Tag Archives: Constitution

Privacy: Then and now

Americans value privacy. We close and lock our doors when we get home at the end of the day. We close the blinds when we change clothes so the neighbors can’t peek. If someone wants to visit, they don’t just come over unannounced–they call or text first. In terms of technology, we set passcode locks on our computers and smartphones.

A 2014 Pew Research poll asked people to define “privacy” in one word. The most popular answers were security, secret, personal, alone, information and business.

But today, it’s possible to follow your Internet searches, see who you email, text and call, track your geographical location at all times, monitor your purchases and even track your credit card and phone bills.

The trackers include everyone from family and friends to companies, marketing agencies, the government and law enforcement. From basic information posted on social media, to GPS tracking on your smartphone, people around the world can learn a lot about you from your Internet activity — even when you aren’t intentionally on the Internet. Combining these various components gives them a pretty good idea of what you do, your likes and dislikes, and who and where you are.

You know that nightmare where you’re standing naked in front of an audience? Well, this is the very real 21st century equivalent.

Nearly every app on the modern smartphone is programmed with GPS. Whenever you walk by a WiFi-enabled store, café or home with your Wi-Fi turned on, it registers your device– creating a virtual path of your movement. Do you ever search Google for something, and minutes later see advertisements for it on your sidebar or Facebook? That’s not a coincidence.

In 1965 Gordon Moore, co-founder of Intel, made a prediction known as Moore’s Law: computing power doubles every two years. In other words, computers process large amounts of data faster than ever before. That’s why those Google searches turn into ads so quickly.

Further, the price of data storage is steadily dropping. In 1991, one-gigabyte hard drives cost around $2,700. In 2007, one terabyte (1000x GB) hard drives cost $375. Currently, one terabyte drives cost around $60.

What happens when infinitely faster processing meets infinitely cheaper storage?

“It starts to infringe upon privacy,” said Paul Rosenzweig, cyber and homeland security expert.

So what right do Americans have to privacy?

The Founding Fathers wrote the Fourth Amendment to the Constitution in 1791. It grants citizens the right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Obviously they didn’t have Internet security in mind. Instead, it was a response to Britain’s “general warrant” allowing soldiers total access to search American colonials and their homes.

Let’s translate this to cybersecurity: without a warrant, the government cannot keep surveillance on devices for which individuals have a reasonable expectation of privacy. It also cannot physically take these devices to later use as evidence in court.

Fast-forward nearly 200 years to the Privacy Act of 1974. This legislation came after concerns about the government’s collection, retention and use of personal data. The federal government has a number of databases with information on individuals, both citizens and noncitizens.

The Privacy Act of 1974 set four basic restrictions on the government regarding these databases. First, it required government agencies to show individuals all records kept on them if requested. Second, it set “fair information practices” that agencies must follow when collecting and saving data, such as giving notice that it is collecting the information, how it is storing it and how it is protecting privacy. Third, it restricted the ways information can be shared with other people and agencies. Fourth, it allowed people to sue the government if it violates these regulations.

Even though the Privacy Act was meant to increase government transparency, it contains many exceptions and loopholes.

For example, nongovernment entities, like email and phone providers and app developers are barely restricted when it comes to information collection. They are legally required to disclose in privacy agreements the information they collect (yes, those long, size five-font agreements that very few people bother to read), but that’s about as far as regulation goes. Further, these companies are required to provide government agencies with these user records whenever requested, leaving virtually no choice.

That’s why privacy advocates like Amie Stepanovich encourage companies to only collect information completely pertinent to the functioning of the business.

Stepanovich is senior policy counsel at Access Now, an international digital rights organization.

Stepanovich also urges further safeguards for personal privacy, such as encrypting emails, turning off smartphone app location services and creating secure passwords for online accounts. While these precautions–ranging from simple to very skillful–can certainly aid in Internet security, there’s no surefire way to be anonymous online.

Privacy professionals know that it’s impossible to function in 21st century society without being active online. They also know that, though it means being tracked, keeping location services turned on for some apps can make life easier and, honestly, more fun. Who wants to carry around–and decipher– a map when a GPS provides voice activated turn-by-turn directions? Similarly, think about apps like Starbucks’ that send alerts and coupons every time you’re near a store.

We’re okay with giving Starbucks our location, and maybe even letting Google track our searches, if it means we’ll be notified of sales. But when did we consent to give our purchase histories to credit companies, address histories to data aggregation companies, or travel habits and telephone records to the government?

Americans have mixed feelings about digital surveillance. Many are willing to sacrifice some privacy in exchange for stronger national security. Wouldn’t we all rather the government use cyber tracking to identify and stop terrorists through before they attack?

