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Justice Sotomayor on Digital Surveillance, 3rd Parties, and Societal Expectations of Privacy in Public

In United States v. Jones the U.S. Supreme Court unanimously ruled that attaching a Global Positioning System (GPS) device to a vehicle for the purpose of location-tracking constitutes a search under the Fourth Amendment. More notable than the unanimity of this decision, is that the majority opinion was premised on the fact that the federal government physically trespassed on Antoine Jones’ private property (his car) in order to install the GPS — leaving open the question of whether such surveillance would have been legal had the government not physically installed a tracking device. To this end, United States v. Jones raises more questions than it answers regarding the legality (and morality) of surveillance in everyday information environments. Governments, corporations, and individuals do not need to physically enter your house, your desk, or tap your phone line, to gain access to the multitude of personal information that flows through your everyday environment, and beyond.

In separate concurring opinions, Justice Alito and Justice Sotomayor both problematize the majority opinion’s focus on “physical intrusion,” yet only Sotomayor’s concurring opinion offers a consideration of the interests and concerns of U.S. citizens who currently exist in what is, at least to them, a largely mystified and little understood information environment. As Sotomayor argues in her concurring opinion:

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.”

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

Sotomayor’s focus on “a reasonable societal expectation of privacy in the sum of one’s public movements” is important as it’s quite clear that society is not aware of the extent to which they’re being tracked, nor is there a social consensus on what constitutes ‘being in public.’ In my own research I’ve consistently found that when young people learn about the most basic ways that their personal information is being aggregated, they begin to articulate more sophisticated privacy concerns alongside a general amazement that such surveillance is actually happening — legally — in what they think of as private places: their facebook profile, their email, their texts, and so on.

Sotomayor concludes this point by arguing that society expects more privacy than it currently has in the digital age, and calls for a decoupling of secrecy and privacy in order to develop more situated and accurate judicial understandings of when and where people expect privacy:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties … This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Anonymous in Oslo: We stand for global freedom

Flier posted by Anonymous in Oslo bus stop. Photo by Aga Skorupka

Anonymous in Oslo: We stand for global freedom

Anonymous in Oslo: Repeat After Me

Flier posted by Anonymous in Oslo bus stop. Photo by Aga Skorupka

Anonymous in Oslo: Repeat After Me

MiND-Fi

Technology Loop from Portlandia (h/t Lisa Ashby Brundage):

Carrie: Welcome to MiND-Fi

Fred: Carrie, What’s that?

Carrie: It’s MiND-Fi, I just installed it. It’s like Wi-Fi, but for thoughts. Now, you can let go of all your electronic devices and just be free in your mind.

Competing Narratives: Internet Freedom, National Security and Social Reproduction

Evgeny Morozov has an excellent post at Foreign Policy that addresses the competing narratives emerging around WikiLeaks. Namely, WikiLeaks as an internet freedom issue vs WikiLeaks as a national security issue.

Discussing these narratives in the context of the pro-WikiLeaks DDoS attacks “organized” by Anonymous, Morozov touches on the same point I made yesterday:

I don’t think that their attacks are necessarily illegal or immoral . . . I like to think of DDoS as equivalents of sit-ins: both aim at briefly disrupting a service or an institution in order to make a point. As long as we don’t criminalize all sit-ins, I don’t think we should aim at criminalizing all DDoS . . . The danger here is obviously that if the narrative suddenly becomes dominated by national security concerns, we can forget about DDoS as legitimate means of expression dissent — that possibility would be closed, as they would be criminalized. (emphasis added)

Morozov also discusses how the dominance of a national security narrative around this issue could rationalize more state-based surveillance of everyday cyberspatial behavior:

I seriously doubt that U.S. authorities would be able to effectively go after Anonymous, in part because there are too many people involved, they are scattered all over the globe, and attributing cyber-attacks to them would be impossible (and would surely require reading a lot of chat transcripts from IRC). The only other possible policy response at their disposal is to make it easier to trace such attacks in the future — most likely by empowering the likes of NSA/Cyber Command. I would imagine that after the current cyber-attacks on credit card companies — even if they didn’t cause much damage — this would enjoy bipartisan support in the United States. (emphasis added)

Two points worth adding to Morozov’s analysis:

  • It’s not only likely the U.S. will use this event to enact pro-surveillance policies that strengthen the role of the NSA/Cyber Command in everyday internet use, but virtually guaranteed (no pun intended). However, these security initiatives are never achieved through policy alone, social production is always necessary to normalize these policies and socialize a public into compliance (or at least attempt to). Since young people are among the most active internet participants and — let’s face it — will be using the internet much farther into the future than today’s adults, they will be a primary target. “Get ’em while they’re young” is a common phrase for a reason.
  • While the U.S. government has yet to arrest anyone affiliated with the recent DDoS attacks, the Netherlands’ recent arrest of a 16 year 0ld — for doing little more than encouraging people to ping servers via an IRC chatroom — is a sign of things to come and an example of this social production.  Based on how the U.S. has thus far framed “file-sharing” as “stealing music” and singled out certain youngsters for unjustified and disproportionate punishment, we have a glimpse of what’s around the corner. Watch WikiLeaks/Anonymous (the distinction is almost irrelevant in the public imagination) become the new internet predator, and online civil disobedience the new cyberbullying.



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