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
Why do we care about privacy
• Why do you care, or not, about
privacy?
• Why does society protect it, or
not?
• Reflections from what we’ve
read this semester?
What does it protect?
• Literally?
• Figuratively?
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?
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.
Scope of 4th A Protection
Katz v. U.S. 389 U. S. 347, 353 (1967).
• “the Fourth Amendment protects people—and not
simply ‘areas’…the 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)).
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
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”
"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."
Status Quo, Technology, & Law
“reasonable expectation of privacy”
Dog sniff Aerial photography
Thermal imaging
data in networks?
• The interception of communications,
transactional data during transmission.
• The acquisition of stored communications
and transactional data.
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
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
Legal Standards
• Basic Subscriber Information: Subpoena or
better (Gov’t 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 < 180 days: search warrant
• Stored Content > 180 days: subpoena or
better
• Opened v. Unopened -- ct doesn’t matter;
doj says once opened no warrant required
1
Home Energy Use
(Pot diaries)
• Story of Starkweather
“The public awareness that such records are routinely maintained…negate[s] 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.”
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?
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
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
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
2
Responses
• Legislated click
• Bans on camera phones in some places (you
may see me but you can’t prove that you
saw me)
• Upskirt laws
• Barak Obama privacy zone
• HP anti paparazzi patents
“…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
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
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
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.