Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:

Essays

Last week’s unanimous decision of the Supreme Court in U.S. v. Jones (PDF) marks a major victory for constitutional rights.  While the justices split in their rationale, they agreed that protecting Americans’ privacy in the digital age will require the Court to do a great deal more to untangle its confusing Fourth Amendment jurisprudence. That will likely take several more decisions — and many years. Meanwhile, Congress should heed Justice Samuel Alito’s call for legislation limiting government’s ability to track us and snoop through our private communications.

Berin Szoka of TechFreedom have an insightful op-ed in c/net yesterday.  It resonates with some of what my co-blogger Dan Solove said in his post and urges Congress to move on ECPA reform.  Here is the piece:

With full knowledge of this history, the Jones decision should give us pause. It is widely believed that the test the court enunciated nearly a half-century ago better protects the privacy interest of citizens in the face of advancing technology. By reverting to the language of trespass, the court this week took a step back when it could have taken a bold step forward. Moreover, by failing to engage the admittedly “thorny” question of whether the monitoring of the GPS device alone violated Mr. Jones’ constitutional rights, the court missed a momentous opportunity to speak clearly in a brave [...]]]> I must respectfully disagree with a recent post by Renee Hutchins on our blog about the recent U.S. Supreme Court case, United States v. Jones.    She concludes:

With full knowledge of this history, the Jones decision should give us pause. It is widely believed that the test the court enunciated nearly a half-century ago better protects the privacy interest of citizens in the face of advancing technology. By reverting to the language of trespass, the court this week took a step back when it could have taken a bold step forward. Moreover, by failing to engage the admittedly “thorny” question of whether the monitoring of the GPS device alone violated Mr. Jones’ constitutional rights, the court missed a momentous opportunity to speak clearly in a brave new world.

Although it is true that the majority opinion is narrow, the concurring opinions indicate five votes for a broader more progressive view of the Fourth Amendment, one which breaks from some of the Court’s antiquated notions of privacy. When I read Jones, I see cause for celebration rather than disappointment.

I have long argued that the Court has failed to understand that aggregated pieces of information can together upend expectations of privacy. See Privacy and Power 1434-35 (2001), The Digital Person 44-47 (2004), Understanding Privacy 117-21 (2008).  I have also critiqued what I call the “secrecy paradigm” where the Court has held that privacy is only invaded by revealing previously concealed information.  See The Digital Person 42-44 (2004), Understanding Privacy 106-12 (2008).  I have argued that privacy can be invaded even by public surveillance.  More recently, in Nothing to Hide 178 (2011), I argued:

The problem with the secrecy paradigm is that we do expect some degree of privacy in public.  We don’t expect total secrecy, but we also don’t expect somebody to be recording everything we do. Most of the time, when we’re out and about, nobody’s paying any special attention to us. We do many private things in public, such as buy medications and hygiene products in drug stores and browse books and magazines in bookstores. We expect a kind of practical obscurity—to be just another face in the crowd.

In Justice Alito’s concurring opinion, he seemingly recognizes both of the concept of aggregation and the fact that the extent of the surveillance matter more than merely whether it occurs in public or private:

Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.  But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.  For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.

Justice Sotomayor discusses this passage with approval in her concurrence, indicating five votes for this view.  Indeed, she would go even further than Justice Alito.

I see profound implications in Jones for the future direction of the Fourth Amendment and privacy law more generally.  I explain this in detail in a recent essay, United States v. Jones and the Future of Privacy Law: The Potential Far-Reaching Implications of the GPS Surveillance Case, Bloomberg BNA Privacy & Security Law Report (Jan. 30, 2012).  From the essay:

The more contextual and open-ended view of privacy articulated by Justice Alito has five votes on the Court.  This is a sophisticated view of privacy, one that departs from the antiquated notions the Court has often clung to.  If this view works its way through Fourth Amendment law, the implications could be quite profound.  So many of the Court’s rationales under the reasonable expectation of privacy test fail to comprehend how technology changes the dynamic of information gathering, making it ruthlessly efficient and making surveillance pervasive and more penetrating.  We might be seeing the stirrings of a more modern Fourth Amendment jurisprudence, one that no longer seems impervious to technological development.

I continue:

Jones has implications that extend far beyond the Fourth Amendment.  A considerable amount of common law, statutes, and policymaking – as well as federal constitutional law in other areas and state constitutional law – looks to Fourth Amendment jurisprudence for guidance about what constitutes privacy.  Foreign law also is influenced by this jurisprudence.  A new direction in the Court’s thinking when it comes to privacy will likely have effects on this law, opening the door to more progressive and nuanced conceptions of privacy.

Courts have long clung to the antiquated notions that the Court has articulated, failing to see privacy in public places, viewing information exposed to others as no longer private, and so on.  I have referred to this view as the “secrecy paradigm” – the notion that a privacy violation occurs only when something completely hidden is revealed.For example, tort privacy cases involving surveillance in public have often failed because courts have concluded that there was no invasion of privacy.

