Category: Privacy

5

Subways, Searches, and Slippery Slopes

police-search.jpgThe gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself.

I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims. So I’ll attempt to clear up any confusion as to my positions and try to defend my turf.

1. I’m not a privacy absolutist. If I were, I wouldn’t even be speaking about whether the subway searches were effective or not, as it would be irrelevant.

2. I am not arguing that we’re on a slippery slope toward totalitarianism. I am arguing that the “show of force” that Jason extols is something that totalitarian societies do, and it has effects on shaping people’s attitudes and their sense of freedom. It has “expressive” content. My argument is not that we’re going to quickly slide down the slope to Big Brother. Rather, my argument is that the searches and other displays of force Jason speaks about are similar tactics to those used in totalitarian societies. They won’t necessarily make us into such a society, but they do introduce different elements into our own society that will have some effect. Allowing police to search people as they travel about the city, without any suspicion of wrongdoing, is a significant change in the tone and tenor of life in NYC. Although this will not lead to the government’s installing telescreens into people’s homes anytime soon, the subway search policy isn’t a trivial initiative. Nor are the other displays of force Jason speaks about. They affect the very atmosphere in which we live.

3. I did not invoke Korematsu to suggest that we’re on a slippery slope to internment. I invoked it to suggest that it involves the same arguments and logic of deference. The point is that the government officials were wrong with regard to the Japanese Internment, and perhaps this should serve as a lesson to courts that government officials do not always know better. It also demonstrates the lengths to which the government can go when security is threatened. I raise Korematsu not as a slippery slope problem but as a cautionary tale that in the face of security threats, the government (and the population at large) can make rash and unwise decisions. This is a reason why courts shouldn’t defer but should keep a very critical eye on the policies adopted by the government in times of crisis.

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12

Rational Security vs. Symbolic Security

cartoon-security1b.bmpSo much for concurring opinions . . . I’ve been attacked by not only one co-blogger, but two. Earlier on, I posted a critique of the court’s decision upholding the NYC subway searching policy against a Fourth Amendment challenge.

Jason Mazzone argues that I’m ignoring a key benefit of the search policy:

The overriding goal of all of these efforts is prevention. The police are no longer charged simply with responding to crimes that have occurred. To succeed, they must stop terrorist attacks before they occur.

The City has taken the view, reasonable in my opinion, that prevention is aided by demonstrating on a regular basis the power of the City’s security forces. Such a demonstration combines awe with surprise.

First, I question whether such demonstrations of force are likely to deter the terrorists, who continually seek to infiltrate the hardest of targets rather than the unfortified ones. The terrorists focus a lot on airplanes, where the security is rather tight compared to many other tragets. So I wonder whether such demonstrations of force really deter terrorists. Perhaps the show of force gives people a sense of security, which, although illusory, is nevertheless comforting. But if this is the goal, should it be a legitimate government policy to create an illusion?

Jason’s argument reminds me of the armed military personnel patrolling airports after 9/11 with machine guns. The guns were unloaded, and the troops were there primarily as symbols of strength. All this cost money, money that wasn’t spent on addressing the real vulnerabilities of air travel. I guess the question is whether it is better to have rational security or symbolic security. My vote is for rational security.

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5

Wiki Thyself

wikipedia3.jpgIn a recent incident on Wikipedia, Adam Curry, a former MTV VJ, was accused of editing an entry on Wikipedia on podcasting to enhance his role in the origins of podcasting. According to a CNET article:

Essentially, Curry is accused of anonymously editing out information in the article that discusses some others’ roles in the creation of the technology while at the same time pumping up his own role.

In particular, he was said to have entirely deleted sections of the article, which addressed innovations originally talked about by Technorati principal engineer Kevin Marks.

“At the first Harvard BloggerCon conference,” in 2003, the original Wikipedia language began, “Kevin Marks demonstrated a script to download RSS enclosures to iTunes and synchronise them onto an iPod, something Adam Curry had been doing with Radio Userland and Applescript.”

But then an anonymous user–who was traced back to Curry via the IP address–deleted the Marks section.

