Category Archives: Law: Privacy

Surveillance and Resources

The St. Petersburg (FL) Times has a good story today by Jamal Thalji, Should authorities need a warrant to put a GPS tracking device on your car?.

I'm quoted towards the end:

Those conflicting rulings mean the U.S. Supreme Court will likely decide the issue.

The real issue is resources, said University of Miami law professor Michael Froomkin. When the courts first gave the government the right to remotely track suspects, no one thought they'd one day have the money or technology to do so constantly.

“There was an unstated assumption behind a great deal of Fourth Amendment jurisprudence in our history that says surveillance is expensive and therefore has natural limits,” he said. “That unstated assumption that people took for granted is no longer true.”

And therein, I think, lies the problem — we are working with doctrine that doesn't fit the new technical and economic realities.

Posted in Law: Privacy, The Media | 5 Comments

Nightline is Coming to Talk to Me

In a sign either that I'm getting stronger or that I'm nuts, I've agreed to be interviewed on camera by a crew from ABC's Nightline tomorrow a bit after class. They want to know about when it's OK to film and record people in public (and sometimes put it on YouTube).

Many states — including Florida — have two-party consent laws requiring that speakers agree to be recorded (one-party consent laws only require that the person doing the recording consent). Oddly, most of those states don't use a similar rule for photos or videos, most likely because many of these laws were drafted with wiretapping/phone recording in mind as the evil to be controlled; state public policy is/was that citizens have a reasonable expectation of privacy in their telephone communications. But no one was thinking about videos, perhaps because video equipment was exotic and expensive; allowing photos in public is also consistent with the “plain view” doctrines that apply in the context of police investigations.

But even on its own terms, the two-party consent rule runs into the First Amendment if the conversation is in a public place, and even more so if it is with a public official … say, a police officer. Conversely, there is also the issue of the citizen's privacy right if a third party (or the state) seeks to publish the recording. Currently common law privacy torts cover outrageous interference with privacy in public places, but these are very very limited circumstances such as accident victims speaking to first responders (medical privacy) or upskirt photos (legal pudeur). Only California has tried to legislate an anti-paparazzi rule, and even this is carefully circumscribed to avoid very real First Amendment concerns.

As for the photos, that's getting harder and harder too in the face of spurious claims of “security” and “anti-terrorism” that have been raised, usually arbitrarily and without actual legal authority, to prevent still photography of public buildings.

I gather the ABC cameras will also be visiting local celebrity photography-is-not-a-crime Carlos Miller.

The segment won't air for some time, though.

Posted in Law: Privacy, The Media | 2 Comments

Juror Privacy Issues

This angry dissent by Judge Posner in from denial of rehearing en banc in US v. Blagojevich discusses a number of very interesting issues relating to the release of juror names in a high-profile criminal trial.

I'm left thinking that Posner is right that the Easterbrook opinion he savages is a bad opinion, but I'm still torn on the underlying merits.

Update & Note: there seems to be no way to link directly to the opinion, as the 7th circuit website creates temporary URLs for each copy. So to read it, go to the US v. Blagojevich docket and find the per curiam opinion with dissent issued on 7/14/2010.

Posted in Law: Privacy | 2 Comments

Wikileaks 1.0 Is Dead

Cryptome reports Wikileaks Website to Be Abandoned.

There is talk, though, of a new Iceland-based site to be started without the original founder.

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FBI Wiretapping Scandal: Am I Reading this Right?

People who remember J. Edgar Hoover's FBI will not be surprised to read FBI broke law for years in phone record searches in today's Washington Post. The illegal searches were justified by fake emergencies. When an internal whistle blower started asking questions, they were justified by illegal (“blanket”) authorizations (the FBI used to accept that search authorizations, even retroactive emergency ones, must be justified in writing and particularized).

Nor will readers with any sense of history be surprised to learn that the FBI says there is nothing to worry about, move along:

FBI officials said they are confident that the safeguards enacted in 2007 have ended the problems.

However, readers who recall the Post when it was a newspaper will perhaps be a little startled that the Post keeps referring to the illegal requests and faked paperwork as “technical” violations of the law. Readers whose memory goes back to, oh, 1972, may also wonder how it is that this fact appears in the next-to-last paragraph of a fairly long story:

Among those whose phone records were searched improperly were journalists for The Washington Post and the New York Times, according to interviews with government officials.

And then there is this gem, which will startle all but the most harden cynic:

lawyers have now concluded there was no need for the after-the-fact approval process.

So, no paper trail next time! (Could this be the new procedures enacted in 2007?)

All that's left is the 5pm Friday night press release that an investigation has determined that no discipline is warranted … except maybe for the whistle blower.

Posted in Law: Privacy, National Security | 4 Comments

Privacy is More About Control than About Content

Does the latest silly PR campaign on Facebook tell us something about changing attitudes towards privacy? The viral campaign is to have women change their 'status' to a color — the color of their bra — ostensibly because this this will 'raise awareness' of breast cancer. I'll leave it to others to dissect the merits of the campaign. (Although this line is pretty good: Telling the world your bra color does not raise awareness of breast cancer. It raises awareness of your bra color.) What interests me is the privacy angle.

