Category: Privacy (Electronic Surveillance)

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“Brain Spyware”

As if we don’t have enough to worry about, now there’s spyware for your brain.  Or, there could be.  Researchers at Oxford, Geneva, and Berkeley have created a proof of concept for using commercially available brain-computer interfaces to discover private facts about today’s gamers. Read More

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Bartelt’s Dog and the Continuing Vitality of the Supreme Court’s Tacit Distinction between Sense Enhancement and Sense Creation

Last Term, in an amicus brief in United States v. Jones, 565 U.S. __, several colleagues and I highlighted the Supreme Court’s long, albeit not always clearly stated, history of distinguishing between sense-enhancing and sense-creating technologies for Fourth Amendment purposes.  As a practical matter, the Court has consistently subjected technologies in the latter category to closer scrutiny than technologies that merely bolster natural human senses.  Thus, the use of searchlights, field glasses, and (to some extent) beepers and airplane-mounted cameras was not found to implicate the Fourth Amendment.  As the Court explained, “[n]othing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology” may afford.  460 U.S. at 282 (emphasis added).  In contrast, the Court has held that technologies that create a new capacity altogether, including movie projectors, wiretaps, ultrasound devices, radar flashlights, directional microphones, thermal imagers, and (as of Jones) GPS tracking devices, do trigger the Fourth Amendment.  To hold otherwise, as the Court has stated, would “shrink the realm of guaranteed privacy,” leaving citizens “at the mercy of advancing technology.”  533 U.S. at 34-36.

In fact, of the landmark cases involving technology and the Fourth Amendment during the past 85 years (from United States v. Lee, 274 U.S. 559, in 1927 to Jones in 2012), only in one instance did the Supreme Court appear to deviate from this distinction between sense enhancement and sense creation.  In that case, United States v. Place, 462 U.S. 696, and its successors, City of Indianapolis v. Edmond, 531 U.S. 32, and Illinois v. Caballes, 543 U.S. 405, the Court held that the use of trained narcotics-detection dogs (more apparently similar to using a new capacity than merely enhancing a natural human sense) did not implicate the Fourth Amendment.  In our amicus brief in Jones, we rationalized Place, Edmond, and Caballes by arguing that dogs were unique, being natural biological creatures that had long been used by the police, even in the time of the Framers.  Further, we argued, a canine sniff, unlike the use of, say, a wiretap or a thermal imager, “discloses only the presence or absence of narcotics, a contraband item.”  462 U.S. at 707 (emphasis added).  Still, the apparent ‘dog exception’ was rankling. Read More

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Some Thoughts On Florida v. Jardines

Amidst all of the discussion of gay marriage at One First Street NW today, you may have missed that the Supreme Court decided Florida v. Jardines.  In a five-four opinion by Justice Scalia, the Court held that bringing a police dog within the curtilage (in this case, the front porch) of the home to sniff for drugs constitutes a search for purposes of the Fourth Amendment.  As Orin Kerr predicted, the opinion turned on the lack of implied consent to approach with a dog, which converted the detectives’ action into a trespass.  Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Scalia’s opinion.  Justice Alito wrote for the dissent, joined by Justices Kennedy, Breyer, and the Chief Justice.  Justice Kagan, joined by Justices Ginsburg and Sotomayor, wrote separately to note that they “could just as happily have decided [the case] by looking to Jardines’ privacy interests.” Read More

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“The Future of Drones in America” Hearing

I got the chance to testify at a hearing of the full Senate Judiciary Committee about the domestic use of drones yesterday. The New York Times has this coverage and, for aficionados of torts, I talk about intrusion upon seclusion with Senator Dick Durbin in this clip from NBC News. Should you get a chance to watch the hearing in full, Senator Al Franken’s thoughts at the end were particularly vivid. My written and oral comments were similar to those outlined in my previous post: privacy law places few limits on the use of drones for surveillance, but we should be very careful in crafting any drone-specific legislative response.  It happens that, about when I was testifying, my students were taking a final where one of the questions involved a drone filming a private party.  I feel they had fair notice that this might be on the exam.

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New Edition of Solove & Schwartz’s Privacy Law Fundamentals: Must-Read (and Check out the Video)

Privacy leading lights Dan Solove and Paul Schwartz have recently released the 2013 edition of Privacy Law Fundamentals, a must-have for privacy practitioners, scholars, students, and really anyone who cares about privacy.

Privacy Law Fundamentals is an essential primer of the state of privacy law, capturing the up-to-date developments in legislation, FTC enforcement actions, and cases here and abroad.  As Chief Privacy Officers like Intel’s David Hoffman and renown privacy practitioners like Hogan’s Chris Wolf and Covington’s Kurt Wimmer agree, Privacy Law Fundamentals is an “essential” and “authoritative guide” on privacy law, compact and incredibly useful.  For those of you who know Dan and Paul, their work is not only incredibly wise and helpful but also dispensed in person with serious humor.  Check out this You Tube video, “Privacy Law in 60 Seconds,” to see what I mean.  I think that Psy may have a run for his money on making us smile.