But specifically after the Snowden leaks, many Americans have become skeptical of the government’s digital surveillance. The Pew Research poll found that 80 percent of adults believe Americans should be concerned about the government monitoring their phone and Internet activity.

Even more are concerned with company surveillance. That same poll showed that 91 percent of adults “agree” or “strongly agree” that consumers have lost control over how companies collect and use their personal information.

While 61 percent said they would “like to do more” to protect their anonymity online, 76 percent consider that a difficult feat.

Others don’t find any reason for online anonymity.

The “I have nothing to hide” argument is a popular one. But critics say no one wants their entire life exposed, no matter how “good” of a person they are.

Too much privacy may enable corrupt behavior. Too little privacy may bring Orwell’s Big Brother to reality. People act differently when they know they’re being watched, and Americans are being watched now more than ever before.

In 1999, SUN Microsystems CEO and founder Scott McNealy famously said, “You have zero privacy anyway. Get over it.” We may be moving that way.

Online Privacy: Is it even possible in today's networked world?

WASHINGTON–On July 4th, 1776, the founders of our country adopted the Declaration of Independence, and forever altered the course of history. But at heart of that document is one line that stands out above all others: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

Life, liberty and the pursuit of happiness: three ideas, three unalienable rights that have come to define our country and our country’s mindset. But there’s another idea that is thought to be in line with those: privacy. The Fourth Amendment to the Constitution, part of the Bill of Rights, guards against unreasonable searches and seizures. But is privacy a right, or is it just assumed to be a right? In a modern world where Facebook and targeted ad campaigns based on ¬¬internet surfing patterns reign supreme, can we even assume that our information is being kept private and safe?

In the wake of recent congressional hearings on online privacy, major players such as Facebook, Apple and Google were questioned on that very topic: Is their consumers’  information safe and private?

At the hearing, Facebook chief technology officer Bret Taylor assured Senate leaders that they “never sell data to third parties or advertisers” and that “in every aspect of a product’s design, privacy is an aspect of the discussion.”

However, one day after these hearings, multiple media outlets reported that a hacker had compiled information from 100 million Facebook users—including email addresses, individual websites, and phone numbers—and made all of this information available for download.

This flies in the face of exactly what Taylor said, that such information is private and not  available to hackers. Facebook will counter with an argument centering on user privacy controls, but does the company believe that everyone who uses their product is aware of these controls?

In a recent E-Business and ForeSee Results customer satisfaction index report, Facebook scored in the lowest five percent of private sector companies.

“Our research shows that privacy concerns, frequent changes to the website, and commercialization and advertising adversely affect the consumer experience,” said Larry Freed, president and CEO of ForeSee Results, in a press release.

Google, meanwhile, has faced similar problems concerning privacy. More than two months ago, Google admitted it collected date on users of its Google Maps Street View program. And in a move that will surely raise some eyebrows, Examiner.com reported Monday that a German company recently sold GPS-controlled surveillance drone cameras to Google. The reported purchase of these drones is that they will be used with other mapping projects.

In a world of increasing surveillance and by default, less privacy, is there a reasonable right to expect privacy?

According to the Wall Street Journal, in 2008, Microsoft had plans to unveil its Internet Explorer 8 with a “privacy by default” setting, as opposed to Facebook’s opt-in privacy mantra. But Microsoft’s plan was quickly scrapped in favor of a track-and-sell targeted ad program aimed at its users. The reported reasoning for such a change: “Executives who argued that giving automatic privacy to consumers would make it tougher for Microsoft to profit from selling online ads.”

So the question becomes: If the companies in charge of so much of our so-called “private” information have no incentive to protect what we do online, should demand more control over our privacy?

Will national security play a role in selecting Justice Stevens’ successor?

WASHINGTON — When Justice John Paul Stevens announced his impending retirement last week, pundits immediately began tossing around names of possible Supreme Court successors—Hillary Clinton, Janet Napolitano, Diane Wood, Merrick Garland, Eric H. Holder Jr. and more.

Most often, the pundits discuss a nominee’s gender, upbringing, legal background, political alignment and previous cases.  One’s stance on national security issues doesn’t always get a lot of attention.  But now that the United States  is engaged in two wars, it is incredibly important, argues UC-Berkeley law professor John Yoo, to consider a nominee’s stance on national security.  In a recent op-ed in the Wall Street Journal, Yoo—a controversial former Justice Department official—wrote that Justice Stevens had a tendency to undermine military authority in wartime, and was on a “crusade to overturn the executive branch’s terrorism policies.”  Yoo said that in 1943, Stevens (then a Navy intelligence officer) raised “humanitarian concerns” when FDR commanded the Navy to shoot down a plane carrying Admiral Isoroku Yamamoto, the planner of the attack in Pearl Harbor.  What then, Yoo asked, does Stevens think of the U.S. “raining missiles down” on Afghanistan, Pakistan and Yemen?