Will the recognition by five justices that long-term surveillance can constitute a privacy violation even in public change other areas of law?  I think it might.  Will other courts and legislatures begin to recognize that aggregating small details about a person’s behavior over the course of time might upend expectations of privacy?  I believe so.  A majority of justices on the Supreme Court are willing to break away from the secrecy paradigm, and this fact is significant enough to spark considerable rethinking about privacy in many areas of law.

In Katz, the majority opinion was important, but the greatest impact stemmed from the Justice Harlan’s concurring opinion.  The same might be true for Jones.

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. [...]]]> Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.

Conundrum, 96 Minn. L. Rev. 584 (2011).

Cross-posted at Info/Law.

In Jewel v. NSA, the 9th Circuit concluded that plaintiffs had standing to raise constitutional challenges against NSA telephone surveillance:

At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.  In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury.

In In re NSA Telecommunications Litigation, the 9th Circuit held that § 802 of the [...]]]> The 9th Circuit has decided a pair of cases involving the NSA Surveillance Program.

In Jewel v. NSA, the 9th Circuit concluded that plaintiffs had standing to raise constitutional challenges against NSA telephone surveillance:

At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.  In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury.

In In re NSA Telecommunications Litigation, the 9th Circuit held that § 802 of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1885a (the FISA Amendments
Act) is constitutional.  The Act retroactively immunized telecommunication companies for cooperating with the NSA.

You also might be interested in my concise guide to privacy law, also with Paul Schwartz, entitled Privacy Law Fundamentals.   This short book was published earlier this year.  You can order it on Amazon or via IAPP.  It might make for a useful reference tool for students.

The Stanford Law Review Online has just published a piece by M. Ryan Calo discussing the privacy implications of drone use within the United States. In The Drone as Privacy Catalyst, Calo argues that domestic use of drones for surveillance will go forward largely unimpeded by current privacy law, but that the “visceral jolt” caused by witnessing these drones hovering above our cities might serve as a catalyst and finally “drag privacy law into the twenty-first century.”

Calo writes:

In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones [...]]]>

The Stanford Law Review Online has just published a piece by M. Ryan Calo discussing the privacy implications of drone use within the United States. In The Drone as Privacy Catalyst, Calo argues that domestic use of drones for surveillance will go forward largely unimpeded by current privacy law, but that the “visceral jolt” caused by witnessing these drones hovering above our cities might serve as a catalyst and finally “drag privacy law into the twenty-first century.”

Calo writes:

In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones threaten our dwindling individual and collective privacy. But unlike the debates of recent decades, I think these arguments will gain serious traction among courts, regulators, and the general public.

Read the full article, The Drone as Privacy Catalyst by M. Ryan Calo, at the Stanford Law Review Online.

Here’s the agenda.

The event will be webcast here.

My earlier post about the case is here.

On its face, the D.C. Circuit opinion appears to clash with the Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983), where the police installed a much simpler tracking device (referred to as a “beeper”) to a person’s car.  The Court concluded that the Fourth Amendment did not apply to the beeper because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”

The D.C. Circuit distinguished Knotts because there, the [...]]]> In United States v. Jones, FBI agents installed a GPS tracking device on Jones’ car and monitored where he drove for a month without a warrant.  Jones challenged the warrantless GPS surveillance as a violation of the Fourth Amendment.  The D.C. Circuit agreed with Jones.

On its face, the D.C. Circuit opinion appears to clash with the Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983), where the police installed a much simpler tracking device (referred to as a “beeper”) to a person’s car.  The Court concluded that the Fourth Amendment did not apply to the beeper because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”

The D.C. Circuit distinguished Knotts because there, the Supreme Court noted that the surveillance was limited and explicitly noted that more pervasive surveillance might be treated differently.   As the Court in Knotts stated that “if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”

The Supreme Court will determine if it agrees with this theory.   The Court has long held that there is no expectation of privacy in public.  This view has been frequently criticized as failing to recognize that people enjoy much practical obscurity in public and pervasive monitoring will dramatically undermine this obscurity.  Will the Court revisit its view about the lack of privacy in public given the changing capabilities of technology?

If the Court were to conclude that the Fourth Amendment required a warrant for GPS surveillance, it would have to define a coherent line between when a person in public has an expectation of privacy and when a person lacks such an expectation.  Such a line would be challenging to draw.

If extreme enough, quantitative differences can become qualitative differences.  But how does one articulate this into a workable approach in the law that isn’t too vague and mushy?

I was speaking with Peter Swire recently, who said that in order to convince the Court to draw such a line, it would be helpful for scholars to propose a workable test or approach for the Court to use.  I think he’s right.  So here’s my stab at it.

