Archive for the ‘Privacy (Law Enforcement)’ Category

Harvard Law Review Privacy Symposium Issue

posted by Daniel Solove

The privacy symposium issue of the Harvard Law Review is hot off the presses.  Here are the articles:

SYMPOSIUM
PRIVACY AND TECHNOLOGY
Introduction: Privacy Self-Management and the Consent Dilemmas
Daniel J. Solove

What Privacy is For
Julie E. Cohen

The Dangers of Surveillance
Neil M. Richards

The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures
Paul M. Schwartz

Toward a Positive Theory of Privacy Law
Lior Jacob Strahilevitz

  May 21, 2013 at 10:52 am   Posted in: Articles and Books, Privacy, Privacy (Consumer Privacy), Privacy (Law Enforcement), Privacy (Medical)   Print This Post   No Comments

Overturning the Third-Party Doctrine by Statute: Hard and Harder

posted by Robert Gellman

Privacy advocates have disliked the third-party doctrine at least from the day in 1976 when the Supreme Court decided U.S. v. Miller.  Anyone who remembers the Privacy Protection Study Commission knows that its report was heavily influenced by Miller.  My first task in my long stint as a congressional staffer was to organize a hearing to receive the report of the Commission in 1977.  In the introduction to the report, the Commission called the date of the decision “a fateful day for personal privacy.”

Last year, privacy advocates cheered when Justice Sonia Sotomayor’s concurrence in U.S. v. Jones asked if it was time to reconsider the third-party doctrine.  Yet it is likely that it would take a long time before the Supreme Court revisits and overturns the third-party doctrine, if ever.  Sotomayor’s opinion didn’t attract a single other Justice.

Can we draft a statute to overturn the third-party doctrine?  That is not an easy task, and it may be an unattainable goal politically.  Nevertheless, the discussion has to start somewhere.  I acknowledge that not everyone wants to overturn Miller.  See Orin Kerr’s The Case For the Third-party Doctrine.  I’m certainly not the first person to ask the how-to-do-it question.  Dan Solove wrestled with the problem in Digital Dossiers and the Dissipation of Fourth Amendment Privacy.

I’m going at the problem as if I were still a congressional staffer tasked with drafting a bill.  I see right away that there is precedent.  Somewhat remarkably, Congress partly overturned the Miller decision in 1978 when it enacted The Right to Financial Privacy Act, 12 U.S.C. § 3401 et seq.  The RFPA says that if the federal government wants to obtain records of a bank customer, it must notify the customer and allow the customer to challenge the request.

The RFPA is remarkable too for its exemptions and weak standards.  The law only applies to the federal government and not to state and local governments.  (States may have their own laws applicable to state agencies.)  Bank supervisory agencies are largely exempt.  The IRS is exempt.  Disclosures required by federal law are exempt.  Disclosures for government loan programs are exempt.  Disclosures for grand jury subpoenas are exempt.  That effectively exempts a lot of criminal law enforcement activity.  Disclosures to GAO and the CFPB are exempt.  Disclosures for investigations of crimes against financial institutions by insiders are exempt.  Disclosures to intelligence agencies are exempt.  This long – and incomplete – list is the first hint that overturning the third-party doctrine won’t be easy.

We’re not done with the weaknesses in the RFPA.  A customer who receives notice of a government request has ten days to challenge the request in federal court.  The customer must argue that the records sought are not relevant to the legitimate law enforcement inquiry identified by the government in the notice.  The customer loses if there is a demonstrable reason to believe that the law enforcement is legitimate and a reasonable belief that the records sought are relevant to that inquiry.  Relevance and legitimacy are weak standards, to say the least.  Good luck winning your case.

Who should get the protection of our bill?  The RFPA gives rights to “customers” of a financial institution.  A customer is an individual or partnership of five or fewer individuals (how would anyone know?).  If legal persons also receive protection, a bill might actually attract corporate support, along with major opposition from every regulatory agency in town.  It will be hard enough to pass a bill limited to individuals.  The great advantage of playing staffer is that you can apply political criteria to solve knotty policy problems.  I’d be inclined to stick to individuals.