After 9/11, the Bush administration expanded presidential powers to reach into matters of national security.  Critics of this expansion of power, ranging from academics to Supreme Court justices, thought Bush’s actions were unconstitutional and even illegal.  Through an executive order, the Bush administration approved a “terrorist surveillance program,” which authorized the National Security Agency to monitor communication (phone calls, e-mails, Web browsing, text messaging) between parties believed to be beyond U.S. borders, without a warrants, as part of foreign intelligence collection.  The issue of “indefinite detention” has been controversial, and some groups, like the American Civil Liberties Union, believe the Patriot Act allows for such detention, which has been utilized in the military detention facility at Guantanamo Bay, Cuba.

Yoo wrote that President Barack Obama “cannot keep his promise to the American people to fight al Qaeda with all of the tools at the presidency’s disposal if he appoints a justice who will continue to obstruct and second-guess the decisions of our military and intelligence officials.”

A National Public Radio piece broadcast right after Stevens’ retirement announcement said “the decisions Stevens is likely to be remembered for most are those he authored on national security and presidential power.”  Two notable cases are the Hamdan 5-3 decision in 2006, which challenged Bush’s plan for military tribunals at Guantanamo, since they would break the Geneva Conventions, and the 2004 Rasul decision, which allowed detainees at Guantanamo to challenge their detainment in federal court.  (Legal analyst Jeffrey Toobin said Rasul was the first time a president lost a major civil-liberties case in the Supreme Court during wartime.)  These two Supreme Court decisions forced a redefinition of the Bush administration’s Guantanamo policy.

And both of these decisions also had “profound implications for the limits of presidential power,” according to NPR.  Stephen Vladeck, a law professor at American University who served on the legal team that successfully challenged Bush’s policies in Hamdan, agreed.  He said history will look back at these verdicts as some of Justice Stevens’ most important contributions to American law, in part because since he “reaffirm[ed] the role of the courts during crisis times” and directly impacted operations at Guantanamo and in the Bush administration’s war on terror.

Robert F. Turner, co-founder of the University of Virginia’s Center for National Security Law and a former chair of the American Bar Association’s Standing Committee on Law and National Security, acknowledged that Yoo “gets criticism from a lot of people about his views of presidential power,’’ including opinions he rendered while a policy lawyer in the administration of President George W. Bush that gave virtually unlimited authority to the president as commander in chief.

But he criticized Yoo as being “irresponsible,” for suggesting that judges are obstacles to our military operations.  If anything, Vladeck said, the judges are mandated by the Constitution to serve as checks on the administrative and legislative branches of government.

“What John Yoo calls an obstacle, I call a separation of powers,” Vladeck said, describing the High Court’s checks on executive power as an “inescapable reality of our judicial system.”

It’s especially important for the justices to assert their opinions “on issues where public sentiment is against them,” said Vladeck, adding that national security may be one such issue, but it’s not a reason to cherry-pick a justice who will be friendly and “unobstructive” to Obama’s national security agenda.

As for whether one’s national security stance will—or even should—play an role in Obama’s nomination process, Vladeck said that it’s fair to question any judicial nominee (at any level) about his view of “the separation of powers in any case, including ones that implicate national security.”  But, he said he would draw a clear distinction between that and asking what the nominee thinks America’s stance on national security should be.

Turner, however, said certain powers given to the president, specifically regarding foreign affairs “are to be unchecked” and, as Chief Justice John Marshall said, that the courts have no right to second-guess these decisions.  He added that, though the Supreme Court likely would not approve of Yoo’s opinion, it is “a reasonable view” with a “strong case in both practice and in text.”  Turner referred to the 1944 case in which the Court upheld Japanese detention camps, even though thousands of Japanese—many of whom were American citizens—were interned simply for being Japanese and for spreading fear and vulnerability among a paranoid American populace.

Vladeck said that Yoo’s “kind of sentiment is deeply troubling,” and that a Supreme Court justice ought to possess independent thought regarding myriad political issues—which is why they are appointed for life terms to dictate the law of the land.

Turner admits that if it were his call, “I would not appoint a justice who I thought would be soft on national security…and on the other hand, I wouldn’t want someone who thinks civil liberties don’t count.”  He said that beyond a justice’s background, religion and gender, you want people who are “relatively moderate, intelligent, honorable, whom you can rely on to do the right thing.”  He said that of the names that have been tossed around as potential nominees, “most of these names strike me as being in that category.”  And that’s regardless of their opinions on national security.