Should the expectation of privacy test apply to the Net?

Bruce Schneier who is Chief Technology Officer for British Telecommunications (BT) wrote this article which I will post concerning privacy on the internet published on Wired Magazine. I think Schneier is totally correct. I will even say that the more we are connected with information (downloads and uploads) the more we will see the privacy issue extending.

"In the United States, the concept of "expectation of privacy" matters because it's the constitutional test, based on the Fourth Amendment, that governs when and how the government can invade your privacy.

Based on the 1967 Katz v. United States Supreme Court decision, this test actually has two parts. First, the government's action can't contravene an individual's subjective expectation of privacy; and second, that expectation of privacy must be one that society in general recognizes as reasonable. That second part isn't based on anything like polling data; it is more of a normative idea of what level of privacy people should be allowed to expect, given the competing importance of personal privacy on one hand and the government's interest in public safety on the other.

The problem is, in today's information society, that definition test will rapidly leave us with no privacy at all.

In Katz, the Court ruled that the police could not eavesdrop on a phone call without a warrant: Katz expected his phone conversations to be private and this expectation resulted from a reasonable balance between personal privacy and societal security. Given NSA's large-scale warrantless eavesdropping, and the previous administration's continual insistence that it was necessary to keep America safe from terrorism, is it still reasonable to expect that our phone conversations are private?

Between the NSA's massive internet eavesdropping program and Gmail's content-dependent advertising, does anyone actually expect their e-mail to be private? Between calls for ISPs to retain user data and companies serving content-dependent web ads, does anyone expect their web browsing to be private? Between the various computer-infecting malware, and world governments increasingly demanding to see laptop data at borders, hard drives are barely private. I certainly don't believe that my SMSes, any of my telephone data, or anything I say on LiveJournal or Facebook -- regardless of the privacy settings -- is private.

Aerial surveillance, data mining, automatic face recognition, terahertz radar that can "see" through walls, wholesale surveillance, brain scans, RFID, "life recorders" that save everything: Even if society still has some small expectation of digital privacy, that will change as these and other technologies become ubiquitous. In short, the problem with a normative expectation of privacy is that it changes with perceived threats, technology and large-scale abuses.

Clearly, something has to change if we are to be left with any privacy at all. Three legal scholars have written law review articles that wrestle with the problems of applying the Fourth Amendment to cyberspace and to our computer-mediated world in general.

George Washington University's Daniel Solove, who blogs at Concurring Opinions, has tried to capture the byzantine complexities of modern privacy. He points out, for example, that the following privacy violations -- all real -- are very different: A company markets a list of 5 million elderly incontinent women; reporters deceitfully gain entry to a person's home and secretly photograph and record the person; the government uses a thermal sensor device to detect heat patterns in a person's home; and a newspaper reports the name of a rape victim. Going beyond simple definitions such as the divulging of a secret, Solove has developed a taxonomy of privacy, and the harms that result from their violation.

His 16 categories are: surveillance, interrogation, aggregation, identification, insecurity, secondary use, exclusion, breach of confidentiality, disclosure, exposure, increased accessibility, blackmail, appropriation, distortion, intrusion and decisional interference. Solove's goal is to provide a coherent and comprehensive understanding of what is traditionally an elusive and hard-to-explain concept: privacy violations. (This taxonomy is also discussed in Solove's book, Understanding Privacy.)

Orin Kerr, also a law professor at George Washington University, and a blogger at Volokh Conspiracy, has attempted to lay out general principles for applying the Fourth Amendment to the internet. First, he points out that the traditional inside/outside distinction -- the police can watch you in a public place without a warrant, but not in your home -- doesn't work very well with regard to cyberspace. Instead, he proposes a distinction between content and non-content information: the contents for example. The police should be required to get a warrant for the former, but not for the latter. Second, he proposes that search warrants should be written for particular individuals and not for particular internet accounts.

Meanwhile, Jed Rubenfeld of Yale Law School has tried to reinterpret (.pdf) the Fourth Amendment not in terms of privacy, but in terms of security. Pointing out that the whole "expectations" test is circular -- what the government does affects what the government can do -- he redefines everything in terms of security: the security that our private affairs are private.

This security is violated when, for example, the government makes widespread use of informants, or engages in widespread eavesdropping -- even if no one's privacy is actually violated. This neatly bypasses the whole individual privacy versus societal security question -- a balancing that the individual usually loses -- by framing both sides in terms of personal security.

