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Wait a minute, you say, that sounds rather creepy -- in fact, it sounds like it should be illegal. That's what Elizabeth Schroeder says, too. "This is a very frightening intrusion into our privacy," according to Schroeder, the associate director of the Southern California ACLU. "To allow decisions to be made by machines which purport to reveal the truth is Orwellian and very dangerous."
Orwellian and dangerous perhaps. But at the moment, it's not illegal.
PRIVACY LAW IS A FAIRLY MODERN concept. While laws around property and murder have had thousands of years to develop, privacy didn't really become an issue until human beings, clever monkeys that we are, created the tools to invade it. The Fourth Amendment strictly discussed physical search and seizure, because at the time it was drafted, that was the only way to discover information thought to be held private. It wasn't until wiretaps were developed and the telephone had been invented for tapping that the U.S. Supreme Court had to consider the limitations of that language. In Olmstead vs. United States (1928) the court ruled that Olmstead's Fourth Amendment rights had not been violated because wiretaps didn't actually search or seize anything. Six years later, Congress passed the Federal Communications Act, greatly restricting wiretap activities. And this has been the trend in modern privacy law ever since: Technology leaps ahead, and the courts try a case that doesn't fit into the current legislation, Congress enacts new legislation to fit, technology leaps ahead . . .
For now, technology has leaped ahead. To be sure, there are instances where use of this device would be prohibited. The Employee Polygraph Protection Act, for instance, forbids the screening of applicants or the testing of employees by any "polygraph, deceptograph, voice stress analyzer . . . or any other similar device . . ." And certain questions, under fair housing laws and the Americans With Disabilities Act, you simply cannot ask. But what if Truster tells your future landlord you actually have smoked pot? Don't bother calling your attorney; she can't help you. Unless your landlord causes you public embar-
rassment with the information Truster revealed, your right to lie does not enjoy absolute protection. "There are certain things about someone's private life that aren't anybody's business," insists Schroeder, and on a moral or ethical level, she may be right. But legally, many details of one's personal life reside in the public domain.
Part of what protects Truster at the moment is that it is "designed to be used by a party to a conversation . . ." Because you are speaking with the person testing you and the conversation is not recorded, Truster does not fall under the restrictions of phone tapping or illegal surveillance. But USC professor of law Erwin Chemerinsky doesn't think this protection will last. He concedes that you are giving certain permissions in the context of a conversation, but he doesn't believe that does away with all your rights. "I don't think that you're consenting implicitly to somebody using a machine any more than you're consenting to being recorded." Chemerinsky projects that the continued intrusion that technology like Truster facilitates will eventually force legislators' hands. He echoes Schroeder's contention that certain parts of our lives are just private. Borrowing a phrase made famous in Judge Brandeis' dissent in the Olmstead case, Chemerinsky says, "in terms of the right to be let alone . . . this really is saying, 'we have the right to be let alone by machines, that machines shouldn't be evaluating us without our consent.'"
Legal matters aside, there is some doubt as to whether the Truster is all that good at evaluating anybody. The American Polygraph Association says that "there is no independent research . . . that voice stress analysis is an accurate means of detecting deception" -- precisely what the Supreme Court said in March 1998 when it denied a defendant's motion to admit polygraph results as evidence (United States vs. Scheffer). But Truster's makers claim that "controlled testing has found Truster's degree of credibility to be extremely high."
Faced with these divergent views, I decided to find out for myself. I installed Truster on my computer, hooked the adapter into my phone and left it running continually for a week. Whenever anyone called, I clicked "Start Test," gathered a few voice samples so the machine could calibrate to the caller and started my interrogation. I Trustered my mother, my brother-in-law and some guy selling long-distance service.
With its sound waves scrolling, stress graphs charting and the summary judgment flashing "Inaccuracy," "Truth," "False Statement," I have to admit Truster looked as if it were revealing something. What, exactly, I'm not sure. I found it difficult to ask questions, watch the screen for the system's responses and not sound like Perry Mason grilling a murder suspect on the witness stand. Eventually, the caller would get suspicious, or I would lose track of which response matched which question, and the whole thing would end up hopelessly muddled. Evidently, I'm not that good at lying myself; it was hard to resist letting my subjects in on my secret activity.