Category: Privacy (Law Enforcement)

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10 Reasons Why Privacy Matters

Why does privacy matter? Often courts and commentators struggle to articulate why privacy is valuable. They see privacy violations as often slight annoyances. But privacy matters a lot more than that. Here are 10 reasons why privacy matters.

1. Limit on Power

Privacy is a limit on government power, as well as the power of private sector companies. The more someone knows about us, the more power they can have over us. Personal data is used to make very important decisions in our lives. Personal data can be used to affect our reputations; and it can be used to influence our decisions and shape our behavior. It can be used as a tool to exercise control over us. And in the wrong hands, personal data can be used to cause us great harm.

2. Respect for Individuals

Privacy is about respecting individuals. If a person has a reasonable desire to keep something private, it is disrespectful to ignore that person’s wishes without a compelling reason to do so. Of course, the desire for privacy can conflict with important values, so privacy may not always win out in the balance. Sometimes people’s desires for privacy are just brushed aside because of a view that the harm in doing so is trivial. Even if this doesn’t cause major injury, it demonstrates a lack of respect for that person. In a sense it is saying: “I care about my interests, but I don’t care about yours.”

3. Reputation Management

Privacy enables people to manage their reputations. How we are judged by others affects our opportunities, friendships, and overall well-being. Although we can’t have complete control over our reputations, we must have some ability to protect our reputations from being unfairly harmed. Protecting reputation depends on protecting against not only falsehoods but also certain truths. Knowing private details about people’s lives doesn’t necessarily lead to more accurate judgment about people. People judge badly, they judge in haste, they judge out of context, they judge without hearing the whole story, and they judge with hypocrisy. Privacy helps people protect themselves from these troublesome judgments.

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NSA Metadata Surveillance and the Fourth Amendment

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A U.S. District Court recently held that the NSA surveillance of telephone metadata likely violates the Fourth Amendment. The case is Klayman v. Obama.

The NSA surveillance program involves an incredibly broad gathering of metadata about people’s conversations. Metadata doesn’t include the conversations themselves, just data about when and to whom they are made — i.e., not the content of the phone conversations but the phone numbers of the people having the conversations.

The key Fourth Amendment case at issue is Smith v. Maryland, 442 U.S. 745 (1979), which held that a pen register device capturing the phone numbers a person dialed wasn’t protected by the Fourth Amendment partly because the phone company had access to the phone numbers and partly because phone numbers weren’t viewed to be as sensitive as the phone conversations themselves.

The court in Klayman has an interesting view of why Smith v. Maryland is no longer applicable. Essentially, the court argues that the pen register information the government could gather when Smith was decided is much different from the very broad systematic gathering of phone records today.

The Klayman court relies on the U.S. Supreme Court’s fairly recent decision in United States v. Jones, 132 S.Ct. 945 (2012), where five justices in concurrences noted that wide-scale extensive surveillance technologies have different implications than there older more limited counterparts. Jones involved GPS, and the Court there distinguished an earlier case involving a beeper device that tracked a car. In a concurring opinion, Justice Alito wrote that “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.”

I find much merit to the Klayman court’s analysis. I have long argued that Smith was wrongly decided, and not too long ago, I wrote here about why there are strong privacy interests in metadata.

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The NSA’s Santa Surveillance Program

I was able to obtain the latest National Security Agency (NSA) memo leaked by Edward Snowden.  I reprint it in full below.

TOP SECRET AND CLASSIFIED

THE NATIONAL SECURITY AGENCY

SANTA SURVEILLANCE PROGRAM (SSP)

 

Intelligence reports have indicated an alarming amount of chatter between citizens of the United States and a foreign organization with unknown whereabouts somewhere near the North Pole.  The organization is led by an elderly bearded cleric with the alias, “Santa.”

We have probable cause to believe that this “Santa” organization is providing material support to terrorist cells in the United States.  On numerous occasions, “Santa” has reportedly entered the country illegally by flying across the border in a stealth aircraft.  He delivers contraband to various enemy combatants who request weapons and other military vehicles and aircraft.

For example, the intercepted letter below is from an enemy combatant by the name of “Johnny Smith”:

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Another letter, written by enemy combatant “Mikey Brown” – an alias for Michael Brown – indicates a desire for a weapon of mass destruction called “the Death Star.”   Mikey is now being questioned at an unidentified secure location.

Santa has an army of followers who call themselves “elves” and who train in Santa’s camp.  We fear that these elves are highly radicalized.

Based upon a recent dramatic increase in chatter between the Santa organization and enemy combatants in the U.S., we will initiate a new surveillance program caked the “Santa Surveillance Program” (SSP).

We will monitor all communications by all people everywhere.  For minimization standards, we will limit our surveillance to human beings only and not include other life forms.

The SSP will be ongoing until “Santa” is terminated by a drone attack.