Read the rest of this post »

  April 29, 2013 at 12:02 pm   Posted in: Criminal Procedure, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security)   Print This Post   3 Comments

“Brain Spyware”

posted by Ryan Calo

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 the rest of this post »

  April 14, 2013 at 12:57 am   Posted in: Bioethics, Civil Rights, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (ID Theft), Privacy (Law Enforcement), Privacy (Medical), Technology, Uncategorized   Print This Post   One Comment

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

posted by Albert Wong

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 the rest of this post »

  March 31, 2013 at 11:35 am   Posted in: Anonymity, Constitutional Law, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology, Uncategorized   Print This Post   14 Comments

Some Thoughts On Florida v. Jardines

posted by Ryan Calo

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 the rest of this post »

  March 26, 2013 at 1:21 pm   Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Uncategorized   Print This Post   2 Comments

“The Future of Drones in America” Hearing

posted by Ryan Calo

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.

  March 21, 2013 at 7:42 pm  Tags: Robotics  Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Technology, Tort Law   Print This Post   No Comments

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

posted by Danielle Citron

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.

  March 8, 2013 at 8:42 am   Posted in: Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Privacy (ID Theft), Privacy (Law Enforcement), Privacy (Medical), Privacy (National Security)   Print This Post   4 Comments

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

posted by Danielle Citron

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.

  February 24, 2013 at 10:18 am   Posted in: Criminal Procedure, Current Events, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement)   Print This Post   4 Comments

Video Voyeurism

posted by Danielle Citron

Recall that during the spring, a jury convicted Dahrun Ravi of criminal invasion of privacy along with a bias intimidation charge for surreptitiously using his webcam to live stream his roommate’s sexual encounter and for attempting to do so a second time.  Here comes word of another criminal invasion of privacy case, this time in Maryland.  Apparently, a Howard County man broke into the apartments of two young women, installing a video camera in their bathrooms and bedrooms.  The man has been charged with burglary and video surveillance “with a prurient interest.”  The man apparently knew the women, allowing him to steal and copy their apartment keys.  According to news reports, the suspect filmed himself installing the cameras.  Apparently, Maryland law aims to punish and deter sexualized privacy invasions by requiring proof of prurient interest.  Besides the Ravi case, another criminal matter that comes to mind is the Erin Andrews stalking case.  Much like the criminal case against Ms. Andrews’s stalker, prosecutors might also have charged the defendant with criminal harassment, that is, repeated conduct designed to cause victim substantial emotional distress with intent to cause substantial emotional distress.  On the civil side of things, the women can surely sue their harasser for tort privacy’s intrusion on seclusion, which protects against invasions of someone’s solitude or her “private affairs or concerns” that would be “highly offensive to the reasonable person.”  As I head off to speak at the Harvard Law Review’s symposium on Privacy and Technology where I will be commenting on Neil Richards’s excellent essay “The Dangers of Surveillance” (and as I write my book Hate 3.0: The Rise of Cyber Harassment and How to Stop It, forthcoming in Harvard University Press), this case could not be more timely.  You can check out David Gray’s and my response to Neil’s paper, a draft of which is posted on the HLR website.

  November 8, 2012 at 1:00 pm   Posted in: Cyber Civil Rights, Privacy, Privacy (Law Enforcement)   Print This Post   No Comments

Harvard Law Review Symposium on Privacy & Technology

posted by Daniel Solove

  November 5, 2012 at 3:43 pm   Posted in: Articles and Books, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Technology   Print This Post   15 Comments

More on government access to private sector data

posted by Omer Tene

Last week I blogged here about a comprehensive survey on systematic government access to private sector data, which will be published in the next issue of International Data Privacy Law, an Oxford University Press law journal edited by Christopher Kuner. Several readers have asked whether the results of the survey are available online. Well, now they are – even before publication of the special issue. The project, which was organized by Fred Cate and Jim Dempsey and supported by The Privacy Projects, covered government access laws in Australia, Canada, China, Germany, Israel, Japan, United Kingdom and United States.

