While in some respects, the sheer proliferation of information and data means no one particular entity can control it, current applications of technological monitoring are allowing governments to compile extensive “databodies” of individuals. Whether criminal or not, anything from a fingerprint to an intercepted e-mail can be tracked, and more and more of what we say and do is recorded. The global trend, in terms of personal data, is toward total monitoring.

Exponential advances in the capacity to sift information have dramatically altered who and what is monitored, and who and what monitors us, on a global scale. Far from the three separate kinds of surveillance—physical, psychological and data—described by Alan Westin in his seminal Privacy and Freedom (1967), today’s surveillance—aided by electronic and computer technologies—aims to achieve a fused web of total control. Today, physical surveillance is digital data, and psychological control, an off-shoot of technological capability.

Michel Foucault, Louis Althusser, and others like them, have documented how, historically, mechanisms of power (the state, employers, etc.), interpellate private citizens as “good” or “bad” subjects. Today’s Ideological State Apparatus (ISA) and Repressive State Apparatus (RSA)¹ are ITAs and RTAs—Ideological Technological Apparati and Repressive Technological Apparati. The rapacious recording of information enabled by large-scale data trawling technologies makes personal surveillance, in many cases, a default mechanism of so-called “legitimate” monitoring by governments and corporations. These new networked technologies, in addition to older, more traditional forms of available and authorized data scrutiny, make bodies go cold under all-pervasive dataveillance.²

Any number of current technologies show the tendency toward rapid, total control. ECHELON, the US National Security Agency’s global communications monitoring system, currently has the capability of intercepting and processing millions of private communications.³ And Carnivore, the FBI-favored electronic eavesdropping apparatus, is capable of collecting private information under the guise of protecting Americans.⁴ Face recognition systems—similar to the one used at the 2000 Super Bowl—are now capable of making more than 1 million comparisons per second, based on algorithmic identity recognition and are being implemented in a number of contexts.⁵ The US government’s national Automated Fingerprint Identification System makes rapid queries on fingerprints—up to 1000 matches a day—drawn from its centralized print database and, CODIS (the Combined DNA Index System) operated by the FBI, has the same in view for DNA data. While ostensibly, these surveillance applications are focused on criminals, the broad interpretation of “suspects” can lead to an erosion of civil liberties.

Whereas, at least in the US, the government is bounded by certain constitutional privacy protections, many private companies can and do extensively monitor their employees—both their persons and their body fluids. Eighty-one percent of large companies now require some form of drug testing as a condition of employment.⁶ And, it is estimated that the United States spends $1 billion annually to drug test about 20 million workers.⁷ In a 1999 report, the American Management Association boasts that two-thirds of major American companies monitored their personnel via video, voice-mail and e-mail messages. And, the Privacy Foundation in Denver, Colorado estimates that worldwide, the number of employees under Internet or e-mail surveillance is 27 million (7/09/01).

Banking of our personal information is no news to privacy advocates and activists.⁸ All of these applications, in addition to the widely acknowledged and oft-lamented accumulation of consumer record keeping and sharing of remote info-banks, means greater vulnerability of our private, personal information. In other words, with each passing day, government and private companies compile and construct an amazingly thorough “databody” of each of us.

After the Human Genome Project to “map” human DNA, we now have the “Human Brain Project,” (HBP) an internationally orchestrated research project which hopes to—among other things—provide a blueprint on “normal” brain activity.⁹ Aside from assumptions implicit in deciding what constitutes a normal brain, the HBP does offer potential benefits for understanding brain functions, and will undoubtedly alleviate some people’s suffering as this understanding percolates into healthcare praxis. The HBP’s intention to “map” cognition, however, points to the trend whereby the possibility for autonomous, unrestricted thought may become threatened by its own simulations.