The Fourth Amendment applies to a surveillance technology used in public if the surveillance technology: (1)  extends significantly beyond human capabilities; and (2) is used in a manner beyond its ordinary use by the general public.

Let’s see how this might work with a few examples:

1. Flashlight.  A flashlight provides illumination where ordinarily humans might not be able to see.  But its ordinary or intended use is to allow people to see things in the dark, so it wouldn’t be covered by the Fourth  Amendment.

2. Thermal Sensors as Used in Kyllo.  The use of thermal sensors to detect heat patterns in the home would be regulated by the Fourth Amendment.  My approach would create a more sensible rationale than that used in Kyllo v. United States, 533 U.S. 27 (2001) (whether the technology is in general public use).  Thermal sensors are in general public use, but they are not ordinarily used to spy into people’s homes.

Applying this approach to GPS, the technology can track people much more pervasively than regular stakeouts or  following them around.   It thus extends significantly beyond human capabilities.  The general public does not use GPS as a way to track people’s movements.   They use it as a way to find places and navigate while driving.  Therefore, the police use of GPS to place a person under surveillance would be covered by the Fourth Amendment.  Knotts could be distinguished because the beeeper wasn’t as pervasive and thus could be argued not to have extended significantly beyond human capabilities.

I don’t agree with the reasonable expectation of privacy approach to the Fourth Amendment, but if the Court is going to stick with this approach and try to fit GPS surveillance within its existing caselaw, then the above test will hopefully be consistent enough with the Court’s caselaw and more coherent than the tests previously articulated by the Court.

[O]n this flight she was sitting by chance in a row with two Indian-looking passengers, neither of whom knew the other or knew her. But collectively they aroused the suspicion of other passengers or crew, and when the plane landed, heavily armed troops stormed aboard, handcuffed the three of them, and took them off for extensive questioning. After which they were eventually released with “no charges filed.” Which is fair enough, considering that [...]]]> You may have heard about “multiple passengers holed up in the bathroom” of a plane flying on Sunday, which “led to F-16s shadowing . . . it [as it] neared Detroit.” Turns out that the false alarm was sparked by a “half-Arab and half-Jewish” woman who sat between two South Asian passengers:

[O]n this flight she was sitting by chance in a row with two Indian-looking passengers, neither of whom knew the other or knew her. But collectively they aroused the suspicion of other passengers or crew, and when the plane landed, heavily armed troops stormed aboard, handcuffed the three of them, and took them off for extensive questioning. After which they were eventually released with “no charges filed.” Which is fair enough, considering that like everyone else on the plane they were simply trying to travel from Denver to Detroit and had done absolutely nothing wrong except to have “suspicious” looks.

Here is her first-hand account:

Someone shouted for us to place our hands on the seats in front of us, heads down. The cops ran down the aisle, stopped at my row and yelled at the three of us to get up. “Can I bring my phone?” I asked, of course. What a cliffhanger for my Twitter followers! No, one of the cops said, grabbing my arm a little harder than I would have liked. He slapped metal cuffs on my wrists and pushed me off the plane. The three of us, two Indian men living in the Detroit metro area, and me, a half-Arab, half-Jewish housewife living in suburban Ohio, were being detained.

The cops brought us to a parked squad car next to the plane, had us spread our legs and arms. Mine asked me if I was wearing any explosives. “No,” I said, holding my tongue to not let out a snarky response. I wasn’t sure what I could and could not say, and all that came out was “What’s going on?”. . . .

What is the likelihood that two Indian men who didn’t know each other and a dark-skinned woman of Arab/Jewish heritage would be on the same flight from Denver to Detroit? Was that suspicion enough? Even considering that we didn’t say a word to each other until it became clear there were cops following our plane? Perhaps it was two Indian man going to the bathroom in succession?

Combine this with Vance Gilbert’s “flying while black” story, and any number of others, and you do have to wonder about how easily the racialized paranoia of a few can be given the full backing of the government (if only for a few hours of fright for the victim while he or she is cleared). Having recently looked into some aspects of the surveillance state, I have to wonder: do these incidents generate secret “Suspcious Activity Reports” for the publicly vindicated victims? Are they a mark against them in some undisclosed TSA or fusion center databases? The FBI justified its Detroit action by stating “The public would rather us err on the side of caution than not.” Is there any way for targeted minorities to assure that the public’s irrational discrimination is not empowered and advanced by law enforcers who are willing to “see something” when anyone “says something?”

The more disruptive the disenfranchised become, the more they provoke harsh responses from authorities, thus worsening their already marginal position. By contrast, finance and government elites have positioned themselves to gain from whatever risks they shift onto society at large, via bailouts, emergency powers, and the revolving door. As Ross Douthat observed, [...]]]> Bernard Harcourt has analyzed new forms of radicalism adopted by the most and least privileged. Umair Haque at the Harvard Business Review has also identified dispositions shared by street looters and certain elites. As the chief political commentator at London’s Daily Telegraph has observed, “The moral decay of our society is as bad at the top as the bottom.” Yet there are very different consequences for each group’s transgressions.