I have issues with all of these articles. Solove's taxonomy is excellent, but the sense of outrage that accompanies a privacy violation -- "How could they know/do/say that!?" -- is an important part of the harm resulting from a privacy violation. The non-content information that Kerr believes should be collectible without a warrant can be very private and personal: URLs can be very personal, and it's possible to figure out browsed content just from the size of encrypted SSL traffic. Also, the ease with which the government can collect all of it -- the calling and called party of every phone call in the country -- makes the balance very different. I believe these need to be protected with a warrant requirement. Rubenfeld's reframing is interesting, but the devil is in the details. Reframing privacy in terms of security still results in a balancing of competing rights. I'd rather take the approach of stating the -- obvious to me -- individual and societal value of privacy, and giving privacy its rightful place as a fundamental human right. (There's additional commentary on Rubenfeld's thesis at ArsTechnica.)

The trick here is to realize that a normative definition of the expectation of privacy doesn't need to depend on threats or technology, but rather on what we -- as society -- decide it should be. Sure, today's technology make it easier than ever to violate privacy. But it doesn't necessarily follow that we have to violate privacy. Today's guns make it easier than ever to shoot virtually anyone for any reason. That doesn't mean our laws have to change.

No one knows how this will shake out legally. These three articles are from law professors; they're not judicial opinions. But clearly something has to change, and ideas like these may someday form the basis of new Supreme Court decisions that brings legal notions of privacy into the 21st century.

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Bruce Schneier is chief security technology officer of BT. His new book is Schneier on Security.

Hugo Chavez vs.Manuel Rosales

Chavez has acted what he publicly said in Maracaibo this past February, that is that he is going to put Manuel Rosales in jail. Manuel Rosales is the elected mayor of the city of Maracaibo, a former governor of the state of Zulia elected for 2 terms and was candidate against Chavez in the 2006 presidential elections.

The legal rationale behind Chavez´s intentions is an undeclared amount of roughly Bs. 147,000 (or $25,000) in gains that according to the Comptroller´s Office could not be accounted for. According to Rosales the amount was a product of yearly gains of his family´s cattle ranch in rural Zulia (cattle ranch La Milagrosa). Last week a Public Prosecutor (Ministerio Publico) flew in from Caracas to engaged a criminal action based on unjust enrichment against Rosales. The accusation was admitted by the Criminal Court in Maracaibo. Now this week on Monday, the Public Prosecutor requested a change of venue (radicacion) due to the stress of the public opinion in the legal criminal process. Obviously the change of venue was ordered by the Court and now the case will be heard in Caracas.

This is obviously a politically motived legal action against an opposing political leader that Chavez simply does not want in the picture right now. Or perhaps he is trying to steer the public opinion from the financial abyss that we are heading into...In any event Manuel Rosales prepares his defense and publicly stated that he will give face.

The list of political prisoners in Venezuela grows constantly, the problem resides in the fact that the Executive government exerts all its leverage to the Judicial System, who practically kneels and follows orders. Ivan Simonovics and Lazaro Forero, two Policemen who are in prison for more than 3 years and still have not been rendered a legal decision. Also former Zulia Police Commisioner Mazuco has also remain in prison for more than 1 year without a court hearing whatsoever.

I think the solution is a Civil Resistence movement against the ilegitimacy of the Presidency on account of its violation to the Venezuelan constitution, international human rights agreements and treaties. The acting party would be a General of any component of Armed Forces along with a representative group of social groups. The President should be held in custody with a public criminal process for every Venezuelan to see...Only time will tell.

Caracas remembers Marulanda´s death

Today people in Caracas (obviously paid by the Venezuelan government-Chavez) gathered at the Statute of Manuel Marulanda Velez to remember his first anniversary of his death. This is a very sad situation, because anyone who lives near Venezuela´s border with Colombia, knows that Marulanda was directly responsible for thousands and thousands of innoncent lives, including Venezuelans, in a personal war against the status quo in power in Colombia. He started his personal war on account that Gaitan was murdered and initiated an era known in Colombia as La Violencia.

Its sad to see fellow Venezuelans putting flowers and remembering such a violent and archaic political leader, in the sense that he never conceded this war, and brought an era to Colombia of bombings, kidnappings and all sorts of organized crime. Not counting for the ilicit drug trade involved. Marulanda´s Farc always utilizes whatever antagonist argument they could shield in name of dethroning the status quo in Bogota. This is chiefly paid and endorsed by Hugo Chavez since his government has publicly supported the FARC, has requested they are not termed as terrorists and are contrary to any politics of Colombian president Uribe and the United States Colombia Plan.

