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Encryption & the 4th Amendment

Constitution - We the PeopleAlas, there’s no right to privacy in the Constitution of the United States. The closest we come to that right is in the 4th Amendment which states that “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 upon probably cause —” and so forth.

For the past few years, the administration has been trying to get US companies to install “back doors” in their encryption programs. That way federal agencies will be able to access our otherwise private information. And now, as you know, a federal judge has ordered Apple, Inc. to hack its encrypted i-phone so the FBI will get into the device used by one of the killers in the San Bernardino massacre. Apple says No. Doing that, says CEO Tim Cook, would ultimately compromise the privacy of all i-phone users.

That’s a brave stand for privacy. And, frankly, if we have to rely on global corporations to protect us from government snooping, we’re in a bad way.

In 1890 a couple of law partners, Samuel Warren and Louis Brandeis, wrote an article for the Harvard Law Review about privacy. In the years since then, it’s become one of the most famous articles ever printed in that review. In their article, the young lawyers found a right to privacy  — or, as they wrote, “the right to be left alone” — in common law, and also found it implicitly in a variety of statutes. It was a good start, but that was over 100 years ago.

Thirty years later, the same Louis Brandeis, by then a Justice of the Supreme Court, argued that a right to privacy was implicit in the 4th Amendment. The case was Olmstead v. the United States, and the question was whether recordings of wiretapped private telephone conversations constituted impermissibly seized evidence and consequently should be excluded from the trial. The case was well chosen to favor the use of wiretaps, because the people being wiretapped were in an outrageously huge bootlegging business. By a five-to-four decision, the Court said wiretapping had not violated the 4th Amendment. So Brandeis lost. As Chief Justice William Howard Taft said, there had been no searching and nothing had been seized, the conversation had been merely overheard. By the way, that decision was not overturned until 1967, thirty-nine years later.

The article written by Brandeis and Warren in 1890 had been stimulated by the invention of the camera and the public display in newspapers of photographs of private people. And in the 1928 Olmstead case, the decision followed upon the use of telephone wiretaps. In each case the interpretation of the 4th Amendment came in response to a technological advance that law didn’t cover. Now, of course, technology has advanced terrifically with the invention of the marvelous digital phone and all that it can do.

Clearly, any conclusive decision in the Apple case will have to involve an interpretation of the 4th Amendment. The Apple case, like the Olmstead case of 1928, is well chosen to favor the authorities, namely the FBI, since the phone they want to get into  was used by the perpetrators of the horrifying San Bernardino massacre. It’s a hard case. And there’s an old legal adage that say, “Hard cases make bad law”


If you’re interested, Critical Pages has an earlier post on Louis Brandeis.

Take Your Camera To The Bank

Bank vault 470Let’s have some fun with privacy.  But first of all, let’s be reasonable. We don’t expect privacy when we take a walk down town or drive into the city. That’s important, because a “reasonable expectation of privacy” is often the basis for judicial decisions on privacy.

But do reasonable people expect to be followed continuously by a policeman?  That’s what happens whether you’re a pedestrian on the sidewalk or a driver in a car. Police departments have access to municipal cameras posted all over town and they can follow a person or a vehicle quite nicely. And don’t think you’ll escape surveillance because they’ll fall asleep from boredom. They have excellent software that takes the drudgery out of finding and trailing you.  Furthermore, they can make arrangements to be connected to commercially owned cameras positioned in stores or outside or in parking lots.They have you covered.

But the invasion of privacy is all in one direction. Have you noticed? Your government and the commercial enterprises that surround you, such as your bank,  are permitted take your photograph and invade your privacy, but you’re not supposed to  invade theirs in return.

The next time you go to the bank, take a camera with you and photograph the employees and the interior of the bank. After all, the bank is run by reasonable people who don’t expect their customers to be blind and not able to see their surrounding. So take a camera along and start taking photographs. If you take photos with your smartphone, you’ll be able to upload them! Work fast.

The Right to Privacy

Louis Brandeis and Samuel Warren  were friends and classmates at Harvard Law School. They graduated in 1877 —

Samuel Warren, 1875

Samuel Warren, 1875

Warren was second in that class, second to Brandeis who not only was first, but also had the highest grade average in the history of the school, a record that lasted for 80 years.  In 1879 the two young lawyers founded the Boston law firm of Nutter McClennen & Fish. At the end of 1890 they published their famous law review article “The Right to Privacy.” It has remained a landmark in American legal history. What follows is a brief excerpt from  that famous article:

Brandeis, Louis

Louis Brandeis, 1900

The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word  or by signs, in painting, by sculpture, or in music. Neither does the existence of the right depend upon the nature or value of the thought or emotion, nor upon the excellence of the means of expression. The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public.

