Electronic privacy

  • November 10, 2011
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School. Her research focuses on immigration and surveillance policy. She previously served as special policy counsel on immigration-related discrimination in the Civil Rights Division of the U.S. Department of Justice.  

    When it comes to surveillance, size matters. In U.S. v. Jones, the GPS tracking case, the Supreme Court just might agree.On November 8, the Court heard arguments on whether the police violated the Fourth Amendment’s prohibition against unreasonable searches and seizures when it continued to monitor Mr. Jones’ car with a GPS device after the warrant expired. During oral argument, what seemed clear to the Justices is that cyber-surveillance today is not your grandma’s apple pie surveillance. With new technologies, the Justices seem to be wondering whether being watched 24/7 may one day be as common as, well, apple pie.

    Back in the day, surveillance meant being tailed. The government sent someone to follow you around. Today, technology has given the government the capacity to track both your body and biography 24/7. And it’s not just “persons of interest” anymore. With cyber-surveillance, it’s now cost-effective to track everyone.  But, is it ok for the government to check your email, google searches, and Facebook page? Skim your credit card records and purchases on Amazon? Monitor your cell phone records and smartphone locations? During U.S. v. Jones, the Supreme Court wondered aloud during oral argument whether the government could attach GPS devices to the license plates of everyone who owns a car in the entire U.S.

    This last scenario might not be as far-fetched as it sounds.

  • June 9, 2011
    One Nation Under Surveillance
    A New Social Contract to Defend Freedom Without Sacrificing Liberty
    Simon Chesterman

    By Simon Chesterman, Global Professor and Director of the New York University School of Law Singapore Program, and Vice Dean and Professor of Law at the National University of Singapore. His book, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty, is available now from Oxford University Press.

    The death of Osama bin Laden has started a debate about whether and how the United States can extricate itself from its military commitments in Afghanistan and Iraq. It is only a matter of time before public attention turns to whether the expansion in government surveillance powers over the past decade should also be rolled back.

    Don’t hold your breath.

  • June 2, 2011
    Nothing to Hide
    The False Tradeoff between Privacy and Security
    Daniel J. Solove

    By Daniel J. Solove, John Marshall Harlan Research Professor of Law at the George Washington University Law School. Solove will have a signing of his book at Politics & Prose in Washington, D.C. on July 9 at 6 p.m.

    A battle is raging in Congress and the courts about various forms of government surveillance. Federal courts have reached conflicting conclusions about whether the Fourth Amendment provides any protection against GPS surveillance by the government. The government is pressing Congress to allow broad access to location information. And Senator Leahy recently introduced a bill to update the Electronic Communication Privacy Act (ECPA), the law that regulates government access to our Internet records, among other things. 

    The debate between privacy and security remains vigorous, and the outcome of this debate will have profound effects on the scope of government power for years to come. My book, Nothing to Hide: The False Tradeoff Between Privacy and Security, is about how we should have this debate. For a long time, pro-security proponents have been using a set of arguments that are skewing the debate toward the security side. My book is written to put some of these arguments to rest.

    One of the prime examples of these arguments is one I refer to as the “All-or-Nothing Fallacy.”  Many people contend that “we must give up some of our privacy in order to be more secure.” In polls, people are asked whether the government should track people with GPS or wiretap people’s communications if it will help catch terrorists. Many people readily say yes. They conduct a balancing between the government having powers to monitor terrorists and privacy. “We certainly want the government to be listening,” people say. “If there’s a terrorist running around, we want the government to be tracking that person.” It’s hard to disagree. In the balance, privacy loses. 

    But this is the wrong way to conduct the balance. Rarely does protecting privacy involve totally banning a security measure. So when civil libertarians call for greater protections against government access to Internet use records or when they argue the Fourth Amendment should protect against GPS surveillance, they are not proposing that the government can never get its hands on the records or can never use GPS to monitor people. It’s not all-or-nothing. Instead, privacy protection merely means that these forms of surveillance should be regulated by requiring the government to justify before a court that it has probable cause to believe the surveillance will reveal evidence of criminal activity. 

    What does this mean for balancing privacy and security?

  • April 26, 2011
    Video Interview

    Social media scholar danah boyd, a senior researcher at Microsoft Research and a research associate at Harvard University's Berkman Center for Internet and Society, recently spoke with ACSblog about young people, privacy, and the Internet.

    boyd explains why young people gravitate toward social media sites as a way of figuring out their place in the world, and why she believes the Children's Online Privacy Protection Act (COPPA), while well-intentioned, is not working the way it should.

    While COPPA was designed to require parent permission for children younger than 13 to participate in social media, the law has, in effect, created a ban for children younger than 13, with both parents and children systematically skirting that ban by lying about the child's age, she explains.

    “Parents are finding themselves written out of this and disempowered by the system, and they’re teaching their kids to lie,” boyd says.

    She suggests that education about use of social media is a better solution than age restrictions.

    Watch the full interview below.

  • March 15, 2011
    The cyberspace advertising and search engine behemoth Google is increasingly drawing the attention of Congress.

    As noted by The Wall Street Journal, Sen. Herb Kohl, chairman of the Senate Judiciary Antitrust Subcommittee "may hold hearings on Google this legislative session to examine whether the company is abusing its dominance in the Internet search market."

    In a press release, Kohl lays out the agenda for the subcommittee's work during this congressional session, including an examination of "Competition in Online Markets/Internet Search Issues."

    The statement continues:

    In recent years, the dominance over Internet search of the world's largest search engine, Google, has increased and Google has increasingly sought to acquire e-commerce sites in myriad businesses. In this regard, we will closely examine allegations raised by e-commerce websites that compete with Google that they are being treated unfairly in search ranking, and in their ability to purchase search advertising. We also will continue to closely examine the impact of further acquisitions in this sector.

    Google is already facing official scrutiny over its search-engine tactics in Europe.

    The New York Times reported in February that the European Commission "began a formal antitrust investigation of Google three months ago looking for evidence that Google had the power to shut out competition and restrict advertisers from doing business with other search engines."