The more disruptive the disenfranchised become, the more they provoke harsh responses from authorities, thus worsening their already marginal position. By contrast, finance and government elites have positioned themselves to gain from whatever risks they shift onto society at large, via bailouts, emergency powers, and the revolving door. As Ross Douthat observed, “The economic crisis is producing consolidation rather than revolution, the entrenchment of authority rather than its diffusion, and the concentration of power in the hands of the same elite that presided over the disasters in the first place.”

Rather than being grateful for public subvention, Wall Street demands even lower tax rates and less monitoring. At least in the US, this “revolt of the elites” is more of a menace to social order than the type of mass protests against inequality and corruption now sweeping India, Israel, Spain, Chile, and many other countries. Whereas the poor are swiftly punished for disruptions, the worried wealthy‘s initiatives for not-so-creative destruction are self-reinforcing.

1) From risk shift to capital strike: Jacob Hacker’s book The Great Risk Shift described forty years of policies designed to shift risk away from corporations and government and onto individuals. For millions of workers, 401(k) plans replaced defined benefit pensions. In 1979, 82% of impoverished families got TANF benefits; thirty years later, only 27% do. During the Bush Administration, there was even a vogue for “health savings accounts” to replace defined health benefits. Current GOP presidential contenders are upping the ante, attacking Medicare and Social Security, and proposing the replacement of traditional unemployment insurance with “personal accounts.” These policies and proposals all shift the risk of sudden accidents, a frail old age, child poverty, and economic slumps onto the vulnerable themselves, rather than their employers, or the larger polity.

Austerity for the poor and middle classes is only one half of the risk shift. It helps pay for lavish backing of connected companies. The same groups that benefit most from tax cuts financed by a gutting of the safety net are also pushing for “certainty” in their business ventures. Just as capital is taxed preferentially, so too must its owners’ ventures receive subsidies. Lionized on the pages of Forbes or Fast Company for “taking risks,” Wall Street’s favorite executives often avoid them at all costs. Derivatives are a favorite way of engineering away uncertainty. They do business with “too big to fail” banks, secure in the knowledge that taxpayers are on the hook if anything goes awry. Big investors, too, are keen on loan guarantees and other state “givings.” And that is just the beginning of the “certainty” they’ve been demanding, and getting, as Yves Smith argues:

Businesses have had at least 25 to 30 years near complete certainty — certainty that they will pay lower and lower taxes, that they will face less and less regulation, that they can outsource to their hearts’ content (which when it does produce savings, comes at a loss of control, increased business system rigidity, and loss of critical know how). They have also been certain that unions will be weak to powerless, that states and municipalities will give them huge subsidies to relocate, that boards of directors will put top executives on the up escalator for more and more compensation because director pay benefits from this cozy collusion, that the financial markets will always look to short term earnings no matter how dodgy the accounting, that the accounting firms will provide plenty of cover, that the SEC will never investigate anything more serious than insider trading (Enron being the exception that proved the rule).

As Smith notes, now many of the same corporations “have played their cost-focused business paradigm out.” It turns out that the same workers pressed to the wall for concessions happen to be customers, too, and they can’t pay for goods and services like they used to. (As the Wall Street Journal puts it: the same “lucky duckies” who are too poor to pay taxes can’t even go on their “dollar store splurges” any more.) The obvious macroeconomic prescription is for the state to tax those who are doing well, in order to pay for relief, recovery, and reform. But that isn’t happening, either.

Rather, the power groups that dominate the US Congress, Presidency, and courts believe that only private investment can lead to more growth. The problem is that most of those capable of investing now have so much money that they don’t need to earn anything from it. It’s a capital strike against anything but a “sure thing.” Many corporations are also cutting and hoarding. That’s a brilliant strategy for CEO’s, who may need just a few years at the top to accumulate a massive fortune.

The role of money in an economy is like that of blood in a body—it has to circulate to keep the entity that contains it alive. When a tremendous amount pools in one place, other parts suffer. Redistribution of income is vital to the health of American capitalism. Its decline presages a different type of economy on the horizon.

2) Doom Loops: So why isn’t anyone doing anything about this? Some brave protesters in India and Israel provide a model response to their own countries’ inequalities. As Rana Dasgupta notes, “taxpaying professionals working 70-hour weeks now compete unhappily for urban space with massively wealthier and more powerful businessmen and bureaucrats whose sources of wealth are opaque and, on the face of it at least, too effortlessly acquired.” “Opaque” turns out to be a bit of a euphemism:

After independence in 1947 . . . [f]ortunes were accumulated to be spent on property – in India and elsewhere – or stored abroad. The globalisation of the Indian economy in the 1990s only expanded the opportunities for this corrupt . . . entrepreneurial class. “Big-ticket” deals multiplied, much as they did in Russia during the same period: businesses became involved in a scramble for the ownership of basic resources previously controlled by the state – land, mines, oil, mobile telephony spectrums etc – and this only the political class could endow.