Cross-posted at LinkedIn

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On the NSA and Media Bias: An Extended Analysis

By Albert Wong and Valerie Belair-Gagnon, Information Society Project at Yale Law School

In a recent article in the Columbia Journalism Review, we reported that major US newspapers exhibited a net pro-surveillance bias in their “post-Edward Snowden” coverage of the NSA. Our results ran counter to the general perception that major media outlets lean “traditionally liberal” on social issues. Given our findings, we decided to extend our analysis to see if the same bias was present in “traditionally conservative” and international newspapers.

Using the same methods described in our previous study, we examined total press coverage in the Washington Times, one of the top “traditionally conservative” newspapers in the US. We found that the Washington Times used pro-surveillance terms such as security or counterterrorism 45.5% more frequently than anti-surveillance terms like liberty or rights. This is comparable to USA Today‘s 36% bias and quantitatively greater than The New York Times‘ 14.1% or the Washington Post‘s 11.1%. The Washington Times, a “traditionally conservative” newspaper, had the same, if not stronger, pro-surveillance bias in its coverage as neutral/”traditionally liberal”-leaning newspapers.

In contrast, The Guardian, the major UK newspaper where Glenn Greenwald has reported most of Snowden’s disclosures, did not exhibit such a bias. Unlike any of the US newspapers we examined, The Guardian actually used anti-surveillance terms slightly (3.2%) more frequently than pro-surveillance terms. Despite the UK government’s pro-surveillance position (similar to and perhaps even more uncompromising than that of the US government), the Guardian‘s coverage has remained neutral overall. (Neutral as far as keyword frequency analysis goes, anyway; the use of other methods, such as qualitative analysis of article tone, may also be helpful in building a comprehensive picture.)

Our extended results provide additional context for our earlier report and demonstrate that our analysis is “capturing a meaningful divide.”

On a further note, as several commenters suggested in response to our original report, the US media’s pro-surveillance bias may be a manifestation of a broader “pro-state” bias. This theory may be correct, but it would be difficult to confirm conclusively. On many, even most, issues, the US government does not speak with one voice. Whose position should be taken as the “state” position? The opinion of the President? The Speaker of the House? The Chief Justice? Administration allies in Congress? In the context of the Affordable Care Act, is there no “pro-state” position at all, since the President, the Speaker, and the Chief Justice each have different, largely irreconcilable views?

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Heads Up 3D Printing and more: The Georgetown Law Journal Volume 102 Symposium: “Law in an Age of Disruptive Technology”

Folks,

As you know Gerard and I have been working up our paper Patents, Meet Napster: 3D Printing and the Digitization of Things . It will be part of The Georgetown Law Journal Volume 102 Symposium: “Law in an Age of Disruptive Technology” which will take place on Friday November 8, 2013. There will be panels about driverless cars and mass surveillance as well. We hope to see many of you there. (RSVP at this link).

It is a great honor to be part of this lineup:

Keynote Address by Professor Neal Katyal

3-D Printing
Chaired by Professors Deven Desai and Gerard Magliocca

Driverless Cars & Tort Liability
Chaired by Professor Bryant Walker Smith

Mass Surveillance Technology
Chaired by Professor Christopher Slobogin

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Justice Sutherland on Wiretapping

As part of my ongoing research on George Sutherland, I came across an interesting passage in his dissent from United States v. Nardone.  Nardone was a 1936 case holding that the Communication Act of 1934, which prohibited employees from intercepting electronic communications, applied to wiretaps used by the FBI and other federal agents.  (This was a decision, BTW, that J. Edgar Hoover and Franklin Roosevelt largely ignored.)  Sutherland argued (for himself and McReynolds) that Congress did not intend to include criminal investigations in this statute, and concluded with this purple passage:

“My abhorrence of the odious practices of the town gossip, the peeping Tom, and the private eavesdropper is quite as strong as that of any of my brethren. But to put the sworn officers of the law, engaged in the detection and apprehension of organized gangs of criminals, in the same category, is to lose all sense of proportion. In view of the safeguards against abuse of power furnished by the order of the Attorney General, and in the light of the deadly conflict constantly being waged between the forces of law and order and the desperate criminals who infest the land, we well may pause to consider whether the application of the rule which forbids an invasion of the privacy of telephone communications is not being carried in the present case to a point where the necessity of public protection against crime is being submerged by an overflow of sentimentality.”

NSA Penalty Proposed

Readers suggested potential penalties for improper gathering or misuse of surveillance data last month.  As revelations continue, Congressmen have recently proposed some new ideas:

Rep. Mike Fitzpatrick (R-Pa.) proposed legislation . . .  that would cut National Security Agency (NSA) funding if it violates new surveillance rules aimed at preventing broad data collection on millions of people.