Peter Swire’s thought provoking piece on the increased importance of government access to the cloud in an age of encrypted communications appears here. Also see the special issue’s editorial, by Fred, Jim and Ira Rubinstein.

 

  October 2, 2012 at 2:04 am  Tags: cloud computing, data protection, Fourth Amendment, government access, Privacy  Posted in: Constitutional Law, Consumer Protection Law, Cyberlaw, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Uncategorized   Print This Post   No Comments

On systematic government access to private sector data

posted by Omer Tene

The Sixth Circuit Court of Appeals has recently decided in United States v. Skinner that police does not need a warrant to obtain GPS location data for mobile phones. The decision, based on the holding of the Supreme Court in US v. Jones, highlights the need for a comprehensive reform of rules on government access to communications non-contents information (“communications data”). Once consisting of only a list of phone numbers dialed by a customer (a “pen register”), communications data have become rife with personal information, including location, clickstream, social contacts and more.

To a non-American, the US v. Jones ruling is truly astounding in its narrow scope. Clearly, the Justices aimed to sidestep the obvious question of expectation of privacy in public spaces. The Court did hold that the attachment of a GPS tracking device to a vehicle and its use to monitor the vehicle’s movements constitutes a Fourth Amendment “search”. But it based its holding not on the persistent surveillance of the suspect’s movements but rather on a “trespass to chattels” inflicted when a government agent ever-so-slightly touched the suspect’s vehicle to attach the tracking device. In the opinion of the Court, it was the clearly insignificant “occupation of property” (touching a car!) rather than the obviously weighty location tracking that triggered constitutional protection.

Suffice it to say, that to an outside observer, the property infringement appears to have been a side issue in both Jones and Skinner. The main issue of course is government power to remotely access information about an individual’s life, which is increasingly stored by third parties in the cloud. In most cases past – and certainly present and future – there is little need to trespass on an individual’s property in order to monitor her every move. Our lives are increasingly mediated by technology. Numerous third parties possess volumes of information about our finances, health, online endeavors, geographical movements, etc. For effective surveillance, the government typically just needs to ask.

This is why an upcoming issue of International Data Privacy Law (IDPL) (an Oxford University Press law journal), which is devoted to systematic government access to private sector data, is so timely and important. The special issue covers rules on government access in multiple jurisdictions, including the US, UK, Germany, Israel, Japan, China, India, Australia and Canada.

Read the rest of this post »

  September 29, 2012 at 4:34 am  Tags: cloud computing, data protection, law enforcement, national security, Privacy  Posted in: Constitutional Law, Consumer Protection Law, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Uncategorized   Print This Post   2 Comments

Laws Regulating PII

posted by Dave Hoffman

My co-author Sasha Romanosky asks me to post the following:

I am involved in a research project that examines state laws affecting the flow of personal information in some way. This information could relate to patients, employees, financial or retail customers, or even just individuals. And by “flow” we are interested in laws that affect the collection, use, storage, sale, sharing, disclosure, or even destruction of this information.

For example, some state laws require that companies notify you when your personal information has been hacked, while other state laws require notice if the firm plans to sell your information. In addition, laws in other
states restrict the sale of personal health information; enable law enforcement to track cell phone usage without a warrant; or prohibit the collection of a customer’s zip code during a credit card purchase.

Given the huge variation among states in their information laws, we would like to ask readers of Concurring Opinions to help us collect examples of such laws. You are welcome to either post a response to this blog entry or
reply to me directly at sromanos at cmu dot edu.

Thank you!

Sasha is a good guy, and a really careful researcher. Let’s help him!

