Privacy, information
access, and security in a
panopticon society
donna Bair-Mundy
Intercepting topics
Security
Libraries
Privacy
Surveillance
Discussion questions:
What is privacy?
Why do we need it?
Informational privacy - Westin's
definition - part 1
Privacy is the claim of individuals,
groups, or institutions
to determine for themselves
when, how, and to what extent
information about them
is communicated to others.
Control
Westin, Alan F. 1970. Privacy and freedom. London: Bodley Head.
Informational privacy - Westin's
definition - part 2
Viewed in terms of the relation of
the individual to social participation, Choice
privacy is the voluntary and temporary
withdrawal of a person from the Temporal
general society through physical
or psychological means, either
in a state of solitude or, when among
larger groups, in a condition of
anonymity or reserve.
Varied means
Informational privacy - Westin's
definition - part 3
The individual's desire for privacy
is never absolute, since participation
in society is an equally powerful desire.
Ongoing dialectic
Informational privacy - Westin's
definition - part 4
Thus each individual is continually
engaged in a personal adjustment
process in which he balances
the desire for privacy with the desire
for disclosure and communication
of himself to others, in light of
the environmental conditions and
social norms set by the society
in which he lives.
Social norms
Informational privacy - Westin's
definition - part 5
The individual [balances the desire for
privacy with the desire for disclosure
and communication of himself to others]
in the face of pressures from the curiosity
of others and from the processes of
surveillance that every society sets
in order to enforce its social norms.
Privacy v. Surveillance
Release from tensions
of life in society
requires release from
pressure of playing
social roles
Westin's privacy theory: 4
Power
to define of privacy
functions
the boundaries of
the “core self”
Personal
autonomy
Emotional
release
Self-evaluation
Limited &
protected
communication
Need to integrate
experiences into
Share confidences and
meaningful
Westin,
Alanpattern;
F. 1970. Privacy
and freedom.
London:
intimacies
only with
those one
essential
for creativity
trusts
Bodley
Head.
Individual privacy versus
individual secrecy
Privacy
Allowed and in some
cases required for
socially-sanctioned acts.
Stress reducing.
Secrecy
Involves
socially proscribed acts.
Stress inducing.
Margulis, Stephen T. 1977. Conceptions of privacy: current status and next steps. Journal
of social issues 33(3):5-21, p. 10.
Margulis, Stephen T. 2003. Privacy as a social issue and behavioral concept. Journal of
social issues 59(2):243-261.
Election day
Us
Us
Us
Us
Them
Us
Privacy an old concern
Halakhah (Jewish law)
Proscriptions on:
Physical intrusion
Visual surveillance
Aural surveillance
Talmud
Walls between houses to be a certain height
Creditor may not enter person’s house
Ancient Roman law (Justinian’s Pandects)
Prohibition against going into a home and
dragging out the person
Hippocratic oath
No disclosure of what in practice seen or heard
that “ought never be published abroad”
Types of privacy in law
Informational
privacy
Control of access to
information about a
person or group of
persons
Privacy Act of 1974
Decisional
privacy
Freedom to make
personal decisions
without interference
from government
Roe v. Wade 1973
Gormley, Ken. 1992. One hundred years of privacy. Wisconsin law review
Sept/Oct 1992:1335-1441.
American Constitution
• Heavily influenced by natural
rights philosophy (John Locke)
• After extensive argument
decided to include a Bill of
Rights
Bill of Rights debate: Mason,
Jefferson, et al.
When assigning powers to
the government must also
limit those powers
General warrants and writs
of assistance
Objections to Bill of Rights
Bill of Rights is stipulation a king gives
to his subjects, granting a few
exceptions to rights of the monarch
Bill of Rights dangerous—implies
government has powers not
Could later be misconstrued as allinclusive not granted
(Alexander Hamilton, Federalist paper
no. 84, etc.)
The compromise
Amendment IX
The enumeration in the
Constitution of certain rights shall
not be construed to deny or
disparage others retained by the
people.
Fourth 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 upon
probable cause, supported by Oath or
affirmation, and particularly describing
the place to be searched, and the
persons or things to be seized.
