Undercover Work: A Necessary Evil?
Boston Globe, Nov. 26, 1988

By Ross Gelbspan
Globe Staff

Twenty-five years ago, when he was active in the Congress of Racial Equality, Gary Marx suffered a shock that would exert a profound impact on his professional and intellectual development.

The treasurer of the Berkeley, Calif. chapter of CORE, to which Marx belonged, disappeared with the proceeds of a major fund-raising event.

The woman later proved to be an undercover police agent who had infiltrated and disrupted the group.

The revelation dashed Marx's belief in the police as "archetypical Boy Scouts" and helped propel him into a career as one of the country's most respected scholars of criminal justice, surveillance and privacy issues.

Earlier this year, Marx, a sociology professor at the Massachusetts Institute of Technology, completed his most ambitious work to date... an examination of the dramatic growth of undercover police surveillance in the United States.

But the results of the research by Marx, the sociologist, surprised Marx, the moralist.

"In starting the book, I viewed undercover tactics as an unnecessary evil. But in the course of the research, I concluded, however reluctantly, that they are a necessary evil," Marx wrote in his recently published book, "Undercover: Police Surveillance in America."

Morass of Ambiguities

Along the way, Marx discovered a morass of moral, social and legal ambiguities involved in the use of undercover operations that raise questions, not only about the effectiveness of specific law enforcement operations, but about the country standards of privacy and trust.

"Secret police behavior and surveillance go to the heart of the kind of society we are or might become." Marx wrote in his preface to the book. "By studying the changes in covert tactics, a window on something much broader can be gained."

The most obvious change is the tremendous growth of covert and undercover operations by local and federal law enforcement agencies during the last decade: in 1977, for example, the FBI appropriated $1 million for 53 undercover operations. Seven years later, the bureau alone spent more than $12 million for nearly 400 such operations.

A major impetus for the increase in undercover operations, according to Marx, is the growth of white-collar crime and the need for law enforcement agencies to become more aggressive in anticipating, rather than just reacting to, crime.

"Undercover work grows easily out of an emphasis on planning, prevention and productivity. It offers a means of actively pursuing crime through direct involvement and police initiative. It fits with the notion of the modern police officer prevailing via intelligence, skill and finesse, rather than brute force and coercion," Marx wrote.

Fundamental Questions Raised

But in analyzing hundreds of undercover operations, ranging from the infamous ABSCAM sting operations of the late 1970s to Operation Falcon, an undercover maneuver run the US Fish and Wildlife Service in the mid-1980s, Marx found that some of the operations raised — but did not answer — some fundamental questions. Some examples:

What about enticing an innocent person into committing a crime in order to procure an arrest?

What about the pain and humiliation inflicted on someone with whom an undercover agent has cultivated an intimate relationship without revealing his true identity?

What about a situation—especially common to undercover operations — in which the police have no specific suspect but target a group of people in order to snag lawbreakers?

What bout the violation of an individual's right to privacy by the gathering of personal information about innocent people in the course of an undercover investigation?

What about the ethics of police agents posing as priests, doctors or journalists?

What about an undercover agent who becomes so completely immersed in his cover that he loses his own identity and can not reenter normal life without profound emotional upheaval?

When Marx examines the questions from the point of view of law enforcement administration, an entirely different set of questions and paradoxes emerges.

While critics may demand elaborate guidelines of conduct and tight controls on undercover agents, Marx points out that "the higher the level of supervision, the poorer the quality of information, and the greater the time required for decisions."

Additionally, he notes, the more extensive the controls, the greater the likelihood of leaks that can compromise an operation... and destroy an informer.

Moreover, Marx found, the more deeply an informant is involved in crime, the more useful he is. But that may make him more difficult to control.

The morass of contradictions and paradoxes unearthed by his research led Marx neither to a blanket denunciation of undercover operations nor to an unqualified endorsement.

"I think the alarmists who say 1984 is already here are overstating the situation." Marx said, "At the same time, I can't accept the cheerleaders who say that any tactic that reduces crime is acceptable.