  September 10, 2012 at 9:58 am   Posted in: Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (ID Theft), Privacy (Law Enforcement), Privacy (Medical), Privacy (National Security)   Print This Post   3 Comments

Privacy, Masks and Religion

posted by Omer Tene

One of the most significant developments for privacy law over the past few years has been the rapid erosion of privacy in public. As recently as a decade ago, we benefitted from a fair degree of de facto privacy when walking the streets of a city or navigating a shopping mall. To be sure, we were in plain sight; someone could have seen and followed us; and we would certainly be noticed if we took off our clothes. After all, a public space was always less private than a home. Yet with the notable exception of celebrities, we would have generally benefitted from a fair degree of anonymity or obscurity. A great deal of effort, such as surveillance by a private investigator or team of FBI agents, was required to reverse that. [This, by the way, isn’t a post about US v. Jones, which I will write about later].

 

Now, with mobile tracking devices always on in our pockets; with GPS enabled cars; surveillance cameras linked to facial recognition technologies; smart signage (billboards that target passersby based on their gender, age, or eventually identity); and devices with embedded RFID chips – privacy in public is becoming a remnant of the past.

 

Location tracking is already a powerful tool in the hands of both law enforcement and private businesses, offering a wide array of localized services from restaurant recommendations to traffic reports. Ambient social location apps, such as Glancee and Banjo, are increasingly popular, creating social contexts based on users’ location and enabling users to meet and interact.

 

Facial recognition is becoming more prevalent. This technology too can be used by law enforcement for surveillance or by businesses to analyze certain characteristics of their customers, such as their age, gender or mood (facial detection) or downright identify them (facial recognition). One such service, which was recently tested, allows individuals to check-in to a location on Facebook through facial scanning.

 

Essentially, our face is becoming equivalent to a cookie, the ubiquitous online tracking device. Yet unlike cookies, faces are difficult to erase. And while cellular phones could in theory be left at home, we very rarely travel without them. How will individuals react to a world in which all traces of privacy in public are lost?

Read the rest of this post »

  September 1, 2012 at 4:07 am  Tags: anti-mask laws, data protection, facial recognition, Privacy, US v. Jones  Posted in: Privacy, Privacy (Consumer Privacy), Privacy (Law Enforcement), Uncategorized   Print This Post   No Comments

United States v. Skinner: Developments in the Surveillance State and a Response

posted by Danielle Citron

It’s not news to CoOp readers that Fourth Amendment law is in a state of confusion over how to deal with ever-expanding capacities of state agents to collect information about our movements and activities using a range of surveillance technologies.  My colleague David Gray and I have spent lots of time thinking and writing about the fog surrounding this issue in light of United States v. Jones.  So we write this post together — Professor David Gray is my brilliant colleague who has been a guest for us in the past.  So here is what is on our minds:

The Supreme Court avoided a four-square engagement with these issues last term in Jones by rehabilitating a long-forgotten, but not lost, property-based test of Fourth Amendment search.  For most of us, however, the real action in the opinion was in the concurrences, which make clear that five justices are ready to hold that we may have a reasonable expectation of privacy in massive aggregates of data, even if not that is not true for the constituent parts.  The focus of the academic debate after Jones, including a really fascinating session at the Privacy Law Scholars Conference in June, has largely focused on the pros and cons of the “mosaic” theory, which would assess Fourth Amendment interests in quantitative privacy on a case-by-case basis by asking whether law enforcement had gathered too much information on their subject in the course of their investigation.  Justice Alito, writing for himself and three others, appeared to endorse the mosaic theory in Jones, and therefore would have held that law enforcement engaged in a Fourth Amendment search by using a GPS-enabled tracking device to monitor Jones’s movements over public streets for 28 days, generating over 2,000 pages of data along the way.