General warrants (1)
•
•
•
•
No specific individual
No specific crime
No specific place to be searched
No specific items to be sought
• Illegal according to Sir Edward Coke’s
Institutes of the Lawes of England (first
published 1642 and 1644)
• Illegality confirmed by Sir Matthew Hale
• Illegality confirmed by Sir William
Blackstone
General warrants (2)
• Suspicion of crime related to
government revenue
• Used against anyone who dared to
challenge or limit the authority of
Parliament or the crown
• John Wilkes (member of Parliament)
• Anonymously wrote critical essay
published in North Briton
• General warrant leads to massive
arrests, Wilkes ► Tower of London
Writs of assistance
• Any customs official could enter “any
House, shop, Cellar, Warehouse or
Room or other Place...”
• Seize unaccustomed goods
• Lasted for the life of the sovereign
under which it was issued plus six
months
• According to John Adams, major
factor in seeking American
Independence
Fifth Amendment
No person shall be held to answer for a
capital, or otherwise infamous crime,
unless on a presentment or indictment
of a Grand Jury...; nor shall any person
be subject for the same offence to be
twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case
to be a witness against himself, nor be
deprived of life, liberty, or property,
without due process of law...
First Amendment
Congress shall make no law respecting
an establishment of religion, or
prohibiting the free exercise thereof; or
abridging the freedom of speech, or of
the press; or the right of the people
peaceably to assemble, and to petition
the Government for a redress of
grievances.
Freedom of 1st Amendment gives right to
associate without surveillance (Lieber
1859)
Ex parte Jackson
“The constitutional guaranty of the right
of the people to be secure in their papers
against unreasonable searches and
seizures extends to their papers, thus
closed against inspection, wherever they
may be. Whilst in the mail, they can only
be opened and examined under like
warrant, issued upon similar oath or
affirmation, particularly describing the
thing to be seized...”
Justice Field 96 U.S. 727, 732
Penumbras of the Amendments
1965
Griswold v. Connecticut
381 U.S. 479
"Zone of privacy" created by
1st, 3rd, 4th, 5th, and 9th
amendments
Discussion question:
Why do we need
surveillance?
Need for surveillance (1)
Need for surveillance (2)
Need for surveillance (2)
Need for surveillance (2)
Train
Depart
Arrive
1
2
2:30 p.m. 6:30 p.m.
3:30 p.m. 8:00 p.m.
Beniger, James R. 1986. The control revolution: technological and
economic origins of the Information Society. Cambridge, Mass.: Harvard
University Press.
Surveillance in a transforming
society
Zuboff, Shoshana. 1988. In the age of the smart machine: the future
of work and power. New York: Basic Books.
Roles of Surveillance (1)
Used to catch the criminals
Used as means to control
workers
Necessitated by technology
Facilitated by technology
Roles of surveillance (2)
Provision of services (Social Security)
Allows participation (Voter registration)
Protection against threat
Means of social control
• Discover and rout out deviance
• Threat of surveillance used to
promote compliance with the law
Routing out “deviants”
Round-up of Pennsylvania Quakers
(1777)
Sedition Act of 1798
Espionage Act of 1917 – 1918 amend.
Internment of persons of Japanese
ancestry—WW II
Dealing with dissidents
President Franklin Roosevelt had FBI
spy on New Deal opponents
President Johnson had FBI spy on
opponents of his Vietnam War policy
President Nixon had FBI, CIA, NSA, IRS,
and Army Intelligence spy on and
harass his perceived enemies
United States. Congress. Senate. The Select Committee to Study
Governmental Operations with Respect to Intelligence Activities.
1976. Final report.
“COINTELPRO New Left”
FBI program to “expose, disrupt, and
otherwise neutralize” activities groups
and individuals affiliated with the “New
Left”
Extensive and mostly illegal
surveillance
United States. Congress. Senate. The Select Committee to Study
Governmental Operations with Respect to Intelligence Activities.
1976. Final report.
“COINTELPRO New Left”
Had members arrested on marijuana
charges
Sent anonymous letters about a student’s
activities to parents, neighbors, and the
parents’ employers
Sent anonymous letters about New Left
faculty members (signed “A Concerned
Alumni” or “A Concerned Taxpayer”) to
university officials, legislators, Board of
Regents, and the press
United States. Congress. Senate. The Select Committee to Study Governmental
Operations with Respect to Intelligence Activities. 1976. Final report.
