The Informant

Earlier this week, the Department of Homeland Security released this video, which will now be played at select (meaning 588) Walmart check-out counters. The video depicts DHS Secretary Janet Napolitano encouraging shoppers to be on the alert for suspicious activity:

The idea behind this “If You See Something, Say Something” campaign is to get shoppers to look for, identify, and report indicators of terrorism and other crime in their communities. (And apparently is not an attempt to usher in a creepy SciFi world, where ubiquitous screens warn of infiltrators.) It’s also part of what many have identified as a growing reliance on outsourced and crowdsourced intelligence.

In a recent paper in the California Law Review, UCLA Law Professor Jon D. Michaels wrote about these “public-private intelligence partnerships” in the war on terror as a broadening and potentially troubling strategy.

First, there’s the phenomenon of increasingly going to private companies to obtain personal information. Warrantless wiretapping and sharing of users’ phone call and internet histories, for instance, have all taken place under informal, hand-shake agreements with private companies, rather than through traditional legal channels of subpoenas and courts. The National Security Agency has turned to companies like FedEx, Western Union, E. Swift, and even LexisNexis for data that they would otherwise never be able to access:

People simply do not interface with the government in the same ways or with the same frequency as they do with the private sector, and thus the intelligence agencies find themselves particularly drawn to, and in some respects dependent upon, private data resources. Coupled with the private sector’s attractiveness as a convenient repository of information is its legal allure, notably in instances when private data gathering is subject to less stringent regulation than what the government faces.

The idea of involving average citizens in intelligence-gathering is perhaps less well-known, but has a significant role in the War on Terror as well. Michaels points to a program called TIPS (Terrorist Information and Prevention System) as a key example. The program was designed to make certain types of professionals aware of their unique ability to gather and report otherwise inaccessible information. Cable installers, utility workers, letter carriers, and truck drivers all might have access to a private home or warehouse and it would benefit everyone, the program implied, if these folks were vigilant and on the look-out for suspicious items and activities. (Congress nixed TIPS quickly, but recent reports indicate that some utility workers and paramedics have been deputized as “Terrorism Liaison Officers” under similar programs.)

Why does it matter? Michaels sites a simple, but often overlooked idea: there are reasons that we put restrictions on what the government can and can’t access. That the government now seems determined to find the information by other means is probably not something that can be stopped (nor is it necessarily desirable to fully stop it) he says. But, Michaels writes, without proper oversight and controls, we’re bound to have companies, agencies, and individuals crossing the public/private line.