Before the ink was dry in Jones, Orin Kerr was out with a powerful critique.  Orin’s concerns, which Justice Scalia seems to share, are doctrinal and practical.  Christopher Slobogin has since offered a very thoughtful defense of the mosaic theory, which comes complete with a model statute complete with commentary (take notice Chief Justice Roberts!).  Professor Gray and I just posted an article on SSRN arguing that, by focusing on the mosaic theory, much of the conversation about technology and the Fourth Amendment has gone badly wrong after Jones.  The Sixth Circuit’s opinion in United States v. Skinner confirms the worst of our concerns.  Another nod to Orin Kerr for putting a spotlight on this decision over at the Volokh Conspiracy.

The question put to the court in Skinner was whether the “use of the GPS location information emitted from [Skinner’s] cell phone was a warrantless search that violated the Fourth Amendment . . . .”  Writing for himself and Judge Clay, Judge Rogers held that “Skinner did not have a reasonable expectation of privacy in the data emanating from his cell phone that showed its location” in the same way that “the driver of a getaway car has no expectation of privacy in the particular combination of colors of his car’s paint.”  Because the officers tracking Skinner only did so for three days, Judge Rogers also saw no quantitative privacy interest at stake.

Skinner is confusing in many ways.  The court is not entirely clear on what tracking technology was used, how it was used, which line of Fourth Amendment doctrine it relied upon, or how its holding can be reconciled with Kyllo.  For now, let’s bypass those issues to focus on what we take to be a dangerous implication of Skinner and perhaps the mosaic theory as well.  According to Judge Rogers, none of us has “a reasonable expectation of privacy in the inherent external locatability of a tool that he or she bought.”  That is, there is absolutely no Fourth Amendment prohibition on law enforcement’s using the GPS devices installed in our phone, cars, and computers, or trilateration between cellular towers to track any of us at anytime.  Because there are no real practical limitations on the scope of surveillance that these technologies can achieve, Judge Rogers’s holding licenses law enforcement to track us all of the time.  The mosaic theory might step in if the government tracks any one of us for too long, but it preserves the possibility that, at any given time, any of us or all of us may be subject to close government surveillance.

We think that something has gone terribly wrong if the Fourth Amendment is read as giving license to a surveillance state.  As we argue in our article, programs of broad and indiscriminate surveillance have deleterious effects on our individual development and our collective democratic processes.  These concerns are familiar in the information privacy law context, where we have spent nearly fifty years talking about  dataveillance and digital dossiers, but they have clear footing in the Fourth Amendment as well.  More precisely, we argue that a fundamental purpose of the Fourth Amendment is to serve as a bulwark against the rise of a surveillance state.  It should be read as denying law enforcement officers unfettered access to investigative technologies that are capable of facilitating broad programs of indiscriminate surveillance.  GPS-enabled tracking is pretty clearly one of these technologies, and therefore should be subject to the crucible of Fourth Amendment reasonableness—at least on our technology-centered approach to quantitative privacy.

  August 17, 2012 at 2:13 pm   Posted in: Criminal Procedure, Current Events, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security)   Print This Post   2 Comments

Social Media and Chat Monitoring

posted by Deven Desai

Suppose a system could help alert people to online sexual predators? Many might like that. But suppose that same system could allow people to look for gun purchasers, government critics, activists of any sort; what would we say then? The tension between these possibilities is before us. Mashable reports that Facebook and other platforms are now monitoring chats to see whether criminal activity is suspected. The article focuses on the child predator use case. Words are scanned for danger signals. Then “The software pays more attention to chats between users who don’t already have a well-established connection on the site and whose profile data indicate something may be wrong, such as a wide age gap. The scanning program is also ‘smart’ — it’s taught to keep an eye out for certain phrases found in the previously obtained chat records from criminals including sexual predators.” After a flag is raised a person decides whether to notify police. The other uses of such a system are not discussed in the article. Yet again, we smash our heads against the speech, security, privacy walls. I expect some protests and some support for the move. Blood may spill on old battlegrounds. Nonetheless, I think that the problems the practice creates merit the fight. The privacy harms and the speech harms mean that even if there are small “false positives” in the sexual predator realm, why a company gets to decide to notify police, how the system might be co-opted for other uses, and the affect on people’s ability to talk online should be sorted as social platforms start to implement monitoring systems.