"The central reality is more complex than extremists at either end will allow." His work is an effort to unravel that complexity.

Most pressing to Marx is the debate over such issues as the relationship between the individual and the state, or the viability of our 19th-century notion of privacy and the realities of 20th-century life, should be decided by the public and not by a small group of policy makers inside the law enforcement community.

A Loss of Privacy

Americans have already submitted to a loss of privacy and an increase in surveillance with barely a discussion of how and why it has taken place.

In a chapter on "The New Surveillance," Marx notes that government agencies may now monitor the most personal habits of individuals through massive computer data bases.

"People under 25," he said, "assume that metal detectors and closed-circuit video cameras have always been standard equipment in airports."

A range of space-age devices, from computer-enhanced satellite photography to"starlight scope" light amplifiers, computerized telephone registers, and sensors are activated by sound, heat or motion has laid the groundwork, Marx asserts, for a "maximum-security society".

In this context, Marx views the increase in undercover operations as not juste another device in the ongoing battle between cops and robbers, but as a significant strand of the new surveillance.

"In a democratic society, cover police tactics, along with may of the other surveillance techniques, offer us a queasy ethical and moral paradox," he notes, "The choice between anarchy and repression is not a happy one, wherever the balance is struck."

In some cases, the use of undercover operations is the "least bad" alternative available. "Used with great care, they may be a necessary evil. The challenge is to prevent them from becoming an intolerable one."

Privacy Pirates
A Professor Warns Of Threats Posed By Sophisticated Technologies

by Peter Caughey
In Summit Magazine, Winter 1993

As a mockery of growing efforts to invade workers' privacy, sociology Professor Gary T. Marx once wrote an article for the Los Angeles Times on a company's attempt to limit the time its employees spent in the bathroom.

The fictitious memo described a firm that had equipped its restrooms with warning buzzers, timed toilet-paper retractors and automatic stall doors tht opened if someone took too long. He wrote it to highlight what he viewed as a disturbing trend in American society.

But a lot of readers thought the exaggeration was real.

"I was asked where the company was and some companies even wrote and asked where they could purchase the monitoring system." He recalls. He also learned that some European countries did have self-operating bathroom stall doors and that Japan offered a toiled that automatically analyzes urine for drugs.

To Marx, the reaction to the Times article illustrates just how accustomed people have grown to the increasing reach of surveillance technology. For more than a decade he has explored how covert operations and new information-gathering techniques are affecting society, and has helped shape an international debate in the process.

Powerful technologies can now collect more information about citizens' personal lives than at any time in history and are altering fundamental assumptions about privacy, individual liberty and the nature of social organization and interaction, Marx says. He wonders if the United States is headed toward becoming a "maximum security society," prisonlike in its pervasive lack of privacy and atmosphere of mistrust.

After all, he writes, people born after 1960 have been brought up "in an age of police stings, computerized dossiers, X-rayed luggage at airports, video cameras in banks, lie-detector tests for employment, urinalysis tests for drugs, tool-free hotlines for reporting misdeeds and suspicions, and electronic markers on consumer goods, like library books and even people.

"To them, these conditions represent the normal order of things. Their elders, too, are often unaware of the extent to which surveillance has become embedded in everyday relationships.

He wonders when the growing invasion of privacy will become uncomfortable enough for people to react. Like the story of the frog in a slowly warming pan of water who doesn't notice when it gets too hot, the gradually increasing invasion of privacy may become widespread before people sit up and take notice.

Massive personal data collection is a booming industry, Marx says. Not only are more types of personal information gathered, but it is done in a way that is increasingly invisible, involuntary and efficiently distributed, often without the subject's knowledge.

Lasers aimed at window panes can record conversations by picking up sound vibrations. Satellites monitor location and capture images from thousands of miles away through darkness and fog. DNA testing probes beneath the skin. And the Clinton administration last year proposed adding a computer chip to telephones to enable them to be tapped by law enforcement agencies despite encoding advances.

