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From: Sanford Sherizen <0003965782@MCIMAIL.COM>
Subject: Review of Gary Marx's UNDERCOVER
Date: Wed, 12 Jun 91 15:07 GMT

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***  CuD #3.21: File 3 of 7: Review of Gary Marx's UNDERCOVER    ***
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       Gary T. Marx, UNDERCOVER: POLICE SURVEILLANCE IN AMERICA
                    A Twentieth Century Fund Book
            Berkeley: University of California Press, 1988

Reviewed by Sanford Sherizen, President of Data Security Systems, Inc.,
             Natick, MA, MCI MAIL: SSHERIZEN  (396-5782)


On the western (non-electric) frontier of the U.S., disagreements on
property rights led to almost continuous battles between Native
Americans, farmers, cattle ranchers, sheep herders, and the
propertyless.  To a large degree, these battles were decided by the
invention of barbed wire.  Ownership was quite literally set by the
wire, which defined the property lines. They who had the wire had the
rights.  Livestock or crops could be kept in and trespassers or the
unwanted could be kept out.

For some, the current battle over electronic information property
rights is a search for the electronic equivalent of barbed wire.
Ownership of intellectual property, only in part a battle to control
that "stuff" called cyberspace, is becoming an almost continuous set
of encounters.  The participants differ from the western frontier days
but the stakes are as high for the future of this nation.

As LAN increasingly stands for *L*imitless *A*ccess *N*ationwide and
the Sun Devil and Steve Jackson cases take on new twists and turns,
there is a need for guidance on how to resolve essential questions of
electronic property.  As computer people discuss the law and BBS's are
filled with terms like attractive nuisance, it is clear that there is
a need to ask essential questions.  Can we have appropriate controls
over certain illegal/unethical/ inappropriate behavior and, at the
same time, establish accountability over the behaviors of the police
and other control agents?  How can we develop the rules of behavior,
using old laws, new technologies, and uncertain etiquette?

To help me answer these questions, I decided to reread Gary Marx's
book on undercover policing.  He had written one of the few analytical
books that cover the dilemmas of covert policing in a democratic
society.  His perspective on the issue is quite clear.  In starting
his research for this book, Marx viewed undercover police tactics as
an *unnecessary* evil.  In the course of his research, he reached the
conclusion, however reluctantly, that in the United States these
tactics are a *necessary* evil. As he explores the troubling issues of
covert policing in great detail, he documents the problems and
pitfalls rather than singing its praises.  He also point out that it
is sometimes difficult to separate the heroes from the villains. This
is a book for the Information Age that I highly recommend.

One of the strengths of the book, and of sociologist Gary Marx's more
general work found in his many public speeches, articles, and research
reports, is the broadness of his analysis.  While focusing on
undercover policing, he discusses a much broader set of insights on
the delicate and often difficult decisions that have to be made to
establish a society that is based on law as well as on order.  He
makes clear that easy answers ("unhandcuff the police", "All
information is free") are non-answers.  What is necessary is for
public policy to reach some new understandings on appropriate conduct,
both for computer users and for policing authorities.

Marx points out that undercover policing has developed from the
society at large rather than as a rogue activity.  It is often stated
that a society gets the crime that it deserves.  Similarly, we get the
policing that we accept.  Covert policing developed as a result of
changing crime patterns, which included acts such as white collar
crimes and drug smuggling that were difficult to control with
traditional policing.  Specific funding supports from the federal
government and changes in judicial and legislative priorities also
supported more active policing activities.  Finally, new surveillance
technology allowed different types of police work.  Undercover
policing was the child of major changes in our society.

The last chapter sums up his arguments about policing as well as the
larger issues of social change by discussing the new surveillance.
Whether humans or computers as informers, visual and audio
surveillance, electronic leashes or person truth technologies, there
is a steadily increasing technological way and technological will to
gather information on individuals.  The new surveillance transcends
anything possible during earlier eras.  It transcends, distance,
darkness, physical barriers, and time.  It is often involuntary.  It
is more intensive and more extensive.  The result could mean a
maximum-security society.

How does this book help us to understand the cyberspace battles?  In
some ways, that book can be seen as a counter-argument, both against
the Secret Service (and other computer crime-fighting organizations)
as well as against the EFF (and the other information freeing
organizations).  Rather than taking a middle road that says both sides
of this argument are equally right or wrong, Marx suggests that in
democratic societies, we are faced with police techniques that offer
us a queasy ethical and moral paradox.  "The choice between anarchy
and repression is not a happy one, wherever the balance is struck.  We
are caught on the horns of a moral dilemma.  In Machiavelli's words:
"...(P)rudence consists in knowing how to recognize the nature of the
difficulties and how to choose the least bad as good.' "  The barbed
wire of the electronic age must have a different set of conditions.

The book draws out relevant questions and issues, not only about the
police but more about public policy.  Marx presents what he calls a
compass, not a map.  The questions that he raises should be seen as
navigational aids and not as a flight plan.  He ventures to ask,
"Where and how should the lines (of appropriate police activities) be
drawn?"  That is a good start for the development of electronic
rights.

For those who would like a more constitutional view of the policing
problem, I would also recommend the report from the U.S. Congress,
Office of Technology Assessment, CRIMINAL JUSTICE, NEW TECHNOLOGIES
AND THE LAW.  This 1988 report, available from the Government Printing
Office (No. 052-003-01105-1, $2.75) is a useful supplement to the Marx
book.

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