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In 1916, Louis Brandeis — by that time a well known advocate of progressive causes — was confirmed by the Senate and became an associate justice of the United States Supreme Court.  His nomination by President Woodrow Wilson was controversial; there was opposition from some because of his “radical” views and from others because he would be the first Jew on the Supreme Court. The vote was 47 to 22. Forty four Democratic Senators and three Republicans voted in favor,  21 Republican Senators and one Democrat voted against.

Forget 1984, Think 2015

Security cameraYou’re probably aware that as you drive through the city certain cameras, often mounted overhead at cross streets, record your car’s plate number and, in many instances, they record your face as well. And as you or park in a parking garage or enter a shop, security cameras continue to photograph you. And maybe you’re aware that if you walk with your cell phone on, your location is being pinpointed to within fifteen feet.

Maybe, like most people, you do feel a little uncomfortable about being kept under watch, but you shrug it off because you’re just one individual in a city of thousands or millions and they can’t keep track of every single one of us all the time. I mean, sure, they have the technology to listen to our phone conversations and the technology to photograph us as we move around, but how can they store that ocean of information? Besides, the cost of storing so much data would break the bank.

And you’re right. At least for three more years. But you do remember George Orwell’s 1984 and Big Brother. Back in 1984, it cost about $85,000 to store a gigabyte of data. Today it costs about five cents. That means it costs about 17 cents to store all the phone calls made by an individual over the course of a year. But the cost of storage is falling and by 2015 it will cost under 2 cents.

Cameras produce photos and photos have lots of pixels and that means a security camera generates a mountain of data. On the other hand, your phone, GPS and Wi-Fi connection give away your location but that information requires comparatively few ones and zeros. The data identifying the location of each of a million people every five minutes, 24 hours a day for a year, can be stored in 1,000 gigabytes. That would cost around $50 today.

It costs more to store all those pixels from all those cameras, but governments can afford it. In China,  a government “safety” project will use around 500,000 video cameras to keep watch in the city of Chongqing which has a population of 12 million — that’s one video camera for every 24 people.  Right now, it’s expensive to store that much high-quality video and they’ll have to use lower quality images. But in a few years, say by 2020, they’ll be able to store a year’s worth of high-quality video movies of every one of those 12 million people for about 25 cents per person.

These numbers come from a very interesting report produced by John Villasenor, a nonresident senior fellow in Governance Studies and in the Center for Technology Innovation at Brookings. He is also professor of electrical engineering at the University of California, Los Angeles. You may want to read the full report ; you’ll find it well documented. Professor Villasenor’s report is phrased in terms of how much it would cost a repressive regime, such as that in Iran, to keep a close watch on each of its citizens. Fortunately, we live in an open society where such issues as government surveillance and individual privacy are vigorously debated. Or, maybe we should say, ought to be vigorously debated.

Who’s Reading Over Your Shoulder?

Visitors to Critical Pages typically enjoy libraries and book stores. So we should warn you that our Congress recently voted to allow the government to search bookstore and library records of people who are not suspected of criminal acts or terrorism.

Spy

Your Government Spy

To be precise, Congress merely allowed the government to continue doing what it’s been doing since 2001 when the Patriot Act was first passed. It came up for reauthorization and Congress reauthorized the whole damn thing, even those parts which invade the privacy of ordinary non-criminal citizens. So if you take out a library book, or buy a book at a bookstore, you might keep that in mind. Maybe you’d like to read about Islamic religious law, or about the safety features of US nuclear power plants, or US railways, or interesting sexual preferences, or AIDS, or impotence in older men or pregnancy problems of older women. And maybe you would have liked to think that those concerns were your own very private business, not open to your government.

Neither the House nor the Senate spent much time considering amendments to the Patriot reauthorization bill, and it passed both chambers handily. (more…)

More Notes


Tim Carmody, in his excellent piece, "How Haiti Became Poor", notes that President Trump's racist policies and vulgar language have sullied the word "shithole" which used to be one of the all-time great swear words. He's right. It's another terrible power this careless President wields.