  July 12, 2012 at 6:59 pm   Posted in: Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Technology   Print This Post   3 Comments

Lend me your ears, no really. I need them to ID you.

posted by Deven Desai

Researcher Mark Nixon at the University of Southampton “believes that using photos of individual ears matched against a comparative database could be as distinctive a form of identification as fingerprints.”

According to the University’s news site the claim is that: “Using ears for identification has clear advantages over other kinds of biometric identification, as, once developed, the ear changes little throughout a person’s life. This provides a cradle-to-grave method of identification.”

Ok so they are not taking ears. The method involves cameras, scans, and techniques you may know about from facial recognition. This article has a little more detail. As an A.I. system it probably is pretty cool. Still, it sounds so odd that I wonder whether this work has considered the whole piercing, large gauge trend. I can imagine security that now requires removing ear decorations regardless of what they are made of. Also if really used for less invasive ID, will wearing earmuffs be cause to think someone is hiding or should we remember that folks get cold. For the sci-fi inclined, bet that a movie will entail cutting off an ear for identification just like past films have involved cutting off fingers and hands to fake an identity.

  June 21, 2012 at 7:55 pm   Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (ID Theft), Privacy (Law Enforcement)   Print This Post   No Comments

Big Data Brokers as Fiduciaries

posted by Danielle Citron

In a piece entitled “You for Sale,” Sunday’s New York Times raised important concerns about the data broker industry.  Let us add some more perils and seek to reframe the debate about how to regulate Big Data.

Data brokers like Acxiom (and countless others) collect and mine a mind-boggling array of data about us, including Social Security numbers, property records, public-health data, criminal justice sources, car rentals, credit reports, postal and shipping records, utility bills, gaming, insurance claims, divorce records, online musings, browsing habits culled by behavioral advertisers, and the gold mine of drug- and food-store records.  They scrape our social network activity, which with a little mining can reveal our undisclosed sexual preferences, religious affiliations, political views, and other sensitive information.  They may integrate video footage of our offline shopping.  With the help of facial-recognition software, data mining algorithms factor into our dossiers the over-the-counter medicines we pick up, the books we browse, and the pesticides we contemplate buying for our backyards.  Our social media influence scores may make their way into the mix.  Companies, such as Klout, measure our social media influence, usually on a scale from one to 100.  They use variables like the number of our social media followers, frequency of updates, and number of likes, retweets, and shares.  What’s being tracked and analyzed about our online and offline behavior is accelerating – with no sign of slowing down and no assured way to find out.

As the Times piece notes, businesses buy data-broker dossiers to classify those consumers worth pursuing and those worth ignoring (so-called “waste”).  More often those already in an advantaged position get better deals and gifts while the less advantaged get nothing.  The Times piece rightly raised concerns about the growing inequality that such use of Big Data produces.  But far more is at stake.

Government is a major client for data brokers.  More than 70 fusion centers mine data-broker dossiers to detect crimes, “threats,” and “hazards.”  Individuals are routinely flagged as “threats.”  Such classifications make their way into the “information-sharing environment,” with access provided to local, state, and federal agencies as well as private-sector partners.  Troublingly, data-broker dossiers have no quality assurance.  They may include incomplete, misleading, and false data.  Let’s suppose a data broker has amassed a profile on Leslie McCann.  Social media scraped, information compiled, and videos scanned about “Leslie McCann” might include information about jazz artist “Les McCann” as well as information about criminal with a similar name and age.  Inaccurate Big Data has led to individuals’ erroneous inclusion on watch lists, denial of immigration applications, and loss of public benefits.  Read the rest of this post »

  June 19, 2012 at 5:08 pm   Posted in: Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (ID Theft), Privacy (Law Enforcement), Privacy (Medical), Privacy (National Security)   Print This Post   2 Comments

The Right to Be Forgotten: A Criminal’s Best Friend?

posted by Danielle Citron

By now, you’ve likely heard about the the proposed EU regulation concerning the right to be forgotten.  The drafters of the proposal expressed concern for  social media users who have posted comments or photographs that they later regretted. Commissioner Reding explained: “If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system.”