An “eigenface” is a composite face made up of generic, algorithmic features used to make identity comparisons in face-recognition surveillance technologies. An eigenface is a mathematical average—a face map of pixels. “Eigen,” from the German word for “own” or “individual” seems cruelly ironic in this usage, as the purpose of any given set of eigenfaces is to categorize people according to a limited set of facial characteristics. Alexander Pentland, an MIT “perceptual computing” researcher says that:

Since no two people on this planet of more than 4 billion [sic] look exactly alike, you might think that there must be millions of ways in which faces differ from one another…actually [faces] vary according to a mere 100 factors…each face is a unique mixture, but it’s a mixture of only 100 things, at most.¹⁰

In fact, most face recognition “hits” are described by a mere 20 factors. Identifying someone based on a discrete mathematical set of facial characteristics relies on assumptions about features that tend to occur in tandem—in other words, if a person has one of these characteristics, he or she has them all.

What will an “eigen-brain” be like? Face recognition software relies on massive “facebases” of actual face photos that are then “normalized” and “averaged” to extract a set of eigenfaces that serve as pixel maps for face-matching “hits.” UCLA’s Brain Mapping Center—a first phase of the Human Brain Project—relies on a similar strategy—construct a massive database of individual brain features and functions, then “normalize” and categorize. John Mazziotta, director of the Center explains the initial project:

Even while Mazziotta describes his part of the HBP in the neutrally inflected terms of a meteorologist or statician, this kind of knowledge has often been used to fuel better exploitation of a given environment.

Maps are powerful socio-spatial organizers and potentially menacing control mechanisms. The ostensible and non-paranoid purpose of a map is to guide or navigate, but repeatedly throughout history and continuing today, territorial maps have been used to facilitate better control, easier conquest of a given place/people.¹² And, while the idea of a mapped brain may seem ludicrous given our brains’ operative complexity and our limited understanding of how the brain works, the fact that a world-wide team of HBP scientists and specialists are, or shortly will be, working to track and record composite patterns of thought is indicative of the trend towards brain monitoring. If guidelines and patterns can, as proponents of the HBP hope, be overlain to “map” typical brain features and attendant thought functions, these guidelines could mean less cognitive liberty and more mental street signs, more data-mind surveillance.

Developments in brainwave measurement have led to several new applications based on the monitoring of brainwaves. One such application, which the inventor says can evaluate whether or not a particular person has a memory of a particular event, is called brain fingerprinting. Brain fingerprinting is a computer-based memory testing technique developed and patented by Dr. Larry Farwell. Farwell’s technique is based on measurements of electronic impulses in the brain, or MERMER (Memory and Encoding Related Multifaceted Electroencephalographic Response). Ostensibly, brain fingerprinting’s primary application will be in criminal investigations. So far, according to Farwell, 120 brain fingerprint tests that have been administered, including tests on FBI agents, tests for a US intelligence agency and for the US Navy, and tests including actual crimes. But, so far, brain fingerprinting has only been admitted in a single court case.¹³

Farwell uses an interactive computer-based test that employs visual stimuli and EEG monitoring to detect whether or not the person being tested has a memory of particular words or pictures. To do this, the person is wired to an EEG and watches various pictures displayed on a monitor. When the person recognizes something as significant, the brain emits a specific, measurable response. If, for example, a record of a crime is stored in the subject's brain, says Farwell, this response will appear when the subject sees items from the crime scene displayed on the monitor.

While brain fingerprinting is still in its infancy, the potential for exploitation in a number of governmental and civil contexts makes this new technology of important consequence for anyone concerned with the protection of personal, autonomous thought.

