The Rise of Little Brother: A Survey of the Legal Constraints on Geospatial Technology (Introduction)

The Rise of Little Brother: A Survey of the Legal Constraints on Geospatial Technology by Tim Miano

Introduction:

Since George Orwell first published his now infamous dystopia novel 1984, “Big Brother” has become the paradigm of government feared by the public. Every day a poster of an enormous face with the slogan “BIG BROTHER IS WATCHING YOU” greets the story’s protagonist. He trudges to his apartment where an obligatory “telescreen” continuously spouts propaganda, and through which the Thought Police monitor the actions of the citizenry. Although the technology has changed, the model of an all-knowing all-watching government has not. From chasing Will Smith to assisting James Bond, today’s Big Brother employs real-time satellite feeds that remotely read body temperature and triangulate on which floor of a building the hero is hiding. Interestingly, this accurately portrays some of the technological capabilities that a government could employ to monitor certain individuals. However, affirming the pop culture vision of Big Brother is not the goal of this article. In fact, the opposite is true.

At least in the United States, Orwell’s vision of a monolithic state has always been constrained by Articles I – III segregating power between the branches of government and the Fifth Amendment placing procedural safeguards between the state and the citizenry. Conceptually though, it is not clear that even without these legal protections, any state could achieve the opaque, paternalistic monitoring this vision fears. The technology that provides the state with the power to watch—computer networking, satellite imaging, and mass communication—is the same technology that allows governments to be watched by its own citizens (or at minimum the citizens of other nations). The Big Brother paradigm is fundamentally flawed because it assumes the state can eliminate transparency, or at least keep all of its secrets. The purpose of this article is to examine the rise of Little Brother—or to be precise, Little Brothers—and the implications therein.

This discussion will be limited to remote sensing technology (i.e. satellite imaging). The author hopes to use this technology as a vehicle to draw out some of the more interesting flaws in the Big Brother paradigm, and show how the information free market—rightly or wrongly—allows each the citizen to keep a watchful eye on government activity. Because this article is meant to be academic—analyzing the legal framework and implications of geospatial technology—and not an attempt at dystopian fiction, the analysis will refrain from wildly creative ‘what ifs.’ Instead, the article will examine the rights, duties, and limitations between the U.S. government, its commercial sector, and its citizenry to record, access, and distribute this type of data using real examples. Given the historical roots and current ties of the applicable U.S. legal structure to international laws of space and the laws of war, this discussion will take into account certain global rights and duties as well.

Part I will provide background for the state of geospatial technology and will provide some of the high profile examples of its use by the public. Part II will examine the international and domestic legal framework through which the nations and the private sector operate satellites used in remote sensing. Parts III and IV will examine the policing powers the United States can exercise to prevent or limit the dissemination of sensitive information. Part III will discuss the First Amendment rights individuals have to broadcast potentially compromising data and the limitations the U.S. government can place on those individuals. Part IV will apply the laws of treason and espionage to public use of this technology and examine whether under the same or similar facts to some of the high profile examples, how and whether the U.S. government could hinder or criminally prosecute the actions of Little Brother. Each Part will consider some subset of the rights and duties of three groups: the U.S. government, the private companies who gather and supply the data, and the individuals or groups that use or publish this data.