"The new surveillance is justified by positive social goals —the need to combat crime and terrorism, to protect health or to improve productivity," Marx says."Extensions occur gradually, it is easy to miss the magnitude of the change and the broader issues it raises. Our notions of privacy, liberty and the rights of the individual are quietly shifting, with little public awareness or legislative attention."

Marx is not anti-technology, nor does he believe the right to privacy is absolute. He spent 25 years at Harvard and the Massachusetts Institute of Technology as a professor specializing in criminal justice before coming to Boulder in 1992 to chair the sociology department.

He firmly believes society should protect privacy unless there is a compelling need to invade it, and then should do so only under conditions that are clearly spelled out. In his view, technology is racing ahead of the efforts of politicians, the courts, internal company policies and even informal social "manners" to delineate boundaries of acceptable behavior. "Where there is a way, there is often a will,". He warns.

He traces his interest in covert activity to the early 1960s when he as a graduate student at Berkeley. As an active member of the Congress of Racial Equality, a group working for integration through non-violence, Marx was stunned when the treasurer disappeared with the group's funds and turned out to be a police informant.

It was a bitter experience for Marx, who previously had idealized police as a Boy Scout in a troop sponsored by the Los Angeles Police Department. It helped fuel his interest in writing a prize-winning 1988 book, Undercover: Police Surveillance in America, in which Marx, to his surprise, found undercover operations under certain conditions to be "a necessary evil."

In the United States, citizens have relatively good protections from the government or "Big Brother", Marx believes. But private employers face far fewer restrictions.

More than 10 million U.S. employees are subject to computer monitoring at work, including counting the number of keystrokes they make, errors and time spent away from the machine, he says. A computer magazine, Macworld, found that 21 percent of 301 companies it surveyed had perused employee computer files, electronic mail or telephone voice mail messages to detect theft or measure performance. And a Boston hotel was sued after it videotaped two employees changing clothes in a locker room in an effort to catch a drug dealer.

Fortune magazine last fall concluded that "Companies are intruding more deeply into the lives of employees, and even though corporate intentions may be benign, the risk of a backlash is growing. Worker anxiety is likely to rise right along with the surveillance level, possibly hurting performance."

If the new forms of monitoring workers result in increased productivity and accountability, as their advocates claim, then the benefits from monitoring managers and upper-level executives should be even larger, Marx believes. Inadequate performance by management results in even greater harm to the company.

"If one wanted to design a system for hurting American business and industry, he or she would be hard pressed to do better than to argue for some of the worst examples of unrestricted electronic monitoring with their documented negative impact on productivity, costs, employee health and consumer service," he writes.

"The mere fact that a technology makes it possible to do something (such as secretly monitor) does not mean that it is the right thing to do. One of the unrecognized positive aspects of having a supervisor walk behind and monitor a person is that it introduced a degree of accountability to the watcher as well as the watched. With unseen and secret monitoring, some of the latter is lost. The workplace becomes even more unequal."

Individual privacy is important and should be protected. Marx argues. A major piece of unfinished national business is the greater extension of the Bill of Rights into the private sector, he believes. And he has worked to bring the findings of his research into the public realm by writing opinion columns for newspapers, appearing on television and working with government agencies and public interest groups.

As a sociologist, one of his interests is what the increasing reach of surveillance technology is doing to the concept of self. While entrepreneurs and marketers tout the benefits of technology, writers, cartoonists and musicians not uncommonly highlight negative effects, he notes.

"The popular book and movie, "The Firm," portrayed a law firm that secretly monitored its employees' conversations and movements at work and at home. A hit song about surveillance, "Every Breath You Take," was released in 1983 by The Police, a rock group. Marx's own 1987 article on the fictitious bathroom policy has popped up around the country as office humor for seven years.

The experience of being secretly watched can harm people by depriving them of a sense of freedom and creating instead a sense of invasion, he says. It can make people less willing to express political beliefs and could, under a repressive government, be used against opposing political beliefs or minority groups.

"A thread running through all totalitarian systems is lack of respect for the individual's right to control information about the self," he writes.

