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Category: Privacy

4

Using Cell Phones to Catch Speeders

speeding-cartoon1.jpgA glimpse into the not-too-distant future . . .

You’re driving along the highway. There is only light traffic on the road, and there’s not a cop in sight. You decide to give in to that dastardly rebel within and go 10 miles over the speed limit. You get to your destination without incident, a few minutes early. The sun is shining in the sky; there’s not a cloud in sight. It’s a happy day. Life is good.

But then a few weeks later, you discover that the day wasn’t as cheery as you had thought. That’s because you were caught for speeding that day. Your ticket arrives in the mail. But there were no police officers along the route, no speed traps, no surveillance cameras. How did you get caught?

You were ratted out, betrayed by a traitor in your car. No, not a secret agent, not a rat, not a mole. Instead, it was something you trusted the most, an inseparable companion . . . it was your cell phone.

According to the AP:

Driving to work with your cell phone on, you notice the traffic beginning to slow down. Instantly and unbeknown to you, the government senses your delay and flashes a traffic congestion update over Web sites and electronic road signs.

Other motorists take heed, diverting to alternative routes or allowing more time for their trips.

Futuristic as it might seem, the scenario actually is pretty close to becoming reality.

In what would be the largest project of its kind, the Missouri Department of Transportation is negotiating with private contractors to monitor thousands of cell phones, using their movements to produce real-time traffic conditions on 5,500 miles of roads statewide.

Cell phone users won’t even know anyone’s watching them. But transportation and technology leaders assure there is no need to worry – the data will remain anonymous, leaving no possibility of tracking specific people from their driveway to their destination.

I have a quote in the story, but I’m not saying anything really profound, so I won’t bother excerpting it.

Since there is no tracking that can be linked to identifiable people, the cell phone tracking described by the article appears to pose little of a privacy concern. However, it isn’t too hard to imagine in the future new ways that these devices can be used. Previously, I blogged about how cell phones can function as an RFID device to track people’s movement. With the technology described in the AP article, it doesn’t seem far-fetched to imagine cell phones being used to determine a driver’s rate of speed. Would there be a problem if cell phones were used as a way to nab speeders?

This raises another question regarding the enforcement of the law. When we devise ways to more perfectly enforce laws such as speeding, is this desirable? To keep this post from getting too long, I will explore this question in a separate post.

79

The Airline Screening Playset: Hours of Fun!

After blogging a few weeks ago about the airline screening playset, I went ahead and ordered one.

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Each day, I would check my mailbox, eager with excitement about its arrival. Today, it finally arrived. I rushed to open it and began what would be hours of exciting play. Here’s what came in the playset:

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I was a bit disappointed in the toy’s lack of realism. There was only one passenger to be screened. Where were the long lines? The passenger’s clothing wasn’t removable for strip searching. The passenger’s shoes couldn’t be removed either. Her luggage fit easily inside the X-ray machine. There were no silly warning signs not to carry guns or bombs onto the plane. And there was no No Fly List or Selectee List included in the playset.

Another oddity was that the toy came with two guns, one for the police officer and one that either belonged to the X-ray screener or the passenger. The luggage actually opened up, and the gun fit inside. I put it through the X-ray machine, and it went through undetected. Perhaps this is where the toy came closest to reality.

The biggest departure from reality was that the passenger had a cheery smile on her face.

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To make the toy more realistic, I required the passenger to show her ID, which she didn’t have. Indeed, the playset didn’t come with an ID card, so it wasn’t the passenger’s fault. But I had the screener cheerfully deny her the right to board the plane. Ha!

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But she still had that silly smile.

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I wasn’t ready to give up, however, so I decided to have her searched from head to toe with the magnetic wand.

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But she still had that smile.

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2

Hurricane Katrina and Credit Scores

creditscore1.jpgBob Sullivan at MSNBC writes:

A second storm surge may soon start slamming into Gulf coast residents hit by hurricanes Katrina and Rita. Mounting unpaid bills will lead to a surge of black marks on victims’ credit reports, say consumer advocates, sinking their credit scores. And now, they say, efforts to convince the nation’s credit bureaus to develop new systems to account for victims’ temporary bill-paying troubles have hit a major snag.