According to another CNET article, Curry believed that the information he deleted was wrong. It wasn’t, and Curry admitted making a mistake. The CNET article raises the issue of whether people should be permitted to create or edit entries on issues where they have a personal interest:

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3

Curtailing Anonymity at Wikipedia

Wikipedia.jpgA few days ago, I blogged about an incident involving a defamatory biography on Wikipedia about John Seigenthaler Sr. According to a New York Times story:

The whole nonprofit enterprise began in January 2001, the brainchild of Jimmy Wales, 39, a former futures and options trader who lives in St. Petersburg, Fla. He said he had hoped to advance the promise of the Internet as a place for sharing information.

It has, by most measures, been a spectacular success. Wikipedia is now the biggest encyclopedia in the history of the world. As of Friday, it was receiving 2.5 billion page views a month, and offering at least 1,000 articles in 82 languages. The number of articles, already close to two million, is growing by 7 percent a month. And Mr. Wales said that traffic doubles every four months.

Still, the question of Wikipedia, as of so much of what you find online, is: Can you trust it?

According to the article, Wales is planning to address these problems:

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15

NYC Subway Searches Upheld: A Critique of the Court’s Decision

nyc-subway-search2.jpgIn a recently issued opinion, Judge Berman of the U.S. District Court for the Southern District of New York upheld New York’s subway searching policy. Back in July, New York began randomly searching people’s bags at NYC subways. I criticized the policy:

It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.

This landed me in a debate with co-blogger Dave Hoffman, with Hoffman’s views here and my reply here.

Now, in response to an ACLU challenge under the Fourth Amendment, District Court Judge Richard Berman concludes that the policy is constitutional. The court analyzes the checkpoints under a “reasonableness” balancing test, in which the governmental interest is weighed against the invasion of privacy. But in doing so, the court begins by already tilting the scale toward the government’s side — even before the balancing has begun:

Because the threat of terrorism is great and the consequence(s) of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know. (See Pre-Trial Amici Brief, at 14 (“[I]t would be inappropriate for courts to second-guess the judgments of law enforcement and other public officials who are charged with protecting the public and making difficult choices of resource allocation.”).)

I believe that this deference is inexcusable. The courts are charged with determining the constitutionality of the search policy, which depends upon reasonableness. The reasonableness of the policy, of course, depends upon balancing the efficacy of the searches against their intrusiveness, and if the court defers to the government in this regard, it is essentially rubber-stamping the goverment in this determination.

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1

I can’t drive (over) 55.

Canada is testing technlogy that will make it difficult or impossible to speed:

The system being tested by Transport Canada, the Canadian equivalent of the U.S. Department of Transportation, uses a global positioning satellite device installed in the car to monitor the car’s speed and position. If the car begins to significantly exceed the speed limit for the road on which it’s travelling the system responds by making it harder to depress the gas pedal, according to a story posted on the Toronto Globe and Mail’s Website.

This seems wrong on so many levels it’s hard to list them all. It is very much within a nebulous zone as far as privacy. It is a very troubling kind of search-and-seizure (with immediate sanctions). It vastly increases the power of the nanny state, all to add a negligible benefit. (Oooh! People will be driving no more than 25 in a 25 zone! That’s high on my priority list! We can catch terrorists later.)

Worse, I have to wonder about the inevitable mistakes that will creep in. What happens when a software bug turns the freeway into a 35 zone? And how will a population of hanicapped cars mesh with the population of unhanicapped cars?

Finally, this one-size-fits-all solution ignores the very real instances in which speeding is acceptable. The system leaves no room for the proverbial rush-to-the-hospital-she’s-having-a-baby. Other medical emergencies are likewise ignored. If my wife or child is bleeding in the back seat with a severe wound, or suffering a seizure, or burning with a 106 degree fever, you had better believe I’ll be speeding.

Maybe even worse, this opens some drivers up to be easier targets for criminal activity. If I’m driving a handicapped car in a rough part of town or a sparsely-used section of highway, I may be targeted by carjackers or worse, who will know that I can’t simply put pedal to the metal to escape them. If they drive old-fashioned un-handicapped cars (which can exceed the speed limit, while I can’t), then I’ll be easy prey. (Would I have a claim against the government?)

All in all, it seems like a change that introduces an awful lot of negatives, just to cut down on speeding.