Surveillance - Plague model
Highly visible
Isolation and
observation
Social control
Foucault, Michel. 1995. Discipline and punish: the birth of the
prison. New York: Vintage Books.
Surveillance—Panopticon model
Jeremy Bentham
•
•
•
•
Legal theorist
Rationalism
Utilitarianism
Eccentric
Jeremy Bentham’s Panopticon
cells
entry
walkway
inspector’s
lodge
Panopticon society
Re-thinking constitutional
privacy
1964U.S. Senate
Long Subcommittee
Hearings on surveillance
activities by federal agencies;
first looked at IRS
No warrantless wiretapping in
criminal cases
1967
Katz v. United States
389 U.S. 347
Congress Acts
1968
The Omnibus Crime Control
and Safe Streets Act of 1968
(“Federal Wiretapping Act“),
18 USC Section 2510 et seq.
Wiretapping illegal but when crime has been or
is being committed law enforcement can, with a
warrant, engage in wiretapping for limited
periods. Provides judicial oversight for law
enforcement wiretapping.
National security wiretapping
1972
U.S. v. U.S. District Court
for the Eastern District of Michigan
“Keith”
“the customary Fourth Amendment
requirement of judicial approval before
initiation of a search applies in
domestic security cases”
FISA
1978
Foreign Intelligence
Surveillance Act
U.S. Code
50 USC Sections 1801-1863
Electronic mail
1993
ECPA
Electronic
Communications
Privacy Act
Addressed the need to protect e-mail.
Post-9/11
Viet Dinh
Asst. Attorney General
H.R. 2975
10/12/2001
S. 1510
10/11/2001
H.R. 3004
Financial AntiTerrorism Act
USA PATRIOT Act
H.R. 3162
Public Law No. 107-56
Signed Oct. 26, 2001 by Pres. George W. Bush
The USA PATRIOT Act
H.R. 3162
The Acronym
Uniting and Strengthening
America by Providing
Appropriate Tools Required to
Intercept and Obstruct
Terrorism
The USA PATRIOT Act
H.R. 3162
The Purpose
To deter and punish terrorist
acts in the United States and
around the world, to enhance
law enforcement investigatory
tools, and for other purposes.
The USA PATRIOT Act
The Language
SEC. 218. FOREIGN INTELLIGENCE
INFORMATION.
Sections 104(a)(7)(B) and section
303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and
1823(a)(7)(B)) of the Foreign Intelligence
Surveillance Act of 1978 are each
amended by striking `the purpose' and
inserting `a significant purpose'.
The U.S. Code
Sections 104(a)(7)(B) and section 303(a)(7)(B) (50
U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign
Intelligence Surveillance Act of 1978 are each
amended by striking `the purpose' and inserting `a
significant purpose'.
TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1804.
Applications for court orders
(7) a certification …
(B) that a
the
significant
purpose of
purpose
the surveillance
of the
is to
obtain foreign
surveillance
is intelligence
to obtain foreign
information;
intelligence
information;
Federal Wiretapping Act
1968
The Omnibus Crime Control
and Safe Streets Act of 1968
(“Federal Wiretapping Act”)
U.S. Code
18 USC Section 2510 et seq.
Federal Rules of Criminal Procedure
Rule 41 Search and Seizure
FISA
1978
Foreign Intelligence
Surveillance Act
U.S. Code
50 USC Sections 1801-1863
Investigative powers in US
Code
1968
1978
Federal
Wiretapping
Act
Foreign
Intelligence
Surveillance
Act
The USA PATRIOT Act
The Complaints— Records vulnerable
Section 215—Amending FISA 501(a)
The Director of the [FBI] or a designee of the
Director ... may make an application for an order
requiring the production of any tangible things
(including books, records, papers, documents, and
other items) for an investigation to protect against
international terrorism or clandestine intelligence
activities, provided that such investigation of a
United States person is not conducted solely upon
the basis of activities protected by the first
amendment to the Constitution.