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In Honor of Alan Westin: Privacy Trailblazer, Seer, and Changemaker

Privacy leading light Alan Westin passed away this week.  Almost fifty years ago, Westin started his trailblazing work helping us understand the dangers of surveillance technologies.  Building on the work that Warren and Brandeis started in “The Right to Privacy” in 1898, Westin published Privacy and Freedom in 1967.  A year later, he took his normative case for privacy to the trenches.  As Director of the National Academy of Science’s Computer Science and Engineering Board, he and a team of researchers studied governmental, commercial, and private organizations using databases to amass, use, and share personal information.  Westin’s team interviewed 55 organizations, from local law enforcement, federal agencies like the Social Security Administration, and direct-mail companies like R.L. Polk (a predecessor to our behavioral advertising industry).

The 1972 report, Databanks in a Free Society: Computers, Record-Keeping, and Privacy, is a masterpiece.  With 14 case studies, the report made clear the extent to which public and private entities had been building substantial computerized dossiers of people’s activities and the risks to economic livelihood, reputation, and self-determination.  It demonstrated the unrestrained nature of data collection and sharing, with driver’s license bureaus selling personal information to direct-mail companies and law enforcement sharing arrest records with local and state agencies for employment and licensing matters.  Surely influenced by Westin’s earlier work, some data collectors, like the Kansas City Police Department, talked to the team about privacy protections, suggesting the need for verification of source documents, audit logs, passwords, and discipline for improper use of data. Westin’s report called for data collectors to adopt ethical procedures for data collection and sharing, including procedural protections such as notice and chance to correct inaccurate or incomplete information, data minimization requirements, and sharing limits.

Westin’s work shaped the debate about the right to privacy at the dawn of our surveillance era. His changing making agenda was front and center of  the Privacy Act of 1974.  In the early 1970s, nearly fifty congressional hearings and reports investigated a range of data privacy issues, including the use of census records, access to criminal history records, employers’ use of lie detector tests, and the military and law enforcement’s monitoring of political dissidents. State and federal executives spearheaded investigations of surveillance technologies including a proposed National Databank Center.

Just as public discourse was consumed with the “data-bank problem,” the courts began to pay attention. In Whalen v. Roe, a 1977 case involving New York’s mandatory collection of prescription drug records, the Supreme Court strongly suggested that the Constitution contains a right to information privacy based on substantive due process. Although it held that the state prescription drug database did not violate the constitutional right to information privacy because it was adequately secured, the Court recognized an individual’s interest in avoiding disclosure of certain kinds of personal information. Writing for the Court, Justice Stevens noted the “threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files.”  In a concurring opinion, Justice Brennan warned that the “central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology.”

What Westin underscored so long ago, and what Whalen v. Roe signaled, technologies used for broad, indiscriminate, and intrusive public surveillance threaten liberty interests.  Last term, in United States v. Jones, the Supreme Court signaled that these concerns have Fourth Amendment salience. Concurring opinions indicate that at least five justices have serious Fourth Amendment concerns about law enforcement’s growing surveillance capabilities. Those justices insisted that citizens have reasonable expectations of privacy in substantial quantities of personal information.  In our article “The Right to Quantitative Privacy,” David Gray and I are seeking to carry forward Westin’s insights (and those of Brandeis and Warren before him) into the Fourth Amendment arena as the five concurring justices in Jones suggested.  More on that to come, but for now, let’s thank Alan Westin for his extraordinary work on the “computerized databanks” problem.

 

“Kicking the Tires” is not “Looking Under the Hood”

Celebrated in the tech press only a week ago, the FTC inaction (and non-explanation of its inaction) with respect to search bias concerns is already starting to curdle. The FT ran a front page headline titled “Europe Takes Tough Stance on Google.” Another story included this striking comment from the EU’s competition chief:

Almunia insists that the Federal Trade Commission decision will be “neither an obstacle [for the European Commission] nor an advantage [for Google]. You can also think, well, this European authority, the commission, has received a gift from the American authorities, given that now every result they will get will be much better than the conclusions of the FTC,” he said with playful confidence. “Google people know very well that they need to provide results and real remedies, not arguments or comparisons with what happened on the other side [of the Atlantic].”

In response to allegations of search bias, Google has essentially said, “Trust us.” And at the end of its investigation into the potential bias, the FTC has essentially said the same. One public interest group has already put in a FOIA request for communications between Google and the FTC. Consumer Watchdog has requested a staff report that was reported to have recommended more robust action. Will Google, an advocate of openness in government and the internet generally, hold firm to its professed principles and commend those requests?
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Cyberstalking, Still Ignored (Really)

Since Friday, the news has been abuzz about the resignation of General Patraeus and the FBI investigation of alleged cyber stalking that led to the exposure of his affair and potential security risk — blackmail — that such an affair raises.  According to today’s New York Times and other media coverage, the FBI agent who spearheaded the cyber stalking investigation was not really seeking to enforce the federal Interstate Stalking law.  Instead, the agent thought, “This is serious” because the e-mail sender “seem[ed] to know the comings and goings of a couple of generals.’”  The FBI agent supposedly worried that might suggest the Generals were being stalked in ways that could compromise national security.  The Times explains that the agent “doggedly pursued Ms. Kelley’s cyberstalking complaint,” despite being admonished by supervisors who thought he was trying to improperly insert himself into the investigation.  What’s clear: the agent pursued a criminal investigation of Ms. Broadwell for allegedly stalking Ms. Kelley (though it’s clear that is not the stalking that worried the FBI), which served as the basis for the warrant obtained by the FBI to retrieve Broadwell’s e-mails and ultimately obtain the e-mails of General Patraeus.  This investigation used cyber stalking of Ms. Kelley as a pretext to obtain Ms. Broadwell’s e-mails and hence to better understand what the agent thought was the sexual nature of the relationship between Ms. Broadwell and the General.

