, he must have assumed, could anyone record him on the deserted road he finally reached where he was undoubtedly confident that he was safe. What he didn't notice was the CALFIRE video camera placed on that very road to monitor for brush fires. It caught a car’s headlights matching his on its way to the site he had chosen to dump the body. There was no direct evidence of the murder he had committed, just circumstantial, tech-based evidence. A jury, however, convicted him in just a few hours.
A World of Tech Junkies
In our world of the unforgotten, tech is seen as a wonder of wonders. Juries love tech. Many jurors think tech is simply science and so beyond disbelief. As a result, they tend to react badly when experts are called as defense witnesses to disabuse them of their belief in tech's magic powers: that, for instance, cellphone calls don’t always pinpoint exactly where someone was when he or she made a call. If too many signals are coming in to the closest tower to a cell phone, a suspect's calls may be rerouted to a more distant tower. Similarly, the FBI's computerized fingerprint index often makes mistakes in its matches, as do police labs when it comes to DNA samples. And facial recognition systems, the hottest new tech thing around (and spreading like wildfire across China), may be the most unreliable of all, although that certainly hasn't stopped Amazon from marketing a surveillance camera with facial recognition abilities.
These days, it’s hard to be a PI and not become a tech junkie. Some PIs use tech to probe tech, specializing, for example, in email investigations in big corporate cases in which they pore through thousands of emails. I recently asked a colleague what it was like. "It's great," he said. "You don't have to leave your office and for the first couple of weeks you entertain yourself finding out who's having affairs with whom and who's gunning for whom in the target's office, but after that it's unspeakably tedious and goes on for months, even years."
When I started out, undoubtedly having read too many Raymond Chandler and Sue Grafton novels, I thought that to be a real private eye I had to do the old-fashioned kind of surveillance where you actually follow someone in person. So I agreed to tail a deadbeat mom who claimed to be unemployed and wanted more alimony from her ex. She turned out to be a scofflaw driver, too, a regular runner of red lights. (Being behind her, I was the one who got the tickets, which I tried to bill on my expense report to no avail.) But tailing her turned out to make no difference, except to my bank account. Nor did tech. Court papers had already given us her phone and address but no job information. Finally, I found her moonlighting at a local government office. How? The no-tech way: simply by phoning an office where one of her relatives worked and asking for her. "Not in today," said the receptionist helpfully and I knew what I needed to know. It couldn’t have been less dramatic or noir-ish.
These days, tech is so omnipresent and omnivorous that many lawyers think everything can be found on the Internet. Two lawyers working on a death-penalty appeal once came to see me about working on their case. There had been a murder at a gas station in Oakland 10 years earlier. Police reports from the time indicated that there was a notorious "trap house" where crack addicts were squatting across from the gas station. The lawyers wanted me to find and interview some of those addicts to discover whether they'd seen anything that night. It would be a quick job, they assured me. (Translation: they would pay me chump change.) I could just find them on the Internet.
I thought they were kidding. Crack addicts aren’t exactly known for their Internet presence. (They may have cell phones, but they tend not to generate phone bills, rental leases, utility bills, school records, mortgages, or any of the other kinds of databases collect that you might normally rely on to find your quarry.) This was, I argued, an old-fashioned shoe-leather-style investigation: go to the gas station and the trap house (if it still existed), knock on doors to see if neighbors knew where the former drug addicts might now be: Dead? Still on that very street? Recovered and long gone?
In a world where high-tech is king, I didn't get the job and I doubt they found their witnesses either.
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You'd think that, in a time when tech is the story of the day, month, and year and a presidential assistant is even taping without permission in the White House Situation Room, anything goes. But not for this aging PI. I mean, really, should I rush over to a belly-dancing class in Berkeley to see if some guy's fiancée and the teacher go back to her motel together? (No.) Should I break into an ex-lover's house to steal memos she'd written to get him fired? (Are you kidding?) Should I eavesdrop on a phone call in which a wife is trying to get her husband to admit that he battered her? (Not in California, where the law requires permission from every party in a phone call to be on the line, thereby wiping out such eavesdropping as an investigative tool -- only cops with a warrant being exempt.)
I certainly know PIs who would take such cases and I’m not exactly squeaky clean myself. After all, as a journalist working for Ramparts magazine back in the 1960s, I broke into the basement of the National Student Association (with another reporter) to steal files showing that the group’s leaders were working for the CIA and that the agency actually owned the very building they occupied. In a similar fashion, on a marginally legal peep-and-trespass in those same years, another reporter and I crawled through bushes on the grounds of a VA Hospital in Maryland where we had been told that we could find a replica of a Vietnamese village being used to train American assassins in the CIA’s Phoenix program. That so-called pacification program would, in the end, kill more than 26,000 Vietnamese civilians. We found the “village,” secretly watched some of the training, and filed the first piece about that infamously murderous program for New York’s Village Voice.