I am very sorry for those Colombians and Venezuelans who lost their lives directly or indirectly by Marulandas or his terrorist organization, the FARC.

Chavez honors Cuban Communism

Yesterday in a event with representatives of the national assembly of his supporting party, PSUV, Chavez said that the Cuban regime has reached the point of no return. Surving for decades against the American Empire. He continued to praised the Cuban regime and wished that his Venezuelan Socialist Revolution would some day be comparable to the Cuban Communist Regime.

Latifa Echakhch - Artist Review

Echakhch was born in Morocco, but her parents immigrated to France when she was a child. She has made a number of works incorporating materials such as tea glasses, carpets or couscous that provide her with a way of reflecting on her Moroccan heritage although, as she points out, they were never part of her everyday life in Paris. ‘They are as strange to me as any Westerner’, she has said. ‘I just show what I do with them. I can identify them as part of my own culture and, at the same time, they are completely alien to me. There are no tea glasses in my home.’ She has also engaged with the form filling and complex bureaucratic language that define the status of an immigrant in the West. Hospitality 2006, for example, consists of the text ‘Espace a remplir par l’etranger’ (Space to be filled out by the foreigner), which appears at the top of the application for a French residency permit. Removed from their original context and carved into the gallery wall, these words become a reflection on Echakhch’s own practice.

Latifa Echakhch was born in 1974 in El Khnansa, Morocco. She lives and works in Paris and Martigny, Switzerland.

On Fate

"If thought makes free, so does the moral sentiment. The mixtures of spiritual chemistry refuse to be analyzed. Yet we can see that with the perception of truth is joined the desire that it shall prevail. That affection is essential to will. Moreover, when a strong will appears, it usually results from a certain unity of organization, as if the whole energy of body and mind flowed in one direction. All great force is real and elemental. There is no manufacturing a strong will. There must be a pound to balance a pound. Where power is shown in will, it must rest on the universal force. Alaric and Bonaparte must believe they rest on a truth, or their will can be bought or bent. There is a bribe possible for any finite will. But the pure sympathy with universal ends is an infinite force, and cannot be bribed or bent. Whoever has had experience of the moral sentiment cannot choose but believe in unlimited power. Each pulse from that heart is an oath from the Most High. I know not what the word sublime means, if it be not the intimations in this infant of a terrific force. A text of heroism, a name and anecdote of courage, are not arguments, but sallies of freedom. One of these is the verse of the Persian Hafiz, "'Tis written on the gate of Heaven, `Wo unto him who suffers himself to be betrayed by Fate!'" Does the reading of history make us fatalists? What courage does not the opposite opinion show! A little whim of will to be free gallantly contending against the universe of chemistry.

But insight is not will, nor is affection will. Perception is cold, and goodness dies in wishes; as Voltaire said, 'tis the misfortune of worthy people that they are cowards; "un des plus grands malheurs des honnetes gens c'est qu'ils sont des lafaches." There must be a fusion of these two to generate the energy of will. There can be no driving force, except through the conversion of the man into his will, making him the will, and the will him. And one may say boldly, that no man has a right perception of any truth, who has not been reacted on by it, so as to be ready to be its martyr.

The one serious and formidable thing in nature is a will. Society is servile from want of will, and therefore the world wants saviours and religions. One way is right to go: the hero sees it, and moves on that aim, and has the world under him for root and support. He is to others as the world. His approbation is honor; his dissent, infamy. The glance of his eye has the force of sunbeams. A personal influence towers up in memory only worthy, and we gladly forget numbers, money, climate, gravitation, and the rest of Fate.

We can afford to allow the limitation, if we know it is the meter of the growing man. We stand against Fate, as children stand up against the wall in their father's house, and notch their height from year to year. But when the boy grows to man, and is master of the house, he pulls down that wall, and builds a new and bigger. 'Tis only a question of time. Every brave youth is in training to ride and rule this dragon. His science is to make weapons and wings of these passions and retarding forces. Now whether, seeing these two things, fate and power, we are permitted to believe in unity? The bulk of mankind believe in two gods. They are under one dominion here in the house, as friend and parent, in social circles, in letters, in art, in love, in religion: but in mechanics, in dealing with steam and climate, in trade, in politics, they think they come under another; and that it would be a practical blunder to transfer the method and way of working of one sphere, into the other. What good, honest, generous men at home, will be wolves and foxes on change! What pious men in the parlor will vote for what reprobates at the polls! To a certain point, they believe themselves the care of a Providence. But, in a steamboat, in an epidemic, in war, they believe a malignant energy rules."

Ralph Waldo Emerson on Fate