Fingerprinting: Then and Now

The first prosecution based on fingerprint evidence took place in London in 1905 giving birth to what is now the most frequently used form of forensic identification. Furthermore, fingerprints are routinely taken by US police every time an adult is arrested, for any crime. Once the fingerprints are taken, many of these prints are kept on file, forever, in the $640 million dollar, centralized, Automated Fingerprint Identification System (IAFIS) maintained and monitored by the FBI.¹⁴ While this is a daunting aspect of criminal record keeping, it is well known that fingerprinting is no longer restricted to juridical contexts. Countless governmental agencies, corporations, banks etc., rely on fingerprinting for identification purposes. Wade D. Hobbs, Jr., Director of the Association to Stop Unconstitutional Fingerprinting, stresses that:

In recent years, several of the [US] states have implemented schemes that require a fingerprint for a driver's license…Similar schemes have also been established, such as those that require a fingerprint for a cab driver's license, for a professional license, for a gun license, for welfare benefits, for Medicaid, or for an immigration card. Some 40 million people at least have been fingerprinted under the driver's license schemes alone. The number is much higher if the other schemes are included.¹⁵

Similarly, since 1985, DNA profiling has become increasingly prevalent in forensic investigations and, since 1988, DNA samples have increasingly been admitted in criminal trials. Today, all 50 US states have DNA databanks. Canada and a number of other countries maintain similar DNA databases.¹⁶ According to the US government’s National Commission on the Future of DNA Evidence, an integrated tracking system for DNA samples, will, by the year 2005, allow the direct transmission of test data between laboratories based on a combined DNA indexing system (CODIS).¹⁷ On August 1^st, 2001, Attorney General John Ashcroft announced that states will receive federal funds—$30 million—to reduce the massive backlog in collected DNA samples in order to more quickly implement CODIS on a national scale.¹⁸ And, by 2010, writes the National Commission, miniaturized instrumentation and on-the-spot crime scene analysis, will be linked with remote DNA laboratories such that “rapid identification, and in particular, quick elimination of innocent suspects” based on DNA sampling, will be commonplace. ¹⁹

As with fingerprinting, DNA testing is also being applied in an increasing array of non-criminal contexts including: the identification of anonymous corpses where samples can be gathered from skeletal remains of missing persons and compared with samples from family members of the missing person (as with the recent deaths at the World Trade Center/Pentagon); the US military uses DNA profiles in place of traditional means of identification such as “dog tags,” and new recruits now routinely supply blood or saliva samples used to identify them if killed in action; medical scientists use DNA testing to determine the likelihood of family members inheriting genetically transmitted diseases; anthropological scientists do DNA testing to study evolution by examining ancient skeletal remains, and to learn about human migration patterns to determine where different races originated and diversified. And, DNA is commonly used to establish identity in paternity cases.²⁰ While these applications of DNA testing are benign, or not in themselves threatening, the increased visibility and use of DNA samples in an array of voluntary uses makes it more likely that expansive uses of DNA fingerprinting, and ultimately of brain fingerprinting, could go unchallenged.²¹

With brain fingerprinting, we face an erosion of privacy and autonomy to an even greater degree as the potential for monitoring thoughts—and conceivably compiling a “datamind” of them—becomes ever more possible. Consequently, the Orwellian concept of “thought criminals” has never been more real.

Farwell is correct, the brain is always “there” — but not always engaged in crime. While a voluntary use of brain fingerprinting poses little social threat, a compelled use of this technology violates the fundamental right to cognitive autonomy and mental privacy, transgressing a number of protected constitutional liberties.

In every US state, a person who is arrested is compelled to have his or her fingerprints taken and a percentage of these, depending on state laws, are redirected to the US national, centralized IAFIS data base.²⁶

Like traditional fingerprinting, DNA sampling is admissible in court, and in a growing number of states, DNA is taken from people arrested for certain crimes and added to the US national DNA (CODIS) data bank.²⁷

Unlike matching fingerprints, or even DNA sampling, the use of brain fingerprinting in criminal investigations crosses the line between collecting physical evidence and the amassing of more personally private data: the very thoughts of a suspected individual.