Proposed Article 17 provides:

[T]he data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child, where one of the following grounds applies . . . .

Where the controller referred to in paragraph 1 has made the personal data public, it shall take all reasonable steps, including technical measures, in relation to data for the publication of which the controller is responsible, to inform third parties which are processing such data, that a data subject requests them to erase any links to, or copy or replication of that personal data. Where the controller has authorised a third party publication of personal data, the controller shall be considered responsible for that publication.

The controller shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary: (a) for exercising the right of freedom of expression in accordance with Article 80; (b) for reasons of public interest in the area of public health in accordance with Article 81; (c) for historical, statistical and scientific research purposes in accordance with Article 83; (d) for compliance with a legal obligation to retain the personal data by Union or Member State law to which the controller is subject . . . . Read the rest of this post »

  May 15, 2012 at 5:26 pm   Posted in: Anonymity, Privacy, Privacy (Consumer Privacy), Privacy (Law Enforcement)   Print This Post   No Comments

BRIGHT IDEAS: Q&A with Bruce Schneier about Liars and Outliers

posted by Daniel Solove

Bruce Schneier has recently published a new book, Liars and Outliers: Enabling the Trust that Society Needs to Thrive (Wiley 2012).  Bruce is a renowned security expert, having written several great and influential books including Secrets and Lies and Beyond Fear.

Liars and Outliers is a fantastic book, and a very ambitious one — an attempt to conceptualize trust and security.  The book is filled with great insights, and is a true achievement. And it’s a fun read too.  I recently conducted a brief interview with Bruce about the book:

Q (Solove): What is the key idea of your book?

A (Schneier): Liars and Outliers is about trust in society, and how we induce it. Society requires trust to function; without it, society collapses. In order for people to have that trust, other people must be trustworthy. Basically, they have to conform to the social norms; they have to cooperate. However, within any cooperative system there is an alternative defection strategy, called defection: to be a parasite and take advantage of others’ cooperation.

Too many parasites can kill the cooperative system, so it is vital for society to keep defectors down to a minimum. Society has a variety of mechanisms to do this. It all sounds theoretical, but this model applies to terrorism, the financial crisis of 2008, Internet crime, the Mafia code of silence, market regulation…everything involving people, really.

Understanding the processes by which society induces trust, and how those processes fail, is essential to solving the major social and political problems of today. And that’s what the book is about. If I could tie policymakers to a chair and make them read my book, I would.

Okay, maybe I wouldn’t.

Q: What are a few of the conclusions from Liars and Outliers that you believe are the most important and/or provocative?

A: That 100% cooperation in society is impossible; there will always be defectors. Moreover, that more security isn’t always worth it. There are diminishing returns — spending twice as much on security doesn’t halve the risk — and the more security you have, the more innocents it accidentally ensnares. Also, society needs to trust those we entrust with enforcing trust; and the more power they have, the more easily they can abuse it. No one wants to live in a totalitarian society, even if it means there is no street crime.

More importantly, defectors — those who break social norms — are not always in the wrong. Sometimes they’re morally right, only it takes a generation before people realize it. Defectors are the vanguards of social change, and a society with too much security and too much cooperation is a stagnant one.

Read the rest of this post »

  May 14, 2012 at 2:26 am   Posted in: Book Reviews, Bright Ideas, Privacy, Privacy (Law Enforcement), Privacy (National Security)   Print This Post   One Comment

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