Relation between technology and privacy

1
Relation between technology and privacy

• Micro level focus on empowering individuals
  information and tools to effectuate privacy in
  various contexts
• Macro level what kind of world do we want to
  live in

2
Why do we care about privacy

• Why do you care, or not, about privacy?
• Why does society protect it, or not?
• Reflections from what weve read this semester?

3
What does it protect?

• Literally?
• Figuratively?

4
What sort of right or interest is it?

• Is it an end or a means? Or both?
• What happens without it?
• How do you know?
• What values is it in tension with?
• How do you harmonize or balance?
• How does technology challenge conceptions of
  privacy?

5
Scope of 4th A Protection

• The 4th Amendment
• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated, and no Warrants shall issue, but on
  probable cause, supported by Oath or affirmation,
  and particularly describing the place to be
  searched, and the person or things to be seized.

6
Scope of 4th A Protection

• Katz v. U.S. 389 U. S. 347, 353 (1967).
• the Fourth Amendment protects peopleand not
  simply areasthe reach of that Amendment cannot
  turn upon the presence or absence of a physical
  intrusion into any given enclosure.
• Test
• You must have an actual, subjective expectation
  of privacy.
• It must be an expectation that is objectively
  reasonable (one society is prepared to recognize
  as reasonable-- 389 U. S. 347, 361 (Justice
  Harlan concurring)).

7
Scope of 4th A Protection

• Smith vs. Maryland, 1979
• individuals have no legitimate expectation of
  privacy in the phone numbers they dial, and
  therefore the installation of a technical device
  (a pen register) that captured such numbers on
  the phone company's property did not constitute a
  search.
• United States v. Miller
• records of an individual's financial transactions
  held by his bank were outside the protection of
  the Fourth Amendment

8
Basis for narrowing Protection

• Assumption of the risk
• takes the risk, in revealing his affairs to
  another, that the information will be conveyed by
  that person to the Government
• Voluntary nature of the disclosure
• a person has no legitimate expectation of
  privacy in information he voluntarily turns over
  to third parties

9

• "It would be foolish to contend that the degree
  of privacy secured to citizens by the 4th A has
  been entirely unaffected by the advance of
  technology...the question we confront today is
  what limits there are upon this power of
  technology to shrink the realm of guaranteed
  privacy."

10
Status Quo, Technology, Law
reasonable expectation of privacy
Dog sniff Aerial photography
Thermal imaging
11
data in networks?

• The interception of communications, transactional
  data during transmission.
• The acquisition of stored communications and
  transactional data.

12
ECPA (SCA amendments to Title III)

• The Electronic Communications Privacy Act defined
  two types of ISPs
• Electronic Communications Service to the extent
  you permit users to communicate with each other
• Remote Computing Service to the extent you permit
  users to store communications or other
  information

13
Kinds of Data

• Basic Subscriber Information (name, address,
  equipment identifier such as temporary IP
  address, and means and source of payment)
• Other non-content Information (clickstream,
  location)
• Wiretap, Pen Register or Trap and Trace
• Content - Real Time and Stored

14
Legal Standards

• Basic Subscriber Information Subpoena or better
  (Govt may not use civil subpoena)
• Other Information 2703(d) order or better
• Dialed digits Pen Register or better
• Real Time Content Title III order
• Stored Content lt 180 days search warrant
• Stored Content gt 180 days subpoena or better
• Opened v. Unopened -- ct doesnt matter doj says
  once opened no warrant required

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1 Home Energy Use (Pot diaries)

• Story of Starkweather
• The public awareness that such records are
  routinely maintainednegates any
  consistutaionally sufficient expectation of
  privacy
• Story of Kyllo
• "We think that obtaining by sense-enhancing
  technology any information regarding the interior
  of the home that could not otherwise have been
  obtained without physical intrusion into a
  constitutionally protected area constitutes a
  search -- at least where (as here) the technology
  in question is not in general public use. This
  assures preservation of that degree of privacy
  against government that existed when the 4th A
  was adopted."
• Story of Caballes
• Well trained narcotics detection dog, one that
  does not expose noncontraband items that
  otherwise would remain hidden from public view
  during a lawful traffic stop generaly does not
  implicate legitimate privacy interests.

16
1 Distinctions

• Is it sensed or recorded?
• Activity that generates records held by others
• Activity that is imperceptible without trespass
• Activity that can be perceived (sensed) from
  outside, Plain view
• Activity that is rendered perceptible by
  technology
• Where is the activity taking place?
• home v. public street?
• What is sensed?
• Just illegal activity, contraband?
• Mix of legal and illegal activities?

17
1 Lessons

• A little recording can mean a lot
• Location matters (people, activity, data)
• Use of well trained technologies (precise and
  accurate) low false positives outside the 4th
  A because they are not searches, at least in some
  instances
• Police only technology is unreasonable invasion,
  readily available technology maybe not

18
2 Cameras in Public Places

• Value of public places
• Community, speech, protest, public life
• No Privacy in Public
• You see me, I see you (reciprocity)
• Police need not avert eyes
• As much privacy as the space affords
• Bounded by space, time, presence

19
2 Ubiquitous image collection

• I see you, you cannot see me
• Police virtually present all the time
• Porous unknowable public space
• Permanence
• Aggregation
• Who, when, where of observation change
• Inability to engage in self help

20
2 Responses

• Legislated click
• Bans on camera phones in some places (you may see
  me but you cant prove that you saw me)
• Upskirt laws
• Barak Obama privacy zone
• HP anti paparazzi patents

21
how, when, and at what level does privacy
matter?

• Importance of legal context as well as social
  context
• Expectations of privacy are shaped by what is
  technically possible, technical possibility in
  turn informs courts analysis of reasonableness
• Court makes distinctions that may not relate to
  normative understandings -- careful where this
  happens

22
Value Driven Architecture

• Architectural choices constrain policy
• Policy choices if considered in architectural
  design can be hardened
• Need to identify policy goals privacy,
  security, other in order to engage in iterative
  process during design phase
• Must understand stakeholder needs, technology,
  law, and have clear objectives

23
Value Driven Architecture

• Architectural choices constrain policy
• Policy choices if considered in architectural
  design can be hardened
• Need to identify policy goals privacy,
  security, other in order to engage in iterative
  process during design phase
• Must understand stakeholder needs, technology,
  law, and have clear objectives

24
The last word

• Reserved judgment as to how much technological
  enhancement of ordinary perception, from such a
  vantage point (public street) if any is too much.