An amusing note from the technological front. If you drive anywhere in the Eastern United States, you’ve probably heard of the E-Z Pass, SmartTag, or similar electronic toll collection systems. For those of you who haven’t, they use remote-sized devices, generally mounted inside a vehicle’s windshield behind the rearview mirror, to communicate with antennas at toll plazas, automatically deducting money from the tagholder’s prepaid account.

These time-saving devices have been eagerly embraced by commuters up and down the Northeast corridor willing to trade a little privacy for convenience. I say “a little privacy,” you see, because every time an E-Z Pass car drives through a toll booth, it creates an electronic record. In Virginia, for example, the Virginia Department of Transportation (“VDOT”) records the date and time, toll location, amount paid, and customer account information every time a Smart Tag car, which is E-Z Pass compatible, passes through a toll booth.

For most people, the convenience gained and time saved are worth the loss in privacy. For others, not so much. Take criminals, for example. Of the 12 states in the Northeast and Midwest that take part in the E-Z Pass system, 11 expressly allow the production of toll records in criminal cases. These records have in turn proven useful in proceedings such as the murder case against Melanie McGuire, a New Jersey nurse convicted in April, 2007 of killing her husband and tossing his cut-up remains into the Chesapeake Bay in 2004. In that case, prosecutors were able to use toll records, together with surveillance photos, to reconstruct McGuire's movements and obtain a conviction.

The problem with using toll records in a criminal prosecution is two-fold. First, an electronic hit on the toll record database doesn't necessarily mean that the owner of the car passed through the toll booth at the time recorded. In the absence of corroborating photographic evidence, it's always possible that someone else was driving the car. This is compounded by the fact that many criminal cases focus on a single event, so that there is often only one relevant toll record available. Taken together, these factors suggest that toll record evidence, standing alone, will rarely be enough to meet the "beyond a reasonable doubt" standard needed for a criminal conviction.

Not so in civil cases, where the burden of proof is the significantly lower "preponderance of the evidence" standard. Electronic toll records have been a particularly rich source of evidence in divorce cases, where documentation of a wayward spouse's travels can be especially devastating.

I mean, just imagine putting toll records into evidence showing that a husband was crossing over the bridge to New Jersey every night he said he was working late in the city. Or records showing that a wife’s lover just happened to drive through the nearest exit on the Dulles Toll Road every day the husband was away on business. In the face of evidence like this, a spouse’s unsubstantiated denials will carry little, if any, weight. And even though many states no longer take adultery into account, at least officially, when determining the financial arrangements in a divorce, the presiding judge or chancellor can’t help but keep a spouse’s infidelities in mind when exercising his discretion over a case.


But while it may seem justified, even humorous, for a criminal or an unfaithful spouse to be tripped up unwittingly by their toll records, the impact of similar electronic evidence on other areas of our lives isn’t nearly so limited. The Washington Post recently ran an article following the electronic trail of a single person during a single day. This woman, Kitty Bernard, may have been hypothetical or not, I don’t know. Truth is, it doesn’t really matter. The description of technology’s encroachment on even the most mundane aspects of this woman’s daily life, as summarized below, was frightening, regardless.

  • 7:15 a.m. Kitty starts her day by checking her e-mails, reading some, deleting others without even opening them. No matter. The U.S. government has taken the position that it can open all her e-mails if it needs to, whether opened or not. Apparently, the technology currently exists to allow it to do just that.

  • 8:30 a.m. She takes a cell phone call from her daughter, hanging up after talking for a few minutes. As long as the cell phone is turned on, though, it will continue to broadcast Kitty’s approximate location to her phone company, providing sufficient information to for law enforcement agencies to track her, if need be.

  • 9:30 a.m. Kitty pulls into the neighborhood Exxon station on the way to work, paying at the pump with her Speedpass. This little device uses radio frequency identification (RFID) waves to convey the information needed for the sale. No card, no swipe, no fuss. Of course, this technology has also been used more in more invasive ways, such as chips some people have had injected into their bodies to convey pertinent medical or financial information to appropriate recipients. This, of course, begs the question of who is an “appropriate” recipient.

  • 10:25 a.m. At work, Kitty logs on to a Web-based client-tracking software package used by her real estate agency. The trend towards Web-based computing means that more personal client information is now stored on servers owned by private companies, where the data is not only more accessible by the government, but is also more vulnerable to potential hackers.

  • 12:30 p.m. She gets back in her car, a 2003 Mercedes Benz with GPS navigation and roadside emergency assistance. Turning the ignition, she activates the GPS system, which pinpoints her location via satellite on a continual basis. The GPS system can generate a record of her travels, which some telemetry firms maintain for billing and other purposes.

  • 4:15 p.m. She visits Belmont Country Club, a planned community in Northern Virginia, to meet a prospective client. She uses an e-key to enter the gated community, and her date, time, name, phone number, and company name are all recorded and kept by GE Security, which maintains the information on a web site to allow real estate professionals to track market activity.

  • 6:00 p.m. After the showing, Kitty drives back to her office, dialing VIP Desk of Alexandria, a concierge service, on the way to make dinner reservations. VIP Desk keeps records on millions of customers, and can customize the personal data it keeps, including credit card information, for its corporate clients.

  • 9:00 p.m. After dinner, Kitty does a Google search at home to find a coffee maker she saw at the mall earlier that evening. Google collects billions of search queries a month, creating one of the largest databases in the world. While Google claims that such information is used only on an aggregate level, and then only for research purposes, I've only got one thing to say about that: China.

Now I don't know about you, but this list scares the hell out of me. In going through what, for many, is an ordinary day, Kitty Bernard repeatedly confronted situations in which the government or other entities had at least the potential to intrude on her life. The truly insidious part is that these intrusions came at Kitty, as they do to the rest of us, under the surface. Because they don’t draw attention to themselves, they’re easy to ignore.

It’s at times like this that the words “off the grid” start looking really good to me.


So why do we let it happen? Why do we buy a car with a GPS system, knowing it can be tracked, or use our e-mails, knowing that they can be opened and read without our consent? Part of it is convenience, to be sure. We like to know where we’re going without asking for directions. We also do it because we’ve convinced ourselves that we need these conveniences to get by. I mean, nobody can live in today’s world without e-mail, right?

So we cut a deal, trading a little of our privacy, a little of our control, for the convenience we’ve come to expect from modern living. When low-income people make a similar bargain -– buying a refrigerator from a rent-to-own place at exorbitant rates, for example -– society condemns it as short-sighted and misinformed. But those with better educations and better jobs do the same thing all the time. Worse, even, because they’re not even sure exactly what they’re trading away in the name of convenience.

I guess deep down we’re pretty much the same, after all.

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