March 18, 2010— -- When it comes to portraying Big Brother on the big screen, how close is Hollywood fiction to real-world fact?
Intercepting private cell phone calls. Deploying machines to do full-body and iris scans. Using Global Position System (GPS) data to track people in real-time.
With the advance of technology, those scenarios have moved from the stuff of sci-fi fantasy to the realm of reality. But, digital rights advocates say, privacy law has not kept up.
"We're in sort of a new world where we've got social networking, we've got location-based services, we've got search. We've got all of these things that weren't around in 1986 when our last electronic privacy law was written," said Nicole Ozer, technology and civil liberties policy director for the American Civil Liberties Union. "Four years is a lifetime in the technology world, 24 years is like the dark ages."
At this year's South by Southwest Interactive conference, an annual social media festival that ended earlier this week, Ozer and Electronic Frontier Foundation attorney Kevin Bankston used a handful of Hollywood flicks to highlight the importance of balancing the government's ability to surveil with an individual's right to privacy.
Here are a few of the movies they singled out:
In this 2007 thriller, Matt Damon plays Jason Bourne, a trained killer trying to dodge the Central Intelligence Agency while uncovering his true identity.
In one scene, the CIA starts tracking a British reporter when they intercept a cell phone call in which he mentions "Operation Blackbriar," a secret program to groom assassins for the CIA.
Anything can happen in the movies, but is this possible in reality?
In short, yes.
"Echelon is a real thing, an electronic surveillance program of radio signals," said Bankston.
From a variety of sources, including patents from National Security Agency contractors, he said it's known that this kind of voice activated and voice recognition program is used in the U.S. and by allies in the U.K., Japan and elsewhere.
Privacy Advocates Use Film to Highlight Spying Concerns
Authorities program Echelon to listen for key words and sent out an alert when they're used.
Bankston said that broad, mass surveillance automated to flag keywords is technically possible and a major concern for privacy watchdog groups.
Soon after the attacks of Sept. 11, 2001, President George Bush authorized warrantless wiretapping to protect national security. But though authorities characterized it as targeting international communities linked to terrorism, Bankston said, it has engaged in "wholesale surveillance" rather than "retail surveillance."
"[It's] where a lot of data gets sucked up and then they choose who to listen to or whose e-mail to read after they've sucked it up," Bankston said, adding that the EFF believes that to be a violation of the Fourth Amendment expectation of privacy.
In "The Dark Knight," Batman (played by actor Christian Bale) uses every cell phone in Gotham in an attempt to catch the Joker.
He turns every cell phone microphone in the city into a bug to listen for the Joker's voice and uses the speakers on the phones to send out sonar signals that could help identify the Joker's location.
While Bankston wasn't aware of lawful intercept systems that could, in real-time, spy at that scale, law enforcement has the capacity to turn on an individual's cell phone mic and remotely eavesdrop, he said.
"Do they have the capacity to turn on your microphone?" he asked. "They absolutely do have that capacity. We have seen it used in a couple of law enforcement cases, particularly drug and mafia cases."
Law enforcement should be able to use the tools available to it, Bankston said, but that in situations where individuals have an expectation of privacy, authorities should have to go to court to demonstrate probable cause that there has been a crime or will be a crime and that what they will find will be evidence.
"Should the government be able to wiretap people?" he asked. "Sure, I have no problem with that. The problem is: What's the standard? Where are the checks and balances?"
In this 2006 film directed by Martin Scorcese, Massachusetts authorities and the Irish mafia try to infiltrate each other with undercover moles. In one scene, police attempt to track the mobsters through their cell phones.
Communicating location via cell phone is now a common practice, especially with the wide range of geo-social services that let friends and family keep tabs on each other.
But the legality of government tracking is an under-explored area, Ozer said.
"Under what standard can the government track your cell phone is currently a very disputed topic in the courts, both in terms of tracking your phone in real time ... or accessing stored records," she said.
Given how quickly location-based services are growing, she said, it's important for the law to ramp up to the level of the technology.
"Information about who we are and where we go can be really sensitive information, and the standards for accessing that information is really important and not something that's being properly considered," she said.