Despite its name, therefore, brain fingerprinting is more similar to a polygraph, or lie-detector test, than fingerprints because, like a lie-detector test, brain fingerprinting attempts to assess the mental operations of an individual. In fact, brain fingerprinting does so in a far more internally invasive way. Unlike a traditional polygraph, brain fingerprinting does not measure a physical response—breathing, blood pressure, pulse, sweat—as indicative of a mental state, but directly monitors brainwave activity. Furthermore, polygraph testing, sometimes called a “psycho-physiological detection of deception examination,”²⁸ is recognized (even by those who administer the test), to be more a measurement of interviewer intimidation than anything else: "You would be surprised how many people just confess...during interviews," says a professional polygrapher of 20 years, "the interview is just as important as the test itself."²⁹

Yet while the accuracy of polygraphs is hotly disputed, and polygraph results are generally inadmissible in court,³⁰ at least one judge has ruled to admit brain fingerprinting test results as evidence in an Iowa murder case.³¹

If Farwell is successful, brain fingerprinting, because of its carefully chosen name, and apparent advantages over the contested physical and psychological procedures of a polygraph test, has the potential of becoming the next phase in “fingerprinting,” with a growing number of prosecutors seeking to admit brain fingerprinting test results in court.

Brain fingerprinting could potentially become a threat to unwelcome organizations or unconventional activities. Brain fingerprinting inventor, Dr. Farwell, boasts in his work with FBI Supervisory Special Agents Drew Richardson and Sharon Smith, that he has successfully used brain fingerprinting to detect whether individuals (specifically FBI agents) belonged to a particular organization or not, and furthermore, whether or not tested individuals had participated in a “variety of specific, non-criminal activities.”³² Farwell asserts that his team of researchers was able to correctly identify a wide range of activities that individuals had (or had not) engaged in based on their brain responses.

This suggests daunting possibilities for selectively targeting “undesirable” groups in a wider social context. Just as personality tests, drug screening, and DNA fingerprinting have become more widely accepted in applications that go well beyond the scope of criminal investigations, the possibilities for brain fingerprinting in “routine” assessments make the invasion of cognitive liberty and autonomy issues of potential significance. What, for instance, would be the consequence of an individual’s affiliation with NORML, or the Green Party in routine, “non-invasive,” job-related brain fingerprinting screenings? Brain fingerprinting could, in the future, be used to target or exclude individuals who manifest unwanted, unorthodox, or “subversive” mental traits.

Minding our Minds

Already privacy advocates rail against the collection and storing of personal data, and defense attorneys lament the erosion of constitutional privacy protections. And, with advances in electronic communications and computer technologies, the possible invasions of privacy are skyrocketing. While current applications of brain fingerprinting are limited and voluntary, it is possible to foresee advances—both socially and technologically—that could facilitate governments and corporations in their surveillance of thought “crimes” via brainwave monitoring.

Fortunately, at least in the US, and at least as long as they last, a number of Constitutional guarantees present a barrier to violating the privacy of our thoughts. But preserving such protections will require ongoing vigilance. The historical progression of US legal statutes has moved away from protections of individual privacy (particularly in the War on Drugs), and so too, away from the ability to think private thoughts. When your brainwaves, and the thoughts they might reveal, become readily available for scrutiny, freedom of mind takes on a whole new meaning.

Notes

3. Jason Vest, “Listening In: The US-led ECHELON Spy Network is Eavesdropping on the Whole World,” The Village Voice (August 19, 1998); Online at: http://www.villagevoice.com/issues/9833/vest.php

4. The day after the World Trade Center/Pentagon events of 9.11.01, the US government pushed to have Carnivore installed with at least one major network service provider. See “Anti-Attack Feds Push Carnivore,” Wired News (September 12, 2001).