Consumers who can’t make their house payments any more – even if that house has been completely swept away by the storm – may face the ultimate penalty in America’s credit-driven society: A credit score so low they won’t qualify for the loans they need to start rebuilding.

Consumer groups, anticipating the coming surge of late payments and account defaults, have asked credit bureaus to help. The consumer groups proposed that the bureaus take a pre-Katrina credit score snapshot of all residents in the affected areas. Later, when victims apply for loans, the pre-Katrina score could be used to identify whether victims were good credit risks before the storm.

This sounds like a sensible proposal, something that will help the survivors of the hurricane rebuild their lives. After all, without good credit, it is much more costly to take out a loan, and sometimes nearly impossible to get a loan or credit.

Fair Issac, the company that creates the formula for generating credit scores supports this proposal. The credit reporting agencies, however, won’t have any of it:

But on Thursday, consumer groups revealed that the nation’s three bureaus – Experian, Trans Union, and Equifax – have declined to participate in the plan.

The reasons are:

A second score likely wouldn’t comply with parts of the Fair and Accurate Credit Transaction Act, the firm indicated in a letter sent to Consumers Union.

Equifax’s David Rubinger said the presence of a second score could create confusion both for lenders and consumers. Also, credit bureaus and lenders sometimes use alternate scoring systems, he said, so a snapshot FICO score would be of little use to those lenders.

First of all, I’m not familiar with a provision of the Fair Credit Reporting Act (FCRA) that would prohibit reporting a second score. If there is something in the law that prohibits reporting another score, then Congress should make an exception for victims of certain sudden catastrophes.

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7

The Blog Impersonators

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Harriet Miers, as my co-blogger Kaimi pointed out, is the first Supreme Court Justice nominee to have her own blog – Harriet Miers’s Blog!!! Her first entry:

OMG I CAN’T BELIEVE I’M THE NOMINEE!!!

This is BIGGEST DAY OF MY LIFE!!! EVER!!!!

OMG OMG OMG

Needless to say, it’s a fake. And so is a blog called Luttig’s Lair purportedly written by Judge J. Michael Luttig.

Anyone can sign up on a free blogger platform, such as Blogger, and create a blog. In anybody’s name. In your name. You might have a blog and not even know about it.

The Miers and Luttig blogs are quite funny because everybody knows they’re phony. But it is easy to imagine a case where reality and parody are not so readily discernable. What’s to stop me from creating a blog by you? (Don’t even think of vice-versa!)

The law provides at least two potential remedies. One is the tort of libel, which provides for damages when a person publishes falsehoods that damage the reputation of another. This wouldn’t apply to Miers because the blog is an obvious parody – no reasonable person would think it were true.

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13

Airport X-Ray Peep Shows

x-ray2.jpgAccording to the New York Times, the TSA is moving closer to deploying a new kind of X-ray machine at airports, one that sees through people’s clothing:

Among the most controversial technology being looked at by the Transportation Security Administration is the backscatter body scanner. The device – a boxy contraption that beams low-level X-rays through people’s clothing – has received a lot of attention because of the explicit images of passengers’ bodies it can produce.

This summer, for instance, Lori Borgman, a family humor columnist, wrote that such images were “bound to find their way to the break room, the Internet and the tabloids.” The American Civil Liberties Union has called the backscatter a “virtual strip search.”

As a result, the Transportation Security Administration has approached the deployment of the machines tentatively over the last several years. “I think that as we make the decision to roll out and go to pilot tests and move forward, we need to be sure we’re doing it in a responsible manner,” said the agency’s chief technology officer and assistant administrator, Clifford Wilke. “A person’s first experience with a new technology will determine their perception.”

But there are signs that the T.S.A. is preparing to make its move. The agency said it did not have a specific timeline, but statements made in early August by the two manufacturers of the technology – American Science and Engineering and Rapiscan Systems, a division of the OSI Systems electronics company – indicated that the plans could be made public within the next two months.

Does this technology establish the appropriate balance between privacy and security?

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5

A Victory for Anonymous Blogging

anonymity2.jpgAnonymous bloggers received a great victory this week in a case decided by the Delaware Supreme Court — Doe v. Cahill (Oct. 5, 2005). The case involved John Doe, who anonymously posted on a blog statements about Patrick Cahill, a City Councilman of Smyrna, Delaware. Doe, in criticizing Cahill’s job performance, noted that Cahill had “obvious mental deterioration” and was “paranoid.” Cahill sued Doe for defamation.

