Conning Congress: privacy and the 1994 Communications Assistance for Law Enforcement Act.

• Author: Twight, Charlotte

Despite a benign-sounding rifle, the 1994 federal Communications Assistance for Law Enforcement Act (CALEA) (1) is emblematic of today's ubiquitous government encroachment on the privacy of Americans. Although represented prior to passage as an innocuous measure intended only to maintain existing government authority, CALEA as statutory law immediately became a springboard in the government's quest for increased surveillance power. Indeed, in implementing CALEA through its Third Report and Order of August 31, 1999, the Federal Communications Commission (FCC) gave the Federal Bureau of Investigation (FBI) unprecedented power, first, to track the physical location of cellular phone users and, second, to obtain the content of private communications in a variety of circumstances without a probable-cause warrant. How and why CALEA achieved passage, how overreaching federal officials have used it, and how recent court rulings have affected CALEA's implementation reveal much about the multifaceted threat to privacy emerging in the United States as the new millennium begins.

Today many people resent the invasion of their privacy by commercial firms' use of new Internet software capabilities. As software "cookies" record our paths through the Internet and private firms seek to amass commercially valuable profiles of us, increasingly detailed portraits of our personal lives are being compiled by strangers without our consent.

Yet when government intrudes on personal privacy, the stakes are even higher. Already the central government has mandated the creation of vast databases recording every check we write, every bank deposit we make, every new job we take, every employee we hire, our income, our educational experiences, even medical information given in confidence to physicians (Twight 1999). Federal databases linked to Social Security numbers continue to proliferate. Moreover, although the federal government continues to resist private encryption not transparent to government authorities, projects such as the National Security Agency's (NSA) Echelon and the FBI's Carnivore sweep ever more personal information into the hands of the government. (2)

The direct threat to individuals arising from the collection of such information is not the only issue. The very existence of widespread surveillance by persons with broad powers and uncertain motivation radically changes the ethos of a free people. Long ago the utilitarian philosopher Jeremy Bentham elucidated the consequences of such intrusions. Seeking a superior method for getting inmates to comply with prison rules, Bentham in 1787 designed an institutional architecture intended to strip inmates of all privacy and to make them continuously vulnerable to observation by a government official. Bentham called it the Panopticon. As Reg Whitaker describes it,

The idea of the Panopticon is simple. Imagine a prison constructed in circular form. On the outer perimeter of each level are the individual cells, each housing a single prisoner and each entirely isolated from the other to make it impossible for a prisoner to see or hear fellow prisoners. Each cell is visible to the gaze of the Inspector, who is housed in a central office from which he can scan all cells on the same level. Through a system of apertures and communication tubes ... each prisoner is aware of the potential scrutiny of the Inspector at any time of the day or night. (1999, 32-33) Because the prisoners "fear that they may be constantly watched, and fear punishment for transgressions, they internalize the rules," so that actual punishment becomes largely unnecessary. Whitaker views this "discipline via surveillance" at the core of Panopticon as a "technique of power internalized, of power exercised without the direct presence of coercion" (33-34).

The broad implications of Bentham's metaphor for the wielding of government power today are apparent. Who can any longer doubt that surveillance has become "a crucial tool ... the most crucial tool of all" for modern governments? (Whitaker 1999, 41-42). Emphasizing the centrality of information acquisition to the "panoptic state," Whitaker observes that

the routine gathering of statistics covering every aspect of society, culture, and economy is an activity intrinsic to the modern state, but one that barely existed in anything but the most rudimentary and fragmentary form in earlier eras.... The object is always to construct an understanding of the social world in order to change or control it.... Statistical surveillance is never knowledge for its own sake.... It is always knowledge for the sake of control, and it has most often been in the service of the state--although ... perhaps less so in the present and near future than in the immediate past. (1999, 41-42, my emphasis) Although Whitaker's perspective on the future of government surveillance seems overly sanguine, the Panopticon metaphor suggests the dynamics and likely results of the increasing government surveillance now authorized by U.S. statutory law.

Through statutes such as CALEA, the central government is continuing to expand its collection of information about law-abiding American citizens. It is a quest driven in no small part by the government's continuing success in using political transaction-cost manipulation to achieve its ends.

An Analytical Framework

The passage of CALEA provides some of the most vivid examples of constitutionallevel political transaction-cost manipulation that I have seen in the twenty years since I developed a theory of such manipulation and began studying its applicability to U.S. government actions (Twight 1983, 1988, 1994). Because that theory provides a backdrop for the analysis that follows, a brief summary is necessary.

By analogy to economic transaction costs in markets, I define constitutionallevel political transaction costs as the costs to individuals of negotiating and enforcing collective political agreements that influence the scope of government authority--in other words, the position of the border between what is handled by government and what is regarded as outside its purview. Constitutional-level political transaction costs thus encompass both costs of perceiving relevant political information (information costs) and costs of acting on those perceptions (which I term agreement and enforcement costs). In what follows, I use the shorter phrase political transaction costs to denote these costs.

Animating the theory is the idea that government officials as individuals often have both the incentive and the capacity to manipulate the political transaction costs of private citizens (and of each other) so as to achieve more of what officeholders want with less resistance from the public. Officeholders often augment transaction costs, artificially increasing the costs to private citizens or other officeholders of resisting the authority-changing measures the acting officeholders favor. The motive for this behavior is readily understandable: if government officials can increase the marginal costs to voters or key decision makers of understanding or taking political action to oppose a measure that changes the scope of government authority, they can reduce political resistance to the measure. For example, officeholders may mitigate resistance by misrepresenting the contents of a bill, by using incremental strategies, by tying controversial measures to popular ones, by using tax strategies that obscure a program's cost, and so forth.

Artificially increased political transaction costs in effect drive a wedge between voter preferences and political action responsive to those preferences. The theory identifies various determinants influencing an individual officeholder's decision to favor a measure that increases transaction costs: executive and party support for the measure; impact on officeholder job security and perquisites; third-party payoffs; officeholder ideology; the measure's complexity and perceived importance to constituents; publicity, time, and the existence of an appealing rationale for the measure (Twight 1983, 1988).

Once in place, institutional changes that increase the public's transaction costs of resisting expanded federal authority set in motion a process of accommodative ideological change that further lessens the likelihood of restoring the status quo ante (Higgs 1985, 1987; Twight 1992). Twentieth-century U.S. politics has supplied countless examples of government manipulation of constitutional-level political transaction costs buttressing institutional changes that are later followed by concordant ideological change. The legislative histories of Social Security, income tax withholding, public education, Medicare, and other government-expanding measures have proved consistent with this interpretation (Twight 1993, 1995, 1996, 1997).

The astonishing legislative history of CALEA shows that its passage, like these earlier institutional changes, did not reflect the preferences of the American people at the time. Consistent with transaction-cost manipulation theory, key federal officials lied and used a panoply of related strategies to con Congress and the American people into supporting CALEA. The result has been to empower further the FBI and other law enforcement authorities to reach into domains of personal privacy formerly protected by the Fourth Amendment to the U.S. Constitution.

How did it happen?

Tricks of the Trade: The Passage of CALEA

Beginning in 1991, the FBI began the quest that ultimately resulted in the passage of CALEA. From the outset, the FBI argued that its existing surveillance authority was being thwarted by new technological developments and that only additional legislation could remedy the situation. FBI director Louis Freeh spearheaded the agency's efforts to secure such legislation. For Director Freeh, the 1994 CALEA hearings were the culmination of years of discussions among law enforcement authorities, the...