11

Telling Tales Out of School: When Principals Out Their Students

school2.jpg

From the New York Times:

In a case involving a California high school girl who was openly gay at school, a federal judge has ruled that the girl, Charlene Nguon, may proceed with a lawsuit charging that her privacy rights were violated when the principal called her mother and disclosed that she is gay.

Ms. Nguon filed suit in September after a year of run-ins with Ben Wolf, the principal of Santiago High School in Garden Grove, Calif., over her hugging, kissing and holding hands with her girlfriend. Ms. Nguon was an all-A student ranked in the top 5 percent of her class, with no prior record of discipline. But last year, after Mr. Wolf said he wanted to separate her from her girlfriend, she transferred to another school. Her grades slipped, and her commute grew from a four-block walk to a four-and-a-half mile bike ride.

Judge James V. Selna of the Central District Court of California ruled Monday that Ms. Nguon had “sufficiently alleged a legally protected privacy interest in information about her sexual orientation.”

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0

ChoicePoint Wants Your Motor Vehicle Records

choicepoint2.jpgFrom the LA Times:

In recent months [ChoicePoint] has been meeting with officials of the California Department of Motor Vehicles in an effort to add the state’s nearly 30 million vehicle registration records to its existing database of 19 billion nuggets of personal information — a hoard that is already the biggest in the industry.

ChoicePoint says it requested the DMV records for a client, the U.S. Department of Homeland Security. That suggests it may ask the state to waive the normal fee of 10 cents per record, or about $3 million. By state law, government agencies can access DMV records for free.

The article has some interesting facts about ChoicePoint’s prior accessing of DMV records from other states:

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2

Sex + Open Window = Photos + Internet

camera3a.jpgA simple equation of modern life. This story has an interesting set of ingredients: sex photos, privacy, email, websites, and free speech. From the Chronicle of Higher Education:

The University of Pennsylvania has charged at least one student with sexual harassment and misuse of electronic resources after he posted pictures on the Internet that show students apparently having sex while standing beside a large window in one of the university’s high-rise dormitories.

Pictures of the nude students were taken by more than one photographer. The images made the rounds through e-mail messages and various Web sites, and at least one of the photographers posted the pictures on his personal Penn Web site at the end of September. Pictures taken by a different photographer were posted, and widely viewed, on collegehumor.com.

Although the subjects’ faces are not clearly seen in the photographs, Penn students eventually found out who they were. At least one of the students in the pictures filed a sexual-harassment complaint with the university’s Office of Student Conduct, naming the student who posted the images on his Penn Web site.

Student-conduct officials completed their investigation early in November. They recommended that the student, identified only as a junior majoring in engineering, write a letter of apology, write an essay explaining why what he did was wrong, and be placed on disciplinary probation until graduation, a penalty that would create a permanent record of the incident.

Those coming to the defense of the student note that the couple was having sex in public view and wasn’t entitled to privacy and that the University’s attempt to sanction the student was chilling of free speech.

According to another article, the University subsequently dropped the charges against the student, but still noted that it strongly disapproved of the student’s behavior.

Thanks to Orin Kerr for pointing out this story.

10

Fake Biographies on Wikipedia

Wikipedia.jpgMost of us would be quite flattered to find an entry about us on the Wikipedia, an online encyclopedia where anybody can create or edit an entry. Not so for John Seigenthaler. His Wikipedia bio said:

John Seigenthaler Sr. was the assistant to Attorney General Robert Kennedy in the early 1960’s. For a brief time, he was thought to have been directly involved in the Kennedy assassinations of both John, and his brother, Bobby. Nothing was ever proven.

In a USA Today editorial Seigenthaler begins by quoting the false bio and then writes:

I have no idea whose sick mind conceived the false, malicious “biography” that appeared under my name for 132 days on Wikipedia, the popular, online, free encyclopedia whose authors are unknown and virtually untraceable. . . .

At age 78, I thought I was beyond surprise or hurt at anything negative said about me. I was wrong. One sentence in the biography was true. I was Robert Kennedy’s administrative assistant in the early 1960s. I also was his pallbearer. It was mind-boggling when my son, John Seigenthaler, journalist with NBC News, phoned later to say he found the same scurrilous text on Reference.com and Answers.com.

Seigenthaler explains how he tried to track down the person who posted the information:

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