Individual identity has a lot to do with being in control of information about ourselves, he says. Privacy gives people space to maneuver. Confidentiality is essential to doctor-patient and lawyer-client relationships. And the ability to "start over" in a new location has long been a cherished advantage of American life.

But a gap exists between the self presented to the outside world and the inner self, Marx says. Everyone, even the president, needs time out of the spotlight and away from scrutiny.

"An important reason that we have envelopes around first-class letters or door on rooms is not to protect the guilty," he writes. "It is because control over personal information is important to our concept of human dignity."

But the ethos in effect now is that if you don't know it's being done, they don't need to ask permission, he says. Marx believes that under most circumstances going through someone's personal computer files ought to be considered as unacceptable as opening someone's else's mail.

As society wrestles with how to balance the need for privacy with competing concerns. Marx has some suggestions. For starters, he advises that people be more active in protecting themselves by not giving out information that is not required. Don't fill out the requests for personal information on warranty cards, he advises and don't give out your address or telephone number when making credit card purchases. Be aware that you are legally required to supply your social security number only for a limited number of purposes.

Two key questions he urges people to think about are: Is it appropriate to collect this information in the first place; and what happens to it after it is collected?

People who call 800 numbers may be placed on lists that later are sold to organizations without their knowledge. Laws are needed to prohibit such secondary sales of information without permission, he says, noting that the United States hags behind European countries in this area.

Employees should be involved in decisions regarding work-related technology as well a policies on privacy, he says. Technologies can and should be developed to protect privacy, such as cordless phones that do not allow conversations to be easily intercepted. And he suggests that social "manners" or informal principles be adopted, including:

No listening, viewing or recording of communications without all parties' consent.

Fair warning that devices such as caller-ID or speakerphones are in use before communication begins.

An equity principle guaranteeing a minimum threshold of privacy, regardless of what technology is capable of doing.

Consistency so that broad ideals, rather than the specific characteristics of a technology, determine privacy protection

Redress so that people subject to unwarranted privacy invasions can discover violations and receive compensation for them.

"Privacy is a value that may be appreciated only once it is lost," writes Marx, who currently is working on a book, Windows Into the Soul: Surveillance and Society in an Age of High Technology. "We risk becoming an even more stratified society based on unequal access to information in which individuals live in glass houses, while the external walls of large organizations are one-way mirrors."

Marx recalls that one of his most vivid childhood memories was seeing the film "The Wizard of Oz." He was terrified by the powers of the unseen Wizard. But at the end of the movie, as people will remember, a dog pulls a curtain aside to reveal that the Wizard is only a man.

"If the United States is to remain a decent and productive society in which technology is put in the service of its citizens, we must pay attention to the men and women behind the electronic curtain, not only those in front of it," he urges.

Expert: Protect yourself
Privacy floats free in cyberspace

By Maureen Harrington
Denver Post, September 11, 1995

Professor Gary Marx is a voice of reason preaching caution and vigilance on the road to the future.

A sociologist, Marx offers rational commentary in the midst of a silly season that saw the Windows 95 marketing lollapalooza, Time magazine's Orwellian hissy fit on cyberporn, and the increasing angst of middle Americans as techno-mania encroaches on our lives. An internationally recognized expert on surveillance and privacy in cyberspace, Marx is chairman of the sociology department at the University of Colorado and one of the founders of a communications initiative at CU designed in part to look at the problems of technology.

Marx is the scout sent ahead to discover what lies beyond our borders.

He has developed ideas about what individuals and groups might do to protect themselves from the dangers of eroding privacy. Or, as he would say, "speculate" about it - because hard data about a world that is transmuting itself nano-second by nano-second isn't available.

Marx, who published the seminal book on surveillance, Undercover, in 1988, applied his academic research in police "watching" to the ever-increasing "information-gathering powers of the state and private organizations."

Having studied privacy and its violators for more than a decade, Marx, a Ph.D. from Berkeley, acknowledges the powers of technology but is wary of its applications.

"I come neither to torch technology nor to become a torch singer for its wonders," says Marx.