The seamless integration of political elites with executives in finance, real estate, extractive industries, and communications is a feature of many so-called “free market” economies. But, as Harcourt notes, social disturbances in the US, Spain, and Britain have too often been unmoored from any positive political vision for change. And the most aggressive protests have themselves become the target of popular ire, rather than the conditions that sparked them.

Meanwhile, at the top of society, reckless behavior is rewarded time and again. Looting is an established business strategy, unpunished by authorities who appear far more interested in getting their own opportunity to loot rather than exposing malfeasance. Peter Boone and Simon Johnson describe how a “doomsday cycle” of privatized gains and socialized losses continues to this day:

[M]ajor private sector firms (banks and nonbank financial institutions) have a distorted incentive structure that encourages eventually costly risk-taking. Unfortunately, the measures taken in various US and European bailout rounds during 2008-2009 (and again in 2010 for the eurozone) have only worsened, and extended to far more entities, these underlying moral hazard incentive problems. . . .

This cycle of boom followed by bailouts and bust amounts to a form of implicit taxpayer subsidy that encourages individual institutions to become larger – and the system as a whole to swell. Our preparation to bail out their creditors means systemic institutions are able to raise finance cheaply in global markets. The implicit subsidy to creditors encourages greater debt, which makes the system ever more precarious.

Years after the financial crash, the chief perpetrators—be they foolish, negligent, or purposefully fraudulent—are wealthier than ever. And they continue to push for liquidationist measures that force lower living standards onto workers and citizens, rather than investment in a positive-sum future for all. In case of peak oil, today’s smart investment is to buy oil futures, rather than invest in a green energy startup. If effortless grabbing of a larger share of a shrinking pie is a bit more profitable than long-term investment to shift out the production possibilities frontier, Mr. Market endorses it. Each year, our brightest business school graduates vote with their feet: thousands opt for the financial alchemy behind a quick buck, while far fewer take part in the hard work of creating a sustainable future.

3) Expect More Stability: Several analysts have argued that the resulting flow of incomes away from the bottom 90% (whose income has gone up 1% in real terms since 1980) and toward the top 1% (which has enjoyed a nearly fourfold increase in income, with much higher gains for those in the top 0.1 and 0.01%) will generate social unrest in the US. I doubt this. First, as Dan Ariely has shown, not many people actually understand how unequal our society is. Second, our media is profoundly uninterested in discussing issues of equity or opportunity. Rather, it has bought, hook, line, and sinker, the Pete Peterson-sponsored message of endless austerity for the middle and lower classes. Third, US authorities are getting more creative in defusing protests, in actions that even a leading libertarian advocate of the First Amendment applauds for targeting “the bad people.”

Finally, and most importantly, technologies of surveillance have made dissent more costly. Sarah Jaffe has explained the consequences of the application of military-grade technology on the homefront:

As a burgeoning international protest movement takes shape, opposing austerity measures, decrying the wealth gap and rising inequality, and in some cases directly attacking the interests of oligarchs, we’re likely to see the surveillance state developed for tracking “terrorists” turned on citizen activists peacefully protesting the actions of their government. And as U.S. elections post-Citizens United will be more and more expensive, look for politicians of both parties to enforce these crackdowns. Despite growing anger at austerity in other countries, those policies have been embraced by both parties here in the States.

Citron & I have discussed several aspects of this phenomenon, including domestic intelligence collection about political action, and problematic collaborations between state and corporate “law enforcers.” Add into the mix the growing power of entities that secretly generate reputational data about individuals, and you have a variety of “chilling effects” on political activism that challenges inequality in the US. Meanwhile, the Bush-Obama war on whistleblowers has demonstrated the dangerous consequences of trying to publicize misuses of that technology. The end result is a mass “learned helplessness,” as the very idea of collective action becomes a bitter joke to a critical mass of the populace.

I only mean to predict increased stability within the US. Elsewhere, food scarcity (including that induced by our own wasteful energy use) is likely to wreak havoc. Complexity theorists in MIT’s Technology Review predict that, “If we don’t reverse the current trend in food prices, we’ve got until August 2013 before social unrest sweeps the planet.” Fortunately, the food stamps program in the US appears to have enough support from large agricultural interests to preserve it here.

History teaches that the great change agents in our society lost dozens of times before finally making a positive and lasting mark in law. As Harcourt notes, we could stay in the eye of this storm for a long time. Electoral politics, our traditional venue for gradual and constructive public investment, has been deeply corrupted by mass distraction and targeted influence. It will take years, and perhaps decades, of work to restore a party system that rewards politicians for addressing the real economic and environmental needs of their constituents. The best public intellectuals can do is follow the example of the minds who brought us to the present impasse: namely, to develop a “Mt. Pelerin Society” for those who actually believe there is such a thing as society.