Doe was anonymous, but his IP address could be linked to his postings, and Cahill sought to obtain Doe’s identity from Comcast, Doe’s ISP. Comcast notified Doe that Cahill was seeking his identity, and Doe immediately went to court to prevent the disclosure of his identity. The case reached the Delaware Supreme Court, which concluded that Cahill should not be permitted to obtain Doe’s identity.

The issues in this case are very important. Many of you comment here anonymously; and many comment anonymously on other blogs. Some have anonymous blogs, such as the person pretending to be Supreme Court nominee Harriet Miers on a blog or the pseudonymous “Article III groupie,” who maintains the famous blog, Underneath Their Robes. EFF has produced a manual about how to blog anonymously.

What if your identity – and those of the Miers impersonator and Article III groupie — could readily be unmasked?

The First Amendment provides for a right to speak anonymously. It does so because without anonymity, people might be chilled in saying certain things. But what happens when anonymous speakers defame people or invade their privacy? Those injured people should be able to sue. This issue has been a difficult one for courts, which have tried to balance a person’s free speech rights to speak anonymously with the injured plaintiff’s rights to proceed with a lawsuit.

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0

Now Auditioning for the Next Star Wars Kid

starwars3.jpgHave you been craving your 15 minutes of infamy? Are you not even qualified enough to make it onto reality TV? Well, you’re in luck. There’s a way for you to become a star after all. As this article explains:

Internet media outlets are striving to discover the next quirky or gripping low-budget online video so they can drive consumer demand for multimedia, bring in advertising or licensing dollars, and put their own video search engines and archives on the map.

But talent–like the 15-year-old “Star Wars” fan who inadvertently became an Internet star when a video of him staging a mock light saber battle found its way online–can be hard to find. And studios and broadcasters have yet to make much content available online due to piracy fears.

That’s why portals like Yahoo and Google, as well as start-ups such as Grouper and Veoh Networks, are attempting to create a new kind of social network. They want everyone–from upcoming filmmakers to artistic nobodies–to film videos, upload them to the Web, and let the masses decide what’s worth watching and what’s not.

The Star Wars Kid video became an Internet sensation. People from around the world downloaded it millions of times. The video was remixed with sound effects and music; and countless versions of it were created.

So pick up that video camera and channel your favorite Star Wars character. Your star on the Internet Walk of Fame awaits.

As the article notes, Internet media executives are feverishly discussing how to create compelling content that will draw large audiences like the Star Wars Kid video. That is the big question — not just for video. We here at Concurring Opinions are trying to create good content and develop an enormous audience so we can sell ads and get filthy rich. We need you to visit often and spread the word about Concurring Opinions to your friends. If you don’t, we might have to release the videos of Kaimi’s training to be a Jedi Knight.

Hat tip: Bruce Boyden

0

Snooping Landlords and the War on Terrorism

home-snoop2.jpgIn this interesting AP article, a man won an invasion of privacy lawsuit when his property manager searched his home and reported to the FBI that there were terrorist materials in the apartment. FBI officials detained, fingerprinted, and handcuffed the man, but eventually determined that the man wasn’t a terrorist:

A federal jury awarded an Egyptian-born radiologist nearly $2.5 million for invasion of privacy after a property manager searched his apartment and called police on Sept. 11, 2001.

After four days of deliberations, the jury issued the award Thursday to Basem M.F. Hussein, saying the invasion of his privacy was made with “malice of reckless indifference” to his rights.

Sherri Lynn Wilson had entered Hussein’s apartment in Coraopolis the day of the attacks to replace furnace filters, according to testimony. She told the FBI she saw Arabic literature, an airplane flight manual, a compact disc jacket that showed an exploding airplane, and chemical residue she believed to be from bomb-making activities.

What she actually saw was a popular flight simulator computer game and its CD jacket, which did not depict an exploding airplane, Hussein’s attorney said. The purported Arabic literature was an English version of the Koran; the chemical residue was household dust.