5. Read the FAQ on FaceIt® Technologies, online at: http://www.visionics.com/faceit/faqs/mem.html#one. See also: Declan McCullagh, “Call It Super Bowl Face Scan I,” Wired News (February 02, 2001); Viewable online at: http://www.wired.com/news/politics/0,1283,41571,00.html

6. Barbara Ehrenreich, “Warning: This Is a Rights-Free Workplace,” NYT Magazine (March 05, 2000). Online at: http://www.nytimes.com/library/magazine/home/20000305mag-workrights.html

7. Edward M. Shepard, and Thomas J. Clifton, “Drug Testing and Labor Productivity: Estimates Applying a Production Function Model,” Institute of Industrial Relations, Research Paper No. 18, (Syracuse, NY: 1998); Online at: http://www.drugwarfacts.org/drugtest.htm

8. For more on current issues of data privacy, see: The Electronic Frontier Foundation (http://www.eff.org); Privacy International (http://www.privacy.org/pi/ ); Electronic Privacy Information Center (http://www.epic.org); and the Privacy Foundation (http://www.privacyfoundation.org).

9. Human Brain Project, sponsored by the National Institute of Mental Health. Online at: http://www.nimh.nih.gov/neuroinformatics/index.cfm. For an informative article on the HBP, see Jennifer Kahn’s “Let’s Make Your Head Interactive,” Wired (9.08 August 2001) 106-115. Online at: http://www.wired.com/wired/archive/9.08/brain.html

10. Evan I. Schwartz, “A Face of One’s Own,” Discover Magazine (December 1995). Online at: http://www.discover.com/archive/index.html

11. Quoted in Jennifer Kahn’s “Let’s Make Your Head Interactive,” Wired (9.08 August 2001) 109. Online at: http://www.wired.com/wired/archive/9.08/brain.html

12. The US Government already engages in profiling based on where you live and how you move about. The federal Crime Mapping Research Center (established in 1997) is dedicated to developing computerized analytic geographic profiling for criminal investigations and psychological targeting based on geographic information systems (GIS). See Chapter 6, “Geographic Profiling: Crime Mapping Futures,” in Mapping Crime: Principle and Practice, National Criminal Justice Document No. NCJ 178919. Online at: http://www.ncjrs.org/html/nij/mapping/index.html

13. In a ruling on March 5, 2000, Pottawattamie County District Court Judge Tim O'Grady admitted Dr. Farwell's Brain fingerprinting test of Terry Harrington as evidence in the case. The judge subsequently ruled, however, that Harrington's attorneys had failed to prove that this and other evidence probably would have changed the outcome of his original trial. See: http:www.brainwavescience.com

14. The Integrated Automated Fingerprint Identification System (IAFIS) has been in operation since July 1999. During its first year, the system positively identified more than 5 million people, and each month, more than 8,000 criminals, arrested in jurisdictions different from their original booking locations, are uncovered by IAFIS. Since that time, approx. 600 identifications have been made involving cases that had previously been unsolved. IAFIS can handle 1,000 searches a day, and although designed to complete a fingerprint query in 24 hours, often does so within four to six hours. The FBI provides law enforcement agencies with communications equipment, encryption tools, and the proper software needed to utilize IAFIS. (www.sheriffs.org) Michael D. Kirkpatrick and James A., Loudermilk II, "Solving Cold Cases With Digital Fingerprints" Sheriff Vol. 53, No. 4 (August 2001) 14.

For the FBI’s disturbingly laudatory celebration of this new tracking system as well as other centralized identity data banks, see interview with Mark Tanner, the FBI’s information resources manager: “Interview: Bureau Focuses on Data Sharing,” Government Computer News (July 03, 2000); Viewable online at: http://www.gcn.com/vol19_no18/snapshot/2288-1.html

15. See: http://frontpage.tripod.com/whyfingerprint/

16. On Canada’s DNA bank, see: Joanna Kerr, “Building the Future of DNA Technology: RCMP's DNA Data Bank Sets a World Standard” Gazette (Vol. 62 Issue: 5/6, 2000) 21-28.