Fitzpatrick has also offered language to restrict the term “relevant” when it comes to data collection.  On the one hand, it seems odd for Congress to micromanage a spy agency.  On the other hand, no one has adequately explained how present safeguards keep the integrated Information Sharing Environment from engaging in the harms catalogued here and here. So we’re likely to see many blunt efforts to cut off its ability to collect and analyze data, even if data misuse is really the core problem.

Focusing on the Core Harms of Surveillance

CoreHarmsThe “summer of NSA revelations” rolls along, with a blockbuster finale today. In June, Jennifer Granick and Christopher Sprigman flatly declared the NSA criminal. Now the agency’s own internal documents (leaked by Snowden) appear to confirm thousands of legal violations.

Legal scholars will not be surprised by the day’s revelations, just as few surveillance experts were all that shocked by the breadth and depth of PRISM, PINWALE, MARINA, and other programs. Ray Ku called warrantless surveillance unconstitutional in 2010. Civil liberties groups and legal scholars warned us repeatedly about where Bush-era executive power theories would lead. As anyone familiar with Bruce Ackerman’s work might guess, pliable attorneys have rubber-stamped the telephony metadata program with a “white paper” that “fails to confront counterarguments and address contrary caselaw” and “cites cases that [are] relatively weak authority for its position.” There are no meaningful penalties in sight (perhaps because the OLC has prepared documents that function as a “get out of jail free” card for those involved).
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Letting the Air Out

The NSA and the rest of our surveillance state apparatus is shrouded in secrecy. As captured in Frank Pasquale’s superb forthcoming book, governmental surveillance is a black box. Gag orders prevent Internet companies from talking about their participation in PRISM; nearly everything revealing is classified; the Executive Branch is telling us half truths or no truths. To counter massive governmental overreach, Bradley Manning, Edward Snowden, and others have exposed some sunlight on our surveillance state. That sunlight isn’t coming from those who are betraying the country, but those who are trying to save it, at least that’s what many registered voters think. According to a Quinnipiac poll released today, American voters say “55 – 34 percent” that NSA consultant Edward Snowden is a “whistleblower rather than a traitor.” According to the assistant director of the Quinnipiac University Polling Institute, “Most American voters think positively of Edward Snowden,” at least they did before he accepted asylum in Russia. From July 28 to July 31, 1,468 registered voters were surveyed on the phone. These sorts of leaks seem inevitable, at least culturally given our so-called commitment to openness and transparency. The leakers/whistleblowers are trying to nudge the Executive Branch to honor its commitments to the Fourth Amendment, the sentiments of the Church Report, and the Administration’s 2009 Openness and Transparency memo. Let’s see if letting the air out moves us closer to the kind of country we say we are.

H/T: Yale ISP’s Christina Spiesel for the Quinnipiac Poll

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Predictive Policing and Technological Due Process

Police departments have been increasingly crunching data to identify criminal hot spots and to allocate policing resources to address them. Predictive policing has been around for a while without raising too many alarms. Given the daily proof that we live in a surveillance state, such policing seems downright quaint. Putting more police on the beat to address likely crime is smart. In such cases, software is not making predictive adjudications about particular individuals. Might someday governmental systems assign us risk ratings, predicting whether we are likely to commit crime? We certainly live in a scoring society. The private sector is madly scoring us. Individuals are denied the ability to open up bank accounts; they are identified as strong potential hires (or not); they are deemed “waste” not worthy of special advertising deals; and so on. Private actors don’t owe us any process, at least as far as the Constitution is concerned. On the other hand, if governmental systems make decisions about our property (perhaps licenses denied due to a poor scoring risk), liberty (watch list designations leading to liberty intrusions), and life (who knows with drones in the picture), due process concerns would be implicated.

What about systems aimed at predicting high-crime locations, not particular people? Do those systems raise the sorts of concerns I’ve discussed as Technological Due Process? A recent NPR story asked whether algorithmic predictions about high-risk locations can form the basis of a stop and frisk. If someone is in a hot zone, can that very fact amount to reasonable suspicion to stop someone in that zone? During the NPR segment, law professor Andrew Guthrie Ferguson talked about the possibility that the computer’s prediction about the location may inform an officer’s thinking. An officer might credit the computer’s prediction and view everyone in a particular zone a different way. Concerns about automation bias are real. Humans defer to systems: surely a computer’s judgment is more trustworthy given its neutrality and expertise? Fallible human beings, however, build the algorithms, investing them with bias, and the systems may be filled with incomplete and erroneous information. Given the reality of automated bias, police departments would be wise to train officers about automation bias, which has proven effective in other contexts. In the longer term, making pre-commitments to training would help avoid unconstitutional stops and wasted resources. The constitutional question of the reasonableness of the stop and frisk would of course be addressed on a retail level, but it would be worth providing wholesale protections to avoid wasting police time on unwarranted stops and arrests.

H/T: Thanks to guest blogger Ryan Calo for drawing my attention to the NPR story.