The USA PATRIOT Act
The Complaints—Freedom of Speech
Section 215—Amending FISA 501(d)
No person shall disclose to any other
person (other than those persons
necessary to produce the tangible things
under this section) that the Federal
Bureau of Investigation has sought or
obtained tangible things under this
section.
Privacy in Libraries
On the network news:
Ayman al-Zawahiri
So you do a search . . .
A few days later . . .
How do
you feel?
USA PATRIOT Act & Libraries (1)
• June 8, 2004 – FBI demands list from
Deming branch of Whatcom Country
Library System of everyone who had
borrowed a biography of Osama bin
Laden since November 2001.
• Library refused.
• 15 days later, FBI withdrew its request.
USA PATRIOT Act & Libraries (1)
• 2005– FBI presents National Security letter
and demands “any and all subscriber
information, billing information, and access
logs of any person or entity” associated with
a specified IP address during a specified
period
• Librarians fought gag order in court
• Librarians speak out
Library Awareness Program
• Begun during Cold War*
• Desire to restrict access to unclassified
scientific information by foreign nationals
• Desire to recruit librarians to report on
“foreigners”
• Agent told librarians to report name and
reading habits of anyone with a foreign
sounding name or foreign sounding accent
• Librarians who criticized program were
investigated
*Curt Gentry gives onset year as 1962: Gentry, Curt. 1991. J. Edgar
Hoover: the man and the secrets. New York: Norton., pp. 759-760.
ALA on Confidentiality
• The First Amendment’s guarantee of freedom
of speech and of the press requires that the
corresponding rights to hear what is spoken
and read what is written be preserved, free
from fear of government intrusion,
intimidation, or reprisal.
• In seeking access or in the pursuit of
information, confidentiality is the primary
means of providing the privacy that will free
the individual from fear or intimidation or
retaliation.
Browser history
Internet station sign-up sheet
When records are no longer needed, destroy them!
Minimizing browser history (1)
Minimizing browser history (1)
Web Server Log
Web Server Statistics
Who:
Countries
... Full list
... Regions
... Cities
Hosts
... Full list
... Last visit
Authenticated users
... Full list
... Last visit
Navigation:
Visits duration
Viewed
Operating Systems
Browsers
Referrers:
Origin
... Referring search
engines
... Referring sites
Search
... Search Keyphrases
... Search Keywords
OPAC report—searches
OPAC Logging Report
DATE TYPE
SEARCH STRING LIMIT LIMIT_STRING INDEX HITS
9/28/01
Keyword harry potter
N
9/28/01
Author
N
9/28/01
Keyword birds
N
9/28/01
Keyword alligators
N
9/28/01
Complex (NKEY alligators) AND
tolkein
K
4068
B
1
K
2863
K
30
N
K
0
N
K
103
N
K
37
LOCA=Main Library
LOCA=Main Library
(TKEY "crocodiles")
9/28/01
Complex (TKEY rats) AND
(TKEY "mice")
9/28/01
Keyword osama bin laden
UH Library
Search electronic resources
Log in screen
What can we do? (ALA tips)
•Conduct privacy audits
•Identify the type and nature of all records
and files that contain library patron and user
personally identifiable information
•Establish a schedule for the retention of
records and files containing library patron
and user personally identifiable information
Detail the specific steps staff should follow
in responding to investigatory requests for
patron and user personally identifiable
information from governmental agencies
What can we do? (2)
•Be aware of privacy policies
•FBI: http://www.fbi.gov/privacy.htm
•Google:
http://www.google.com/intl/en/privacypolicy.html
•Anti-spyware software
•Scrub your data
Questions
?
Mahalo
Banks and Bowman theoretical
model
Associate General
Counsel for FBI
Crisis
Privacy
National
security
Rights of the
individual
Survival of the
group
Banks, William C., and M.E. Bowman. 2000. Executive authority for national
security surveillance. American University law review 50(1).
Identifying the Problem: the
Communication interception timeline
Conviction upheld
W
1928
Olmstead
W
1942
Goldstein
W
1937/1938
Nardone
D
1942
Goldman
1952 R
On Lee
S
1961
Silverman
1967
Katz
Wiretapping evidence disallowed
E
Communication interception
timeline
Conviction upheld
W
1928
Olmstead
W
1942
Goldstein
W
1937/1938
Nardone
1934
Radio Comm.