"One need not rigidly accept Frankensteinian visions, nor become a machine-breaking Luddite to appreciate the importance of approaching the future with the caution of a flashing yellow, rather than a green light," he says.

The possibility that privacy may be less protected as technology advances, its value eroding without our taking much notice, is a dominant theme of Marx's work.

Marx isn't the only one pointing to the growing powers of data-gathering firms that use increasingly sophisticated and intrusive methods of collecting information. The telemarketing industry is growing about 30 percent every year, Marx said. The breadth of the information it gathers is astounding - Social Security numbers, bank information, consumer habits, marital status, phone numbers and addresses.

The same technology that enables workers to free themselves of the office - to work at home while raising children, for instance - could change conventional telephone tapping.

"With a modem, a knowledgeable individual could remotely reprogram a line so that all calls are simultaneously (and silently) rerouted to a third line and recorded," Marx said.

Reporters and felons no longer have to leave the office to obtain personal information. Public information can be easily accessed through computer data bases.

"Work monitoring has been taken to new heights or depths, depending on your point of view," Marx said. "Quantity of keystroke activity, number of errors and corrections, speed of work and time away from the computer can be measured."

And the capabilities of a police state grow each day.

An FBI advisory board recently recommended putting the names of those suspected, but not arrested, of crimes into a nationally accessible computer data base. Friends and associates of known criminals could be in that computer as well. So far, the FBI has rejected the proposal, but Marx said that the pressure to create such national data bases is strong and growing.

Dependence on technology - the assumption that we are safe - also can have disastrous, unintended effects, Marx said.

In Los Angeles, a woman depending on police technology was killed by her estranged husband.

The man shot and killed the woman, who had not reported his threats to police. She assumed that she was safe because he was wearing a monitoring bracelet.

Marx suggests that one reason for the increase in carjackings is that it has become so hard for thieves to break into and hot-wire cars with security systems.

"Making it harder to break into cars causes a change in tactics," he said. "A frustrated thief may firebomb a car on the street when he can't get in to get the radio. The radio is not taken, but the car is destroyed."

A social scientist who advises policymakers, Marx does have some suggestions for individuals to protect themselves from intrusion. He suggests that people be wary of giving out even the most innocuous information - telephone numbers, address, ages, Social Security numbers - unless the rationale is clear.

"Understand that every bit of that stuff goes into data bases, and you may not be happy to find your privacy has been invaded, that a marketing research company has all this stuff," Marx said.

It has been more than a decade since there was a national commission to considerprivacy issues. Marx suggests that another be established. Items on the agenda should include computer networks and the gathering and selling of data without individual knowledge or consent.

As a sociologist, Marx looks at the cultural climate, and he has pointed to a number of "techno-fallacies" that may fuel future technological travesty:

• The fallacy of assuming that only the guilty have to fear the development of intrusive technology. "It's not true that if you've done nothing wrong, you have nothing to hide. The reason that we have envelopes around letters, is not because it is illegal or immoral. Our sense of self and friendship are determined by control of personal information. The sharing of information is intimate."

• The legalistic fallacy of assuming that the only criterion that ought to guide the use of technology is whether the law permits it. "We must begin with the law as a guide, but not stop with it. Just because you have the right to do something, doesn't mean that you should (do it). Selling of mass marketing information has been justified by the First Amendment. Your bank records have very modest federal protection. Your bank can legally show your records to law enforcement, but many won't do it."

• The fallacy of assuming that pragmatism and efficiency should automatically overrule other values such as fairness or equity. "If you just have efficiency, you might have a society that was unkind, without compassion or fairness."

• The fallacy of assuming that personal information on customers or clients possessed by a company can be bought and sold with impunity. "Information can hurt individuals. Subscribers to certain magazines could be marked by either those who want to sell something to them or would use their interests to hurt them."

• The fallacy of perfect containment - that technology always will remain the solution rather than become the problem. "Today's solutions can become tomorrow's problems,"Marx says. "It's interesting that we thought that the car would be an anti-pollution device. The cure-all for the horse manure all over the cities that was causing health problems."