On first hearing about the investigation, I never kidded myself that the FBI was taking cyber stalking seriously.  That is not to say that they never do, but the typical response to cyber stalking complaints is to advise victims to turn off their computers, to return to the precinct when their stalkers confront them offline, to pursue their harassers with civil suits, and/or to ignore their attackers who will eventually get bored.  Or as cyber stalking victims have told me, law enforcement agents, both federal and state, incorrectly tell them that criminal law provides little help to cyber stalking victims.  (Federal and state law often does punish repeated online conduct directed at private individuals for no legitimate reason that is designed to cause substantial emotional distress that does in fact cause substantial emotional distress, 18 U.S.C. 2261A(2)(A)).  Indeed, little has changed since the Department of Justice reported in 2001 that the majority of law enforcement agencies refused to investigate cyber stalking cases because they lacked training to understand the seriousness of the attacks and the potential legal responses.  Part of the problem may be attributable to officers’ poor response to stalking generally.  According to the 2009 National Crime Victimization Survey, stalking continues to be frequently overlooked and often misunderstood.  Half of those surveyed explained  that officers took a report and did nothing else.  Almost 19% reported that officers did nothing at all.  They attributed police inaction to a lack of interest in getting involved, a sense that no legal authority existed, and incompetence.  Lack of training and troubling social attitudes are to blame for criminal law’s under-enforcement.

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Harvard Law Review Symposium on Privacy & Technology

This Friday, November 9th, I will be introducing and participating in the Harvard Law Review’s symposium on privacy and technology.  The symposium is open to the public, and is from 8:30 AM to 4:30 PM at Harvard Law School (Langdell South).

I have posted a draft of my symposium essay on SSRN, where it can be downloaded for free.  The essay will be published in the Harvard Law Review in 2013.  My essay is entitled Privacy Self-Management and the Consent Paradox, and I discuss what I call the “privacy self-management model,” which is the current regulatory approach for protecting privacy — the law provides people with a set of rights to enable them to decide for themselves about how to weigh the costs and benefits of the collection, use, or disclosure of their data. I demonstrate how this model fails to serve as adequate protection of privacy, and I argue that privacy law and policy must confront a confounding paradox with consent.  Currently, consent to the collection, use, and disclosure of personal data is often not meaningful, but the most apparent solution — paternalistic measures — even more directly denies people the freedom to make consensual choices about their data.

I welcome your comments on the draft, which will undergo considerable revision in the months to come.  In future posts, I plan to discuss a few points that I raise my essay, so I welcome your comments in these discussions as well.

The line up of the symposium is as follows:

Symposium 2012:
Privacy & Technology

Daniel J. Solove
George Washinton University
“Introduction: Privacy Self-Management and the Consent Paradox”

Jonathan Zittrain
Harvard Law School

Paul Schwartz
Berkeley Law School
“The E.U.-U.S. Privacy Collision”

Lior Strahilevitz
University of Chicago
“A Positive Theory of Privacy”

Julie Cohen
Georgetown University
“What Privacy is For”

Neil Richards
Washington University
“The Harms of Surveillance”

Danielle Citron
University of Maryland

Anita Allen
University of Pennsylvania

Orin Kerr
George Washington University

Alessandro Acquisti
Carnegie Mellon University

Latanya Sweeney
Harvard University

Joel Reidenberg
Fordham University

Paul Ohm
University of Colorado

Tim Wu
Columbia University

Thomas Crocker
University of South Carolina

Danny Weitzner
MIT

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PETs, Law and Surveillance

In Europe, privacy is considered a fundamental human right. Section 8 of the European Convention of Human Rights (ECHR) limits the power of the state to interfere in citizens’ privacy, ”except such as is in accordance with the law and is necessary in a democratic society”. Privacy is also granted constitutional protection in the Fourth Amendment to the United States Constitution. Both the ECHR and the US Constitution establish the right to privacy as freedom from government surveillance (I’ll call this “constitutional privacy”). Over the past 40 years, a specific framework has emerged to protect informational privacy (see here and here and here and here); yet this framework (“information privacy”) provides little protection against surveillance by either government or private sector organizations. Indeed, the information privacy framework presumes that a data controller (i.e., a government or business organization collecting, storing and using personal data) is a trusted party, essentially acting as a steward of individual rights. In doing so, it overlooks the fact that organizations often have strong incentives to subject individuals to persistent surveillance; to monetize individuals’ data; and to maximize information collection, storage and use.

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