In Black and white and red all over – what do those bra-color facebook updates tell us about privacy?, Prof. Wenger argues that the right frame to think about the privacy issue is 'spheres':

A fundamental notion in privacy is the idea of different spheres. This can be described as the classic public/private spheres, …

… I wonder how to analyze the mass voluntary participation of thousands of people engaged in a group sharing of a highly intimate piece of information. This is being done by women, who are particularly vulnerable to privacy attacks (especially relating to their intimate lives). And remember, facebook’s privacy default status is now that updates are open to the world! It’s striking to see crowds happily helping to assemble their own digital dossiers.

Here at the fringes of the public sphere, we're into spheres, but I wonder if that's the very best way to think about it. That said, there's clearly something going on here. As noted by the BBC, How online life distorts privacy rights for all, routinized online disclosure of facts once seen as private can reinforce changing conceptions of what's public and what's private. (Assuming, that is, that people, and especially those now young, continue to collapse the psychological distance between the virtual and real. But, back to the BBC🙂

People who post intimate details about their lives on the internet undermine everybody else's right to privacy, claims an academic.

Dr Kieron O'Hara has called for people to be more aware of the impact on society of what they publish online.

“If you look at privacy in law, one important concept is a reasonable expectation of privacy,” he said.

“As more private lives are exported online, reasonable expectations are diminishing.”

If I were in a quibbling mood, I'd suggest that the online behavior is actually somewhat less significant than this suggests both because I think it reflects something going on anyway out in the regular world (“meetspace” or “meatspace”) and because I think for most people the privacy implications of adding color or phrase in a Facebook listing is much less than it seems.

But I think that the real issue is that this is the wrong tempest in the wrong teapot.

To me the significant aspect about the Facebook incident, and to a large extent the issues that the BBC news story discusses, is that people are posting items about themselves. They control what to release and, initially, where. They decide whether to tell the truth. Is Jane Doe really wearing a chainmail bra? To me, that assertion is much less of a privacy issue than if Richard Roe is secretly photographing Jane with an infrared detector. If Jane is bragging about her SCA chops or perhaps even making it all up, she's in control of her data, at least initially.

True, important issues do arise when the self-reported information is republished, packaged, re-used in ways that Jane doesn't expect (or, worse, had taken reasonable precautions to prevent), and these can be thorny problems. Nevertheless, in a First Amendment world where we protect the right to repeat of the truth, or what in good faith is reasonably believed to be the truth, many of these problems have an easy legal if sometimes uncomfortable social resolution.

No, the issues we should be worried about are involuntary or coerced exposure of personal data, including intimate information, not voluntary clothing self-disclosure. This is especially true in a world in which many people in the US are less in the thrall of nudity or partial nudity taboos than might have been the case fifty years ago (although I suspect there are many variations here by decade and nation), but other people both here and abroad remain very much concerned about body image privacy.

x-ray-specs.gifThus, rather than worry about self-reported textual color information on Facebook, I think privacy scholars and advocates should be thinking hard about a much more important real-world problem: whether the US and other governments are going to mandate digital strip-searches as a condition of air travel. Even if the 'option' of a full-body search exists, few will opt for it because it too is intrusive, and because there's no guarantee it won't be so slow as to result in a missed flight.

It seems to me that the intrusion into privacy is much more severe for those who experience having some stranger use real-life X-ray specs on them as an invasion of bodily privacy than anything anyone could ever do to themselves on Facebook. How the full-body scanners are implemented will effect the extent of the privacy problem; some have suggested, for example, that the people viewing the images might be off-site somewhere where they would not be able to see the subject of the scan (or, conveniently, vice-versa), and they would text or radio in the all-clear or not depending on what they saw. There are also issues as to what measures will prevent storing the images.

Anything that creates some distance will make linking pictures to people harder, but it won't make it impossible. And of course it is only a matter of time before some enterprising scanning agent figures out how to take pictures of a digitally nude celebrity and sell them to the highest bidder. Entrepreneurs take note: both celebritybodyscan.com and celebrityairportscan.com have already been registered.

We don't yet know the details of how TSA proposes to manage the new scanners, and it is not obvious that TSA will disgorge the information willingly, so it is good to see that the Electronic Privacy Information Center has filed a Freedom of Information Act lawsuit to try to get more information about the program. Unfortunately, I suspect that many of the most interesting parts about how the images will be handled will fall under FOIA exception (b) which protects from disclosure all information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and …are in fact properly classified pursuant to such Executive order.”

To me, privacy is not primarily about no one knowing things about me. Rather, it is about my ability to control what information I choose to make known about me and to whom, and to some degree to control — or in some circumstances at the very least stay informed — about the further sharing of that information. And that's why digital strip searches, a coerced privacy invasion by the government for what may or may not be a reasonable means to enhance the safety of all air travelers in the wake of the underwear bomber — seems a much bigger deal than self-reported possibly fictional underwear colors.

Posted in Law: Privacy | 1 Comment