The dangers of fighting terrorism with technocommunitarianism: constitutional protections of free expression, exploration, and unmonitored activity in urban spaces.

• Author: Blitz, Marc Jonathan

The narrower the circle to which we commit ourselves, the less freedom of individuality we possess.... In a narrow circle, one can preserve one's individuality, as a rule, in only two ways. Either one leads the circle (it is for this reason that strong personalities like to be "number one in the village"), or one exists in it. only externally, being independent of it in all essential matters.

--Georg Simmel, Group Expansion and the Development of Individuality (1)

INTRODUCTION

The cult television series "The Prisoner" tells the story of a man who, after losing and then regaining consciousness, opens the blinds of his London flat to find that the world outside has undergone a Kafkaesque transformation: the skyscrapers and city streets visible from his window have been replaced with a small and serene village. (2) Accompanying this stark change in his external environment is a sharp decrease in his freedom. Whereas his life in London was his own, he discovers upon venturing out into the village (3) that his decisions and actions are now community property. He is watched everywhere he goes both by neighbors and hidden cameras. (4) He is expected to be an enthusiastic participant in all communal events, and is ostracized as "unmutual" when he instead seeks out privacy and seclusion. (5) The town's authorities are intent on ensuring that residents cannot opt out of village life: quaint taxis transport people within the village, but never outside of it; phone service is strictly local; maps at the village store show nothing beyond the community's boundaries. (6) Each showing of independence or defiance by the protagonist brings strong pressure from the authorities to fully account for (and recant) his actions. (7) In short, his familiar urban life is replaced with a communitarian dystopia, hostile to privacy and deeply suspicious of every act of individuality. (8)

The story of environmental shock depicted in this television series has also made an appearance in sociological observation. Decades ago, one of the founders of sociology, Georg Simmel, imagined what it would be like for an inhabitant of a modern metropolis to be suddenly lifted out of his urban existence and dropped into the smaller and more confining world of an ancient or medieval village. The modern city dweller, said Simmel, "could not even breathe under such conditions." (9) He could not tolerate the "limits upon [his] movements" or the restrictions on "his relationships with the outside world." (10) Nor could he suffer the loss of the "inner independence and differentiation" that would accompany such a shift from the city to a close knit, loyalty-demanding community. (11) While such an environment may have seemed tolerable to individuals born and bred within its confines, it would be insufferable, said Simmel, to anyone who long enjoyed the individual freedom made possible by the anonymity and incomparable diversity of modern city life. This modern urban environment, he stressed, provides individuals with a "type and degree of personal freedom to which there is no analogy in other circumstances." (12) In the limited space of a small village, one can express individuality only when acting as a leader, as the "number one" figure "in the village," or when "exist[ing] in it only externally [as an outcast]." (13) By contrast, in city life, the multitude of options and the indifference of neighbors provide people with plenty of room to follow their own unique paths while still being part and parcel of the larger urban community. As E.B White has written in his celebration of New York, city life can thus blend "the gift of privacy with the excitement of participation." (14)

But if the unparalleled individual freedom one gains in urban anonymity is deeply valued, is it also constitutionally protected? If municipal or state governments decide, for example, that the extensive freedom and anonymity provided by modern city life not only provides valuable room for individuality, but also worrisome hiding space for terrorists or criminals, can they take measures to "roll back" some of this unmonitored space? Can they make it more difficult for individuals to escape government monitoring or avoid identification in public places? Or would such a transformation cross important First Amendment or other constitutional boundary lines?

These questions are important ones as cities, police departments, and other government actors struggle with the difficult challenges associated with protecting urban areas against terrorism in the wake of the September 11 attacks and those in Madrid and London. The dangers of terrorism predictably cause such actors (and the citizens they represent) to take more interest in others' (possibly dangerous) actions. New chemical and biological weapons allow hateful individuals and small organizations to cause fatalities and economic destruction of a magnitude that could previously have been inflicted only by a large and highly visible army. Not surprisingly, law enforcement and other officials have taken a keen interest in powerful surveillance and identification technologies that might allow them to more effectively locate and thwart these very dangerous and difficult to detect threats. Not surprisingly, while such technologies may well undermine the freedoms we are used to finding in cities, many officials and citizens alike now wonder whether this is a sacrifice worth making--and whether the unparalleled anonymity and freedom that we are now accustomed to in cities is a luxury that we can no longer afford in the current security context. As Simmel himself recognized when describing the individual freedom one finds in the metropolis, such freedom is unlikely to flourish in a society that feels itself under "an incessant threat against its existence by enemies near and far." (15)

As a result, the nature of city life appears to be changing. On the streets of London, which "The Prisoner" presented over three decades ago as a striking contrast to the claustrophobic and camera-monitored confines of the main character's new and involuntarily-imposed community, individuals are now watched constantly by cameras as they walk from block to block or drive down the road. As Jeffrey Rosen observed, there are 4.2 million cameras in Britain, many in London proper, including "speed cameras and red-light cameras, cameras in lobbies and elevators, in hotels and restaurants, in nursery schools and high schools." (16) In part, these cameras are intended to protect citizens against terrorism: they were used to gather invaluable data about the July 2005 terrorist strikes against the London public transport system. (17) But they have also been used to gather significant information from street life and shopping malls that is unrelated to terror attacks or serious crimes. (18) Far from worrying that such routine monitoring of citizens will undercut individualism, the British government has taken the stance that citizens should have no anxieties about submitting themselves to external observation since, in the words of a pro-camera campaign slogan, "[i]f you've got nothing to hide, you've got nothing to fear." (19)

Just as significant as the spread of cameras is the fast embrace of new technologies that can instantaneously identify strangers as they walk through public spaces. Americans today have some experience with these technologies; they realize that they leave a trail of information about their whereabouts and activities whenever they use credit cards, make calls on cell phones, or drive their cars through electronic tollway systems. The future also promises to bring newer, more powerful identification technologies which are even more difficult to escape. The last decade, for example, witnessed tremendous growth in the use of "biometric" technologies which identify people by their distinctive physiological features. Citizens might be identified with iris or retinal scanners, or with devices that allow entry into parks or plazas only in return for an identifiable hand scan or fingerprint. Cameras might also be equipped with "face recognition software" that matches a person walking on a street to a "face print" in a database. (20)

Such technologies are already in use, on an experimental basis, in airports and at sporting events. The war on terrorism has bolstered interest in their use. The Defense Department, for example, conducted a "Human Identification at a Distance program" to "develop automated biometric identification technologies to detect, recognize and identify humans at great distances" providing "critical early warning support for force protection and homeland defense against terrorist, criminal, and other human-based threats." (21) The Defense Department has also encouraged development of so-called "3-D Combat Zone" technology that will not only be able to identify "vehicles by size, color, shape, and license tag" but also identify the faces of drivers and passengers. (22)

While many observers have expressed deep concern about this transformation of urban space, others have argued that, implemented correctly, such a technological transformation might make city life more communitarian, that is, city life would be more like a small town where everyone knows each other and knows a lot about what they do. This, they stress, need not be such a terrifying prospect. David Brin, for example, argues that tremendous good can result when emerging surveillance technologies transform each "metropolis" into "an easily spanned village." After such a transformation, he explains, citizens might well feel safer in public walking under the protective gaze of powerful cameras while simultaneously "us[ing] the godlike power [that comes with these cameras] to zoom at will from vantage point to vantage point." (23) Knowing that their "[h]omes are sacrosanct," and that the sacrifice of public anonymity is the price they must pay to exploit the wonders of new...