Note: Given my title, I should acknowledge that Christopher Lasch identified a “Revolt of the Elites” 15 years ago.

Photo Credit: SEIU Int’l.

1) Campaign Finance Disclosures: Regardless of ideology, almost everyone used to agree that campaign funding sources and amounts should be disclosed. 92% of Americans had that position in 2010. Justice Scalia has eloquently insisted that such disclosure laws violate no one’s rights. But thought leaders in the Republican party are now vigorously resisting disclosure, as Norm Ornstein observes:

The 2010 mid-term elections showed clearly how legal loopholes involving non-profit groups called 501(c)4s, [...]]]> Three remarkable recent lobbying campaigns go beyond the normal bounds of partisan sniping over “markets vs. regulation.” They threaten our capacity to understand how society is ordered: whom it serves, for what purposes, and at what costs. Consider these attacks on basic disclosure norms in politics and business:

1) Campaign Finance Disclosures: Regardless of ideology, almost everyone used to agree that campaign funding sources and amounts should be disclosed. 92% of Americans had that position in 2010. Justice Scalia has eloquently insisted that such disclosure laws violate no one’s rights. But thought leaders in the Republican party are now vigorously resisting disclosure, as Norm Ornstein observes:

The 2010 mid-term elections showed clearly how legal loopholes involving non-profit groups called 501(c)4s, and the failure to adopt clear regulations surrounding campaigns, can result in hundreds of millions of dollars of spending to influence campaigns that masked the identity of huge donors. In response to these realities, the Federal Communications Commission is considering requiring robust disclosure by TV stations of the major donors of political ads; the Securities and Exchange Commission is considering requiring public corporations to disclose to stockholders their spending on politics, and the White House has drafted an executive order to require companies applying for federal contracts to disclose their spending on political campaigns. . . .

Last month, Mitch McConnell [said] he views disclosure as “a cynical effort to muzzle critics of this administration and its allies in Congress.” . . . The Wall Street Journal’s full-throated support for transparency has disappeared as well; it blasted the FCC recently for considering requiring TV stations to put donors of campaign spots on the Internet . . .

John Yoo has also joined the debate, arguing that presidential power stops just short of the prerogative to require federal contractors to disclose their political donations.

2) Conflict Mineral and Extractive Industry Disclosures: One of the surprising victories for decency in the Dodd-Frank Act last year was a provision requiring certain disclosures from mining and resource extraction companies, and companies using “conflict minerals” from in or around the Congo. If you’re a consumer with preferences for certain industrial processes (say, those that don’t create incentives for rape, murder, and starvation), you want to be able to see which companies are fueling conflict and corruption and which are not. But intense corporate pressure is now delaying the rulemaking process needed to implement the disclosure provisions. According to Gerry Fay, “it is estimated that going ‘conflict free’ would cost companies just one penny per product.” But apparently that is too high a price to end corporate complicity in one of Africa’s bloodiest wars.

3) CEO Pay Ratio: The Dodd-Frank Act also promises to shed some sunlight on ever-rising CEO pay levels. As Sam Pizzigatti explains, “corporations must now also report their overall wage ‘median’ and the ratio between this median and their top pay.” Seizing on some laughable comments on how “unduly burdensome” the law is, “the House Financial Services Committee’s Capital Markets Subcommittee [recently] approved, by a vote of 20 to 12 . . . legislation (H.R. 1062) to repeal the Dodd-Frank pay ratio mandate.” As one commenter put it on the Facebook page of the legislation’s sponsor, Nan Hayworth, “What is wrong with forcing [companies] to tell us how the executives are being compensated? It’s hardly a ‘burden.’”

It would be easy to give many more examples of recent efforts to gut funding for research and disclosure. This most minimal tool of regulation—a speck of hope at the bottom of a Pandora’s Box of laissez-faire—is under assault. What’s the rationale?

Benkler on the Distinction between Privacy and Nondisclosure

Perpetrators of injustice always want to hide it. Videophones may “offer[] a modicum of equity and justice to the ordinary man who can now hold his phone aloft to capture police brutality and send it to Youtube.” But structural violence is often done more secretly, and can be hidden for surprisingly long periods of time. For example, a large employer might forbid employees from even talking to each other about their salaries, so women can’t find out if they’ve been discriminated against. It can also delay public criticism of meager wages if it can avoid publishing its median compensation levels.

