Category Archives: Privacy

Eye in the Sky

Man, I really hate being right all the time! Just last June I made the hypothetical assertion that in the not too distant future the government would be spying on our driving habits from the sky, “… drones so high in the sky you won’t even know they are there…will allow the government to decide if your car should be allowed on certain roads at certain times” (full comment here). Although the latter part of my prediction (using that information to restrict our movements) has not come to pass (yet), the former nearly did just begin. It was reported recently that the Department of Homeland Security (DHS) ordered (and then cancelled after massive public outcry) a plan to implement a national license plate tracking system. Yes, you read that correctly. National license plate tracking. Hello – this is George Orwell, he’d like his book “1984” back, he’s tired of those in charge using it as a guide rather than a warning.

This plan was initiated by the Immigration and Customs Enforcement (ICE) agency (a division of DHS) and was only made public because the agency (fortunately) does not have the ability to accomplish this on their own, therefore they put out requests for proposals from private companies. Apparently they were hoping such a system would help them track down fugitive illegal immigrants. Yes, clearly the immigrants we really want to deport are the ones that have come to this country and earned enough that they can actually afford an automobile. Those guys are just parasites on the system.

But, this is not something new. License plate reading is already going on across the country. Law enforcement uses it now to track down specific suspects. Presumably any information about non-targets is discarded in short order (one would hope). But even if it is not quickly discarded, the limited size of most jurisdictions constrains the degree of privacy loss to be no greater than if a few of your friends saw you driving about. The real danger, however, comes from federalizing all of these systems and assembling them into one all encompassing nationwide tracking web (Matrix?) that can determine precisely where each of us has been. Fortunately the plans were cancelled, however that does little to assuage fears that ultimately this will one day be a reality.

What did those in power learn? Don’t be dumb enough to publicize requests to spy on your citizens. Next time they will build their own solutions and we will have no way of knowing anything about them. Although the proposed system did not employ drones (as I predicted) the intended result was the same as my prediction: track people’s movement in their car. In the end though it is likely that drones will be the preferred tracking method. Our government already uses them extensively and could deploy them now with little fanfare. This fact, when coupled with a new NHTS rule that requires “black boxes” in all new cars by September 2014, could mean in the not too distant future that “upgrades” to these boxes in combination with drones built to track the unique signature of each black box will mean the government could have access to live, real time movement data of everyone on the road. Farfetched? Well, time will tell. But ten years ago who would have believed that our government would one day be tracking us on line, reading our e-mails, recording our phone calls, or spying on us through our webcams. The combination of technology and government’s insatiable desire to control the citizenry make such predictions all too easy.

Minority Report

This past Friday (December 27) a federal judge ruled that it is perfectly fine for the NSA to collect and review your phone and Internet records . Why is that? Well, those records don’t actually belong to you. This ruling is consistent with an interpretation of the 4th amendment protections against unreasonable search and seizure known as the “3rd party doctrine.” Under this doctrine anything you disclose to a third party is no longer yours and therefore loses all expectation of privacy. Since it is no longer private the government has free reign to sink their teeth into it without any of those annoying justice-impeding anachronisms known as search warrants.

Innocent until proven guilty will soon be replaced by harassed until proven innocent.

As with all government propaganda there is a thin veneer of truth that shamelessly attempts to obscure the larger lie – but these truths are about as effective in that goal as Miley Cyrus’s underwear are in making her appear demure in her Wrecking Ball video. Yes, if you disclose something about yourself to a third party that information is technically no longer strictly private (private meaning known only to yourself). However what eludes this judge and those before him is that it is possible to convey private information to a third party under the protection of a contract. The privacy policies of some companies inform their customers how the company will and will not use information collected in the course of the business relationship. This establishes a reasonable expectation of privacy concerning any information stipulated to remain private. Therefore the 3rd party doctrine does not apply (even though the government wishes otherwise) in those situations where the consumer has a reasonable expectation of privacy per agreement with the third party. It would appear the mantra of the government is that expediency in catching the “bad guys” trumps all other concerns.

The judgment in this case is moving this country backward. Back to the 18th century that is. Back then the use of the “general warrant” by the British rulers was commonplace. A general warrant is distinguished from other types of warrants (i.e. arrest warrant, search warrant, etc.) in that it permits the holder of such warrant to pretty much do anything they want. They can search anything, anytime, anywhere and arrest anyone for any reason. If the principle of the 3rd party doctrine is applied consistently in future cases then it means the federal government has a general warrant to search anything not in your house. There is therefore no barrier to the government demanding the bulk disclosure of: patient records from doctors, purchase records from credit card companies, banks or other businesses, or school records from universities. This data could then be placed into a massive database and “mined” in order to uncover patterns and connections in a futile attempt to flush out the “bad guys.” Today the bad guys are the terrorists, the drug dealers or organized crime (ironically all entities created as a result of government interference). Perhaps tomorrow the enemies will be anyone who dissents from the approved public opinion of his or her masters, that is, The State. Someday soon the world’s mightiest super computers will employ predictive algorithms upon this ocean of data as they attempt to predict undesirable future behavior. Department of Pre-Crime at your service.