17. CODIS (Combined DNA Index System), is a national database and searching mechanism created by the FBI. CODIS is comprised of two file tracking systems: an offender file and a forensic file. The offender file contains a DNA profile for convicted offenders from state and local jurisdictions; the forensic file contains a DNA profile from crime scene evidence that has not been matched to any offender. Through CODIS, law enforcement and the FBI link unsolved cases nationally, and even internationally. CODIS is fast becoming the international standard for DNA comparisons; (Australia, Finland, Belgium, Canada, Denmark, England, Norway, Hong Kong, Italy, The Netherlands), and a number of other countries have already implemented, or have retained the US-gifted software for implementation. See: http://www.ojp.usdoj.gov/nij/dnasummit/trans-2.html

For more information on the scientific specifics of CODIS, see “The Future of Forensic DNA Testing: Predictions of the Research and Development Working Group” National Institute of Justice Report (November 2000). Online at: http://www.ojp.usdoj.gov/nij/pubs-sum/183697.htm

18. “Ashcroft Acts to Cut DNA-test Backlog,” Seattle Times (August 02, 2001). Online at: http://seattletimes.nwsource.com/html/nationworld/134325047_dnalabs02.html

19. “The Future of Forensic DNA Testing: Predications of the Research and Development Working Group,” National Institute of Justice Report (November 2000). Online at: http://www.ojp.usdoj.gov/nij/pubs-sum/183697.htm

20. Examples are taken from Martin O'Malley and John Bowman’s “Crime, Punishment & DNA,” Canadian Broadcast Corporation News Online (June 2001). Online at: http://cbc.ca/news/indepth/background/dna.html

21. The American Civil Liberties Union has an informative FAQ on DNA Sampling & Civil Rights Issues, online at: http://www.aclu-mass.org/privacy/dnaqna.html

22.See: www.brainwavescience.com/rainFingerprinting9901.htm

23. See: www.brainwavescience.comQandABrainFinger-printing001.htm

24. See footnote no. 13.

25. Brain fingerprinting is currently prohibitively expensive. While polygraphs are in the ballpark of $300-$400, and digital fingerprinting (once the technology is purchased) costs virtually nothing, brain fingerprinting costs begin at $350 per hour, “plus travel expenses.” Dr. Farwell estimates that a typical case might involve 15 to 30 hours of investigation and testing ($5,250-$7,000). http://www.brainwavescience.com/FAQLawEnforcement001.htm

26. On IAFIS, see footnote no. 14.

27. According to the National Archive of Criminal Justice Data, because of the novelty of CODIS, no comprehensive figures are yet available on the specific number of arrestees from whom DNA samples are taken and stored in the national data bank (August 28, 2001).

28. See, for example, “A Comparison of Psychophysiological Detection of Deception Accuracy Rates Obtained Using the Counterintelligence Scope Polygraph and the Test for Espionage and Sabotage Questions Formats,” Department of Defense Polygraph Institute Research Division, in Polygraph, Vol 26, No. 2, (1997); or, Tuvya T. Amsel Circleville’s “Fear of Consequences and Motivation as Influencing Factors on Psychophysiological Detection of Deception,” Polygraph, Vol 26, No. 4, (1997).

29. Douglas Mansfield quoted in Ralph Montaño’s “Lie Detector Tests Take Center Stage,” Sacramento Bee (July 23, 2001).

30. Unstipulated polygraphs are, in some cases, admissible in court. For the opinion in a recent 9^th Circuit ruling which overturned the per se rule excluding the admission of unstipulated polygraph evidence, see US v. Cordoba (9^th Circuit 1997) No. 95-50492; Online at: http://truth.boisestate.edu/polygraph/cordoba.html. This opinion contains a good summary of the important Court of Appeals' decisions on the use of polygraphs.

31. Patricia Wen, "Scientists Eyeing High-Tech Upgrade for Lie Detectors" Boston Globe (June 16 2001) (www.globe.com/boston).