Manufactured doubt delays political action. Whole industries specialize in the cultural production of ignorance. Endless disputes about the nature of our social order tend to aid those in power. I have previously critiqued Wikileaks, but I found this item of social theory from Julian Assange clarifying:

There [is] not enough information available in our common intellectual record to explain how the world really works. . . . There are three types of history. Type one is knowledge. Its creation is subsidized, and its maintenance is subsidized by an industry or lobby: things like how to build a pump that pumps water, how to create steel and build other forms of alloys, how to cook, how to remove poisons from food, etc. But because this knowledge is part of everyday industrial processes, there is an economy that keeps such information around and makes use of it. So the work of preserving it is already done. . .

[A] second type of information no longer has an economy behind it. It has already found its way into the historical record through a state of affairs which no longer exists. So it’s just sitting there. It can be slowly rotting away, slowly vanishing. Books go out of print, and the number of copies available decreases. But it is a slow process, because no one is actively trying to destroy this type of information.

And then there is the type-three information that is the focus of my attention now. This is the information that people are actively working to prevent from entering into the record. Type-three information is suppressed before publication or after publication. If type-three information is spread around, there are active attempts to take it out of circulation. Because the[] first two pillars of our intellectual record either have an economy behind them, or there are no active attempts to destroy them, they do not call to me as loudly. But, this third pillar of information has been denied to all of us throughout the history of the world. So, if you understand that civilized life is built around understanding the world, understanding each other, understanding human institutions and so forth, then our understanding has a great hole in it, which is type-three history.

Of course, anyone who’s worked as an attorney knows that it’s important to respect rights to privacy, and so does Assange: Wikileaks itself operates according to a strict NDA. A growing movement urging a “right to be forgotten” is to be commended for expanding those rights in some contexts. These developments may confound those who insist on absolutely open or closed systems as hallmarks of consistency. But Assange’s sophisticated defenders, like Yochai Benkler, are working toward a balance of interests in the information environment:

[P]rivacy is at risk when there are powerful observers and vulnerable subjects. Transparency, by contrast, involves disclosure of information about powerful parties that weaker parties can use to check that power or its abuse. When we say that an act of information disclosure “threatens privacy” or “promises transparency,” we are making a judgment about who has power and who is susceptible to it and how that power ought to be limited. The demise of privacy is already built into the structure of the commercially owned and operated Net. We have already made that “choice,” at least in the sense of being socially and politically passive at crucial moments in the 1990s and early 2000s when key decisions were made. The technologies and practices epitomized by WikiLeaks serve as a compensating overlay on that privacy-denying platform.

Enormously powerful computing systems now aid corporations and law enforcement agencies in their quests for prediction and control. They could also accomplish the disclosure functions mentioned above. The question now is whether we, as a society, are as committed to the transparency project (“disclosure of information about powerful parties that weaker parties can use to check that power or its abuse”) as “we” have been to the privacy-destroying aspects of internet intermediaries that endlessly track and profile their users. It’s not surprising that resource extraction companies, big campaign donors, and CEOs are vigorously fighting disclosure. Occasionally inequality and abuse become so grotesque that they can’t be defended; they can only be hidden.

Photo Credit: Ninja M.

“If you’ve got nothing to hide,” many people say, “you shouldn’t worry about government surveillance.” Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this important book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so. The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and [...]]]> I’m pleased to announce the publication of my new book, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY (Yale University Press, May 2011).  Here’s the book jacket description:

“If you’ve got nothing to hide,” many people say, “you shouldn’t worry about government surveillance.” Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this important book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so. The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. Why can’t we have both?

In this concise and accessible book, Solove exposes the fallacies of many pro-security arguments that have skewed law and policy to favor security at the expense of privacy. Protecting privacy isn’t fatal to security measures; it merely involves adequate oversight and regulation. Solove traces the history of the privacy-security debate from the Revolution to the present day. He explains how the law protects privacy and examines concerns with new technologies. He then points out the failings of our current system and offers specific remedies. Nothing to Hide makes a powerful and compelling case for reaching a better balance between privacy and security and reveals why doing so is essential to protect our freedom and democracy.

This book grows out of an essay I wrote a few years ago about the Nothing-to-Hide Argument.   The essay’s popularity surprised me and made me realize that there is a hunger out there for discussions about the arguments made in the debate between privacy and security.

The primary focus of NOTHING TO HIDE is on critiquing common pro-security arguments.  I’ve given them nifty names such as the “Luddite Argument,”the “War-Powers Argument,” the “All-or-Nothing Argument,” the “Suspicionless-Searches Argument,” the “Deference Argument,” and the “Pendulum Argument,” among others.  I also discuss concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.