Perhaps the above sounds a bit far-fetched, but remember, there is nothing in the arguments currently employed to justify mass collection of data that would preclude these alternative forms of data collection. Just ten years ago the currently revealed mass collection of data would have seemed far-fetched. Just imagine what they can do ten years from now.

In this brave new world that is fast approaching our freedom will be instantly curtailed at the pleasure of any investigatory bureaucrat who doesn’t quite like our answers as they relate to our algorithmically questionable activities. If you become ensnared in this trap then you’d better hope you have an alibi. Innocent until proven guilty will soon be replaced by harassed until proven innocent.

Invalid Means yield illegitimate Ends

Damned if you do and damned if you don’t. This sentiment pretty much sums up the state of affairs in Georgia with respect to DUI evidence collection. If a driver is pulled over in Georgia and is suspected of being inebriated, then the law requires that the officer ask if they will submit to a BAC (blood alcohol content) test. The law also permits the driver to refuse, however under Georgia’s “implied consent” laws (one’s tacit agreement with the state in order to acquire a driver’s license) any driver who refuses will have their driving license revoked for not less than 1 year. However, just as in an M. Night Shyamalan movie, there is a twist. Since 2006, if you refuse the test, the police can then get a search warrant and forcibly extract your blood. This is done in rather Guantanamo-esque style  in Gwinnet county (see video) where at least five burly officers forcibly hold the suspect down while being tightly strapped to a gurney. This dehumanizing treatment is visited upon both the resistant and compliant alike.

Now don’t get me wrong, those that drive under the influence of anything (alcohol, drugs, texting, etc) are among the vilest sort of individuals. They put their own selfish pursuits above the safety of others as they recklessly navigate our roadways. Removing such drivers from the roads should be one of the paramount goals of the police. I see no issue with sobriety stops per se. Were the roads not monopolistically owned by the government it would be equally incumbent upon private road owners to purge their roadways of such drivers (dangerous roads are bad for business). So while I object to the government owning roads (as there is no justification for state sanctioned monopolies in any industry) I also recognize the reality today is that they do own them. Therefore, as owners, they have an obligation to keep them safe. Sobriety checkpoints are a valid tool to achieve that goal. The only problem with such checkpoints from a civil liberties standpoint is when they are used as a pretext to engage in warrantless searches and seizures that have nothing whatsoever to do with driving safety.

If the goal is to remove impaired drivers from the road before they can cause harm, then this is clearly achieved via license loss. Forcing a BAC test is superfluous if license loss has already occurred. In fact, making the penalty for refusal equal to the penalty for a positive test would more efficiently achieve the desired goal. It would both provide an even greater incentive to not drive drunk while removing from the roadways those that do so anyways. If an accident has occurred and a presumably drunk driver kills someone, then that driver is not going to go free even if they refuse a BAC test; they will be prosecuted based on their actions. Absent any mitigating circumstances (like proof of being drug/alcohol free) they will incur the maximum penalty. A refusal harms no one but the accused.

The 5th amendment guarantees the right of each person not to “be compelled in any criminal case to be a witness against himself.” Obtaining a warrant to invade someone’s body makes a mockery of the intent of this amendment.  If this is not compelling someone, then I don’t know what is. If some day there is technology that can read memories shall the police be permitted to obtain warrants against all suspects and witnesses and then forcibly extract whatever information they deem might be relevant? The truth is important. Justice is important. But results are what matter. The goal should be to achieve the desired result without violating human rights and dignity. So yes, the ends do matter, but the means of achieving those ends matter even more. America, Georgia, is selling its soul for the illusion of justice and safety.

E-Verify = National ID

Over at Huffington Post, David Bier goes into some detail on how the innocuous sounding “E-Verify” may very well morph into a biometric National ID system. The comments following the article were quite depressing – the all too willing sheep take umbrage at having it pointed out to them that our wise overlords treat us as children. Here’s what I had to say to that:

These comments are pretty sad. You guys are missing the big picture. The problem is not the light onus of obtaining said ID. The problem is the classic “slippery slope”. Today it is evil “ferners” who “steal our jobs” that we are trying to control. But what will it be tomorrow? If you agree to a system wherein a citizen must obtain permission from the government to engage in Activity A (work), then you will have no right to complain when the government adds more and more activities to its Control List. With the ability to biometrically identify anyone anywhere at any time (think biometric scanning drones so high in the sky you won’t even know they are there) perhaps a “Save Our Roads” bill will allow the government to decide if your car should be allowed on certain roads at certain times (aka “road rationing”). Or perhaps in order to equalize economic resources you will only be permitted to shop at certain stores thereby forcing you to shop at others (to save jobs). Or perhaps restricted from buying certain items (“Bill is overweight so no beer for him”)
In short these systems allow us to be corralled around in our daily lives like sheep. And all of it is for our good, of course. Government is now our shepherd and technology the sheep dogs… and judging from these comments most of us are all too willing sheep.

I’ve written on this topic before at greater length, please see this page for more.