John Whitehead's Commentary
Geofence Surveillance: First, They Spied on Protesters. Then Churches. You’re Next
“I know the capability that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.”—Senator Frank Church on Meet The Press, 1975
If you give the government an inch, it will always take a mile.
This is how the slippery slope to all-out persecution starts.
Martin Niemöller’s warning about the widening net that ensnares us all, a warning issued in response to the threat posed by Nazi Germany’s fascist regime, still applies.
“First they came for the socialists, and I did not speak out—because I was not a socialist. Then they came for the trade unionists, and I did not speak out— because I was not a trade unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me.”
This particular slippery slope has to do with the government’s use of geofence technology, which uses cell phone location data to identify people who are in a particular area at any given time.
First, police began using geofence warrants to carry out dragnet sweeps of individuals near a crime scene.
Then the FBI used geofence warrants to identify individuals who were in the vicinity of the Capitol on Jan. 6, 2021.
It wasn’t long before government officials in California used cell phone and geofence data to track the number and movements of churchgoers on church grounds during the COVID-19 lockdowns.
If we’ve already reached the point where people praying and gathering on church grounds merits this level of government scrutiny and sanctions, we’re not too far from free-falling into a total surveillance state.
Dragnet geofence surveillance sweeps can and eventually will be used to target as a suspect every person in any given place at any given time and sweep them up into a never-ending virtual line-up in the hopes of matching a criminal to every crime.
There really can be no overstating the danger.
The government’s efforts to round up those who took part in the Jan. 6 Capitol protests provided a glimpse of exactly how vulnerable we all are to the menace of a surveillance state that aspires to a God-like awareness of our lives.
Relying on selfies, social media posts, location data, geotagged photos, facial recognition, surveillance cameras and crowdsourcing, government agents compiled a massive data trove on anyone and everyone who may have been anywhere in the vicinity of the Capitol on January 6, 2021.
Included in that data roundup were individuals who may have had nothing to do with the protests but whose cell phone location data identified them as being in the wrong place at the wrong time.
You didn’t even have to be involved in the Capitol protests to qualify for a visit from the FBI: investigators reportedly tracked—and questioned—anyone whose cell phones connected to wi-fi or pinged cell phone towers near the Capitol.
One man, who had gone out for a walk with his daughters only to end up stranded near the Capitol crowds, actually had FBI agents show up at his door days later. Using Google Maps, agents were able to pinpoint exactly where they were standing and for how long.
The massive amount of surveillance data available to the government is staggering.
As investigative journalists Charlie Warzel and Stuart A. Thompson explain, “This [surveillance] data…provide[s] an intimate record of people whether they were visiting drug treatment centers, strip clubs, casinos, abortion clinics or places of worship.”
In such a surveillance ecosystem, we’re all suspects and databits to be tracked, catalogued and targeted.
Forget about being innocent until proven guilty.
Although the Constitution requires the government to provide solid proof of criminal activity before it can deprive a citizen of life or liberty, the government has turned that fundamental assurance of due process on its head.
Now, thanks to the digital trails and digital footprints we all leave behind, you start off guilty and have to prove your innocence.
In an age of overcriminalization, when the average American unknowingly commits at least three crimes a day, there is no one who would be spared.
The ramifications of empowering the government to sidestep fundamental due process safeguards are so chilling and so far-reaching as to put a target on the back of anyone who happens to be in the same place where a crime takes place.
As Warzel and Thompson warn:
“To think that the information will be used against individuals only if they’ve broken the law is naïve; such data is collected and remains vulnerable to use and abuse whether people gather in support of an insurrection or they justly protest police violence… This collection will only grow more sophisticated… It gets easier by the day… it does not discriminate. It harvests from the phones of MAGA rioters, police officers, lawmakers and passers-by. There is no evidence, from the past or current day, that the power this data collection offers will be used only to good ends. There is no evidence that if we allow it to continue to happen, the country will be safer or fairer.”
Saint or sinner, it doesn’t matter because we’re all being swept up into a massive digital data dragnet that does not distinguish between those who are innocent of wrongdoing, suspects, or criminals.
Case in point: consider what happened to Calvary Chapel during COVID-19.
Government officials in Santa Clara County, Calif., issued a shelter-in-place order in March 2020, dictating whom residents could see, where they could go, what they could do, and under what circumstances.
County officials imposed even harsher restrictions on churches, accompanied by the threat of crippling fines for those that did not comply with the lockdown orders.
Then Santa Clara officials reportedly used geofence surveillance technology to monitor the concentrations of congregants at Calvary Chapel during the COVID-19 lockdowns in 2020 and 2021, using their findings to justify levying nearly $3 million in public health fines against the church for violating the county’s strict pandemic restrictions.
Despite the U.S. Supreme Court’s ruling that similar restrictions unconstitutionally singled out houses of worship for especially harsh treatment and “struck “at the very heart of the First Amendment’s guarantee of religious liberty,” county officials have sought to collect millions of dollars in fines levied against churches, including Calvary Chapel, for violating the county’s mandates.
At a minimum, the use of geofence surveillance to monitor church attendees constitutes an egregious violation of the churchgoers’ Fourth Amendment rights and an attempt to undermine protected First Amendment activities relating to the freedom of speech, the free exercise of religion, and the right of the people peaceably to assemble.
Still, the government’s use of geofence surveillance goes way beyond its impact on church members and anyone in the vicinity of the Jan. 6 protests.
The ramifications for all of us are far-reaching.
Mass surveillance has been shown to chill lawful First Amendment activities, and historically has been used to stifle dissent, persecute activists, and harass marginalized communities.
A study conducted by Roger Clarke, the famed Australian specialist in data surveillance and privacy, indicates that the costs resulting from the erosion of personal privacy are so significant that they essentially threaten the very foundation of a democratic society.
Some of the most serious harms include:
- A prevailing climate of suspicion and adversarial relationships
- Inequitable application of the law
- Stultification of originality
- Weakening of society’s moral fiber and cohesion
- Repressive potential for a totalitarian government
- Ex-ante discrimination and guilt prediction
- Inversion of the onus of proof.
In other words, the chilling effects of pervasive surveillance give rise to a constant, justifiable fear in even the most compliant, law-abiding citizen.
Of course, that’s the point.
The government wants us muzzled, complacent and compliant.
So far, it’s working.
Americans are increasingly self-censoring and marching in lockstep with the government’s (and corporate America’s) dictates, whether out of fear or indoctrination, or a combination.
In the meantime, the use of geofence warrants continues to be debated in the legislatures and challenged in the courts. For instance, while a California court found that a broad geofence search warrant violated the Fourth Amendment, a federal district judge for the District of Columbia upheld the use of geofence warrants by police in connection with the events of Jan. 6.
No matter how the courts rule, however, one thing is clear: these dragnet geofence searches are well on their way to becoming the eyes and ears of a police state that views each and every one of us as a potential suspect, terrorist and lawbreaker.
As I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, this is how technologies purportedly adopted to rout out dangerous criminals in our midst are used to conquer a free people.