For years, the National Highway Traffic Safety Administration has declined to post on its Web site reports from automakers about problems with their cars and about specialized warranty extensions that could save consumers large sums on repairs. . . . The technical service bulletins . . . provide information on unusual problems with vehicles . . . . Special service campaigns are a form of technical service bulletin that often tell dealers of warranty extensions for particular repairs. “Many manufacturers have asserted that technical service bulletin information is copyrighted and will not waive those copyrights,” [said] an agency spokeswoman . . . [...]]]> Two items of note on this topic recently. First, the NYT reports on NHTSA’s lazy approach to IP overreach by automakers:

For years, the National Highway Traffic Safety Administration has declined to post on its Web site reports from automakers about problems with their cars and about specialized warranty extensions that could save consumers large sums on repairs. . . . The technical service bulletins . . . provide information on unusual problems with vehicles . . . . Special service campaigns are a form of technical service bulletin that often tell dealers of warranty extensions for particular repairs. “Many manufacturers have asserted that technical service bulletin information is copyrighted and will not waive those copyrights,” [said] an agency spokeswoman . . . . “N.H.T.S.A. has a legal obligation to abide by copyright law.”

NHTSA could easily excerpt the gist of bulletins as fair use. Or it could communicate facts in them without using any of the actual language or diagrams they contain. Anyone who has taken a week of copyright knows about the idea/expression or fact/expression dichotomy. But copyfraud obfuscates this obvious workaround.

Second, ongoing legal battles over Toyota’s sudden acceleration incidents may lead to “security measures typically reserved for classified government secrets:”

The fight centers on access to Toyota’s source code, the software that controls sophisticated engine management and other electronics in its vehicles. Plaintiffs’ attorneys believe the code might contain evidence that could bolster their cases. The Japanese auto maker has been fighting to restrict access to the software, saying it needs to protect what it calls the “crown jewel” of its global enterprise.

Toyota said the attorneys should only be allowed to view parts of the code in a highly secure room, the likes of which is used by members of Congress or in trials against terrorists and spies for viewing classified information.

As I note in the piece, this kind of “qualified transparency” will become more and more common in tech disputes. Debates about “channeling” innovation protection (to patent or trade secret law) will increasingly need to take into account how patent law’s disclosure function could help more people understand potentially dangerous products.

The book explains the major provisions of all of the major privacy statutes, regulations, cases, including state privacy laws and FTC enforcement actions. It provides numerous charts and tables summarizing the privacy statutes (i.e. statutes with private rights of action, preemption, and liquidated damages, among other things). Topics covered include: the media, domestic law enforcement, national security, government records, health and genetic data, financial information, consumer data and business [...]]]> Professor Paul Schwartz (Berkeley School of Law) and I recently published a new book, PRIVACY LAW FUNDAMENTALS.  This book is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases.

The book explains the major provisions of all of the major privacy statutes, regulations, cases, including state privacy laws and FTC enforcement actions. It provides numerous charts and tables summarizing the privacy statutes (i.e. statutes with private rights of action, preemption, and liquidated damages, among other things). Topics covered include: the media, domestic law enforcement, national security, government records, health and genetic data, financial information, consumer data and business records, government access to private sector records, data security law, school privacy, employment privacy, and international privacy law.

This book provides an concise yet comprehensive overview of the field of privacy law for those who do not want to labor through lengthy treatises.  Paul and I worked hard to keep it under 200 pages — our goal was to include a lot of information yet do so as succinctly as possible.   PRIVACY LAW FUNDAMENTALS is written for those who want a handy reference, a bird’s eye view of the field, or a primer for courses in privacy law.

We wrote this book to be a useful reference for practitioners — ideally, a book they’d keep at the corner of their desks or in their briefcases.

We also think it can serve as a useful study aid for students taking privacy law courses.

You can check it out here, where you can download the table of contents.

We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the [...]]]> The U.S. Supreme Court has decided NASA v. Nelson, reversing the 9th Circuit 8-0.  My thoughts about the case are here and here, and as I predicted, the Court rejected the 9th Circuit holding that the government employment background check questionnaires violated the constitutional right to information privacy.  Fortunately, the Court kept its opinion narrow and didn’t use it as an opportunity to wipe out the constitutional right to information privacy, a right that the Court mentioned just a few times but that has taken on more of a life in the circuit courts.  According to the Court:

We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen, supra, at 599, 605.

Concurring in the judgment, Justice Scalia (joined by Justice Thomas) would have happily axed the right:

I would simply hold that there is no constitutional right to “informational privacy.” . . . . The Court’s sole justification for its decision to “assume, without deciding” is that the Court made the same mistake before—in two 33-year-old cases, Whalen v. Roe, 429 U. S. 589 (1977), and Nixon v. Administrator of General Services, 433 U. S. 425 (1977). . . . It is unfathomable why these cases’ passing, barely explained reference to a right separate from the Fourth Amendment—an unenumerated right that they held to be not applicable—should be afforded stare decisis weight.

I have little else to say about the case that I haven’t already said in my previous posts other than to reiterate my relief the Court kept its decision narrow.  I believed from the beginning that this case was doomed because the constitutional right to information privacy focuses on preventing unwarranted disclosures not on restricting the collection of information via questionnaires.