Category Archives: Law: Privacy

Cops Push Citizen Self-Surveillance in Plea Bargains

You might be tempted to dismiss NY: Police are blackmailing motorists into installing cellphone monitoring devices as an aberrant act by local cops were it not sponsored by an international firm that supplies the monitoring technology.

As far as I can tell, the enforcement authority pushing the so-called ‘Distracted Driver Education Program’ (DDEP) is local Nassau County, not the ‘feds’ as reported in the article. “Blackmailing” also isn’t the word I would choose here, but by any standard it’s a pretty ferocious plea bargain deal.

Even more worrying, the attempt to find ways to get people to pay to spy on themselves and on others for the benefit of law enforcement echos this incident, Police Demand Shop Install Surveillance, Give Cops Full Feed, and also Right to Ban Customers, that I blogged about a month ago.

This is a trend that bears watching.

Posted in Law: Criminal Law, Law: Privacy, Surveillance | Leave a comment

Smart Dust

Oh joy. Smart Dust is the latest threat to privacy predicted in my The Death of Privacy? (2000), to become a near-reality.

In fact, it’s one of the last ones. Needless to say we did almost none of the stuff we needed to do to protect privacy in the intervening 16 years, so now we’re in a much much worse position. The next version of the article may not have a question mark.

Posted in Law: Privacy | 1 Comment

My New Paper May Make Some of My Friends Angry

Building Privacy into the Infrastructure: Towards a New Identity Management Architecture comes to what I fear some of my friends in the privacy community will find to be an unacceptable conclusion.

I’ll be presenting it at the Privacy Law Scholars Conference in Washington next week. Hopefully, since many attendees are in fact friends, they won’t bring brickbats.

Posted in Cryptography, Econ & Money, Law: Internet Law, Law: Privacy, Surveillance, Talks & Conferences | Leave a comment

Drone Debate

In a Wall Street Journal debate today I argue that drones should not be allowed to overfly private property without the inhabitant’s consent due to the privacy risks, the consequent erosion of the 4th Amendment, and other dangers. This echoes some of the arguments in Self-Defense Against Robots and Drones, the recent Connecticut Law Review article I wrote with Zak Colangelo.

Ryan Calo gives the other side, arguing that overflights should be allowed in order to spur innovation. I think the WSJ sees him as the Bolshevik here, as they sum up the debate like this:

A. Michael Froomkin, the Laurie Silvers and Mitchell Rubenstein distinguished professor of law at the University of Miami School of Law, says that drones pose a huge threat to security and privacy, and that property owners should be able to keep them from flying over their land. Ryan Calo, an assistant professor of law at the University of Washington, says decisions about where and when drones can fly should be made collectively, not by individual landowners.

Who would have imagined I’d be the right-winger in a debate on the pages of the Wall Street Journal? I suspect that my former boss, Judge Stephen F. Williams, would be quite amused, although he’d probably describe it as vindication.

Posted in Law: Privacy, Robots, Surveillance | Leave a comment

Magistrate Judge Orenstein Rules for Apple

Magistrate Judge James Orenstein of the E.D.N.Y has issued a 50-page order in a case similar to the Apple v FBI case that has been in the news. In this case too, the government sought to have Apple defeat the passcode security limit on an iPhone so the government could extract the data pursuant to a valid search warrant.

The opinion is a slam-dunk win for Apple, rejecting the government’s All Writs Act (AWA) request on multiple grounds. Among them is that Apple does not meet the test in the leading Supreme Court precedent, New York Telephone due to Apple’s distance from the alleged crime and the burden to Apple of complying. There’s two constitutional arguments: one on separation of powers, that an absence of prohibition by Congress should not be treated as permission, and one on the implications of the government’s expansive view of the AWA, under which any of us could be conscripted to do things we might hate doing to help the government in investigations or worse. (Judge Orenstein gives the I hope extreme example of a drug company forced to produce an execution drug against its will if the government has no other source of supply.)

Apple also wins on discretionary grounds.

This opinion is a thoughtful and on just about all points persuasive work, and it should be influential as these cases trundle through the legal system.

Posted in Law: Constitutional Law, Law: Privacy | Leave a comment

On the Apple v FBI Case

Talking HeadThe government’s attempt to get Apple to build a bespoke operating system so they can brute force access to an iPhone without it erasing its data has led the media to some of us who were in the first round of the crypto wars. Today was my turn. A few seconds on CBS in the Morning, ink in a nice explainer by Steve Lohr in the New York Times. I also spoke to the LA Times and the Wall St. Journal, but I haven’t seen what if anything they made of it.

I presume they found me because I wrote the first US legal article on law and encryption: The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution. There’s also a shorter sequel that some find easier to read, It Came From Planet Clipper.

The Apple case potentially raises at least these major legal issues:

  1. To what extent the government can use the All Writs Act to compel people unrelated to a case to provide unwilling technical support–here, Apple says, 12-40 man-weeks of expert engineering–to the government’s efforts to disable a security system in order to effectuate a search warrant or similar court order;
  2. Whether ordering a firm to write code (here, a bespoke phone OS), is a form of compelled speech violating the First Amendment
  3. Whether ordering a firm to digitally sign that code (or anything else) is an impermissible form of compelled speech
  4. Whether if a court can issue this order requiring assistance to disable a security system without violating the Constitutions, it follows that Congress could also legislate to forbid people from building strong security systems that the government cannot break into unassisted — and, most critically, whether that would mean the government could forbid the deployment of strong cryptographic tools without back doors. (This last issue was the main subject of the two articles I linked to above. It’s not a simple question.)

Although the Apple issue likely will be decided on non-constitutional grounds, the parties are making a record on the constitutional issues with an eye to a set of appeals that could go as far as the Supreme Court. The issues are important and interesting, so the media is right to treat this as a big deal.

Posted in Cryptography, Law: Constitutional Law, Law: Criminal Law, Law: Privacy, The Media | 1 Comment