Those ops were, however, in the service of a higher ideal, much like smartphone videographers today who shoot police violence. But most of surveillance capitalism is really about making sure that no one in our new world can ever be forgotten. PIs chasing perps in divorce cases are a small but tawdry part of just that. But what about, to take an extreme case in which the sleazy meets the new tech world big time, the FBI's pursuit of lovers of kiddy porn, which I learned something about by taking such a case? The FBI emails a link to a fake website that it’s created to all the contacts a known child pornographer has on his computer or phone. It has the kind of bland come-on pornographers tend to use. If you click on that link, you get a menu advertising yet more links to photos with titles like "my 4-year-old daughter taking a bath." Click on any of those links and you’ll be anything but forgotten. The FBI will be at your door with cuffs within days.
Does someone who devours child porn have a right to be forgotten? Maybe you don’t think so, but what about the rest of us? Do we? It’shardly a question anymore.
The Good and Ugly Gotchas of This Era
When all the surveillance techniques on those information databases work, it's like three lemons lining up on a one-armed bandit. Recently, for instance, a California filmmaker called me, desperate. She was producing a movie about the first Nepalese woman to climb Mount Everest. Her team had indeed reached the summit, but were buried in an avalanche on the way down with only one survivor. The filmmaker wanted to find that man.
Could I do so? She didn't have enough money to send me to Nepal. (Rats!) But couldn’t I find him on the Internet? His name, she told me, was Pemba Sherpa. What's his family name, I asked? That's when I found out that "sherpa" isn't just a Western term for Nepalese who guide people up mountains; it's the surname of many Nepalese. Great! That's like asking me to find John Smith with no birthdate, social security number, address, or even the Nepalese equivalent of the state where he lives. In my mind’s eye, I could instantly see my database search coming up with the always frustrating "your search criteria resulted in too many records found." I also had my doubts that, despite the globalization of our tech world, most Nepalese were on the Internet.
Amazingly, however, checking out “sherpas,” I promptly found a single Pemba in my search, unfortunately with -- the bane of a PI's life -- not another piece of information.
Okay, Google, I thought, it’s all yours. No Pemba on the first five pages of my search there. (Groan.) But it was late at night and I was feeling obsessive, so I kept going. (Note to home investigators: don't give up on Google after those first few pages.) From earlier research, I had discovered that one of the main Nepalese communities outside that country was in Portland, Oregon, where many mountaineering companies are also based. On maybe my 28th Google page, I suddenly saw a link to a Portland alternative newspaper story from the mid-1990s. (Who was even scanning in such articles back then?)
I clicked on it. The piece was about a Portland Pemba Sherpa who had gone back to his native village to help its inhabitants get electricity. The article went on to say that he had left Nepal "because too many of his friends had died on the mountain." Hmmm. It also reported that he was married to a mathematics teacher at a Portland community college.
We’re talking about a more-than-20-year-old article! Still, the next morning I doggedly called the college and yes, his wife was teaching math there. I was patched through to the math department where, yes again, the wife picked up and, yes, her husband was the sole survivor of that climb, and she was sure he'd want to be interviewed for the movie.
Bingo! The actual wonders of the Internet and a heartwarming story about someone who needed to be found. Finding an ancient nanny to invite to the wedding of a guy she had raised -- after they had been out of contact for decades -- proved a similarly happy search. But that’s rare. The question, not just for PIs but for all of us, is this: Should everyone be so track down-able, even if they don’t wish to be? Some investigators, in the spirit of the moment, think that if there's an unknowable about anyone, it should be uncovered. The journalist who outed novelist Elsa Ferrante really thought he'd done something, but it was just another in an increasing number of mean-spirited gotchas of our era.
Why do people need privacy anyway? The freedom and community that Internet utopians promised us has led instead to the scraping open of our lives by law enforcement, social media, hackers, marketers, and the world's governments. Now we're left largely to our own devices when it comes to what little we can do about it and the global surveillance culture that it’s enmeshed all of us in.
Back in the late 1960s, Erwin Knoll, editor of the Progressive magazine, made President Richard Nixon's enemy list. That qualified him to be wiretapped by the FBI, so he asked his wife Doris to call female friends every day and discourse on grisly gynecological matters to disturb the listening agents (mostly male in those days). Erwin wondered if they wouldn’t think it was some kind of code.
Alexa! I just got back from my gynecologist and...