Hussein was awarded $850,000 in compensatory damages and $1.6 million in punitive damages.

3

Why Volokh Is Wrong on Public Records and the First Amendment

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In an interesting and thoughtful post, Eugene Volokh (law, UCLA) takes issue with California’s Megan’s Law, Cal. Penal Code § 290.46(j), which places personal data about sex offenders on the Internet yet restricts the uses of this data. The law allows people to use the information “only to protect a person at risk.” It prohibits the use of the information for, among other things, purposes related to insurance, loans, credit, employment, benefits, and housing.

Volokh writes:

So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one’s purpose is “only to protect a person at risk.” If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people — not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person — one risks damages liability or an injunction.

Seems like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it’s unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I’d think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record. But it seems that California weighs the privacy of public-record information about sex criminals more heavily than its law-abiding citizens’ constitutionally protected free speech.

I disagree with Volokh on both legal and policy grounds. Regarding the law, Florida Star restricts liability for disclosing information after the government has made it public. However, in Los Angeles Police Department v. United Reporting Publishing Co., 528 U.S. 32 (1999), the Supreme Court concluded that the government may selectively grant access to public record information. A California law required those seeking access to records of arrestee information to promise that the data should not be used for commercial solicitation purposes. The Supreme Court concluded that the law was not “prohibiting a speaker from conveying information that the speaker already possesses” but was merely “a governmental denial of access to information in its possession” under which it had no duty to disclose.

The Court has thus created a distinction between pre-access conditions on obtaining information and post-access restrictions on the use or disclosure of the information. A law cannot establish a post-access restriction on the use of information that is publicly available. Once the information is made available to the public, Florida Star prohibits a state from restricting use.

But pre-access, the government can establish conditions upon which access is granted. In a way, this sets up a contract-like situation. The government supplies people with information if they agree to use it only in certain ways. This is similar to when the government offers other benefits and specifies how they should be used. There are some limits — the unconstitutional conditions doctrine — but these limits have generally not been very restrictive.

Regarding policy, I believe that information use restrictions are a terrific way to balance the government’s making information publicly available and protecting privacy. Otherwise, the government is caught in a difficult zero-sum trade-off between public access to information and privacy. To protect privacy, governments would have to restrict the disclosure of the information entirely, but this would make less data available to the public. With use restrictions, such as those in the California Megan’s Law, the government can make the information available to protect people but can limit uses that do not further this purpose. This can prevent undue discrimination against those sex offenders who have been released from prison and who are trying to rehabilitate themselves.

I could go on for much longer, but I’ve sketched out the basic point. If you want to read a more detailed argument, check out this article, this article, and my book, The Digital Person.

6

Do Traffic Cameras Work?

trafficcam.jpgThe answer appears to be no – at least according to one study in DC. According to a Washington Post article:

The District’s red-light cameras have generated more than 500,000 violations and $32 million in fines over the past six years. City officials credit them with making busy roads safer.

But a Washington Post analysis of crash statistics shows that the number of accidents has gone up at intersections with the cameras. The increase is the same or worse than at traffic signals without the devices.

Three outside traffic specialists independently reviewed the data and said they were surprised by the results. Their conclusion: The cameras do not appear to be making any difference in preventing injuries or collisions.

“The data are very clear,” said Dick Raub, a traffic consultant and a former senior researcher at Northwestern University’s Center for Public Safety. “They are not performing any better than intersections without cameras.” . . . .

The Post obtained a D.C. database generated from accident reports filed by police. The data covered the entire city, including the 37 intersections where cameras were installed in 1999 and 2000.

The analysis shows that the number of crashes at locations with cameras more than doubled, from 365 collisions in 1998 to 755 last year. Injury and fatal crashes climbed 81 percent, from 144 such wrecks to 262. Broadside crashes, also known as right-angle or T-bone collisions, rose 30 percent, from 81 to 106 during that time frame. Traffic specialists say broadside collisions are especially dangerous because the sides are the most vulnerable areas of cars. . . .

The results were similar or worse than figures at intersections that have traffic signals but no cameras. The number of overall crashes at those 1,520 locations increased 64 percent; injury and fatal crashes rose 54 percent; and broadside collisions rose 17 percent.

Hat tip: EPIC West Blog