Act
D
1942
Goldman
R
1952
On Lee
S
1961
Silverman
1967
Katz
Wiretapping evidence disallowed
E
Federal Communications Act
1934
Section 605
No person not being authorized by
the sender shall intercept any radio
communication and divulge or
publish the existence, contents,
substance, purport, effect, or
meaning of such intercepted
communication to any person.
Nardone
“…the plain words of § 605 forbid anyone,
unless authorized by the sender, to
intercept a telephone message, and direct
in equally clear language that “no person”
shall divulge or publish the message or its
substance to “any person.” To recite the
contents of the message in testimony
before a court is to divulge the message.
The conclusion that the act forbids such
testimony seems to us unshaken by the
government’s arguments.” Justice Roberts
Communication interception
timeline
Conviction upheld
W
1928
Olmstead
W
1942
Goldstein
W
1937/1938
Nardone
1934
Radio Comm.
Act
D
1942
Goldman
R
1952
On Lee
S
1961
Silverman
1967
Katz
Wiretapping evidence disallowed
E
Onset of wiretapping
1830s
Telegraph
invented
1860s
Wiretapping
during
Civil War
1870s
Telephone
invented
1880s
First reports
of
wiretaps
in press
1960s
Packet
switching
Packet
sniffers
Olmstead v. United States (1928)
The evidence in the records discloses a
conspiracy of amazing magnitude… . It involved
the employment of not less than fifty persons, of
two seagoing vessels for the transportation of
liquor to British Columbia, of smaller vessels for
coastwise transportation to the State of
Washington. … In a bad month sales amounted
to $176,000; the aggregate for a year must have
exceeded two millions of dollars.
Mr. Chief Justice Taft
Magna Carta 1215 cap. 39
Nullus liber homo capiatur vel
imprisonetur, aut disseisiatur, aut
utlagetur, aut exuletur, aut aliquo
modo destruatur, nec super eum
ibimus, nec super eum mittemus,
nisi per legale judicium parium
suorum vel per legem terrae.
Magna
Carta
Magna Carta 1215 cap. 39
Magna
Carta
No free man shall be seized or
imprisoned, or stripped of his
rights or possessions, or outlawed
or exiled, or deprived of his
standing in any other way, nor will
we proceed with force against
him, or send others to do so,
except by the lawful judgment of
his equals or by the law of the
land.
Reinterpreting the Magna Carta
Magna Carta
1215
25 Edward III, c. 4
1351/1352
28 Edward III
1354
No free man . . .
None . . .
No man of what estate or
condicion that he be …
Reinterpreting the Magna Carta
Sir Edward Coke
1642
“…for Justices of Peace to
make warrants upon
surmises, for breaking the
houses of any subjects to
search for felons, or stoln
[sic] goods, is against
Magna Carta.”
Coke, Edward. 1642. The fourth part of the institutes of
the laws of England. London: M. Flesher.
Reinterpreting the Magna Carta
William Pitt
1763
“The poorest man may, in his
cottage, bid defiance to all
the forces of the Crown. It
may be frail; its roof may
shake; the wind may blow
through it; the storm may
enter; the rain may enter; but
the King of England may not
enter; all his force dares not
cross the threshold of the
ruined tenement.”
ECPA
§ 2511. Interception and disclosure of wire, oral,
or electronic communications prohibited
§ 2701. Unlawful access to stored
communications
ECPA
§ 2701. Unlawful access to stored
communications
(a) Offense.— Except as provided in subsection (c)
of this section whoever— (1) intentionally accesses
without authorization a facility through which an
electronic communication service is provided; or
(2) intentionally exceeds an authorization to access
that facility;
and thereby obtains, alters, or prevents authorized
access to a wire or electronic communication while it
is in electronic storage in such system shall be
punished as provided in subsection (b) of this
section.
ECPA
(c) Exceptions.— Subsection (a) of this section
does not apply with respect to conduct
authorized— (1) by the person or entity providing
a wire or electronic communications service;
(2) by a user of that service with respect to a
communication of or intended for that user; or
(3) in section 2703, 2704 or 2518 of this title.