I can program (in many languages). People looked at me 10 years ago like I had 3 heads when I told them that I didn't belong to FB or Twitter or any of the other privacy-destroying apps. Analytics? Big Data? AI? Give it a rest. Do you really buy all the gadgets that they are selling you? Privacy is now a big issue. Don't say I didn't try to warn you. Zuckerberg lied to Congress. And he lied with his hand on the bible. Are you really cool with that?
3
The quaint old standard of using reasonable expectations was developed in a much simpler time. That simple standard should not be the sole benchmark for user privacy in the cyber age. The right answer is for Congress to develop strong standards of personal data protection regardless of expectations, similar to some of the European standards and practices. Will that happen? Not likely in the current political environment...
3
Zuckerberg and others who profit from our data may mock our expectations of privacy and in a cynical attempt to erode those very expectations. But it seems like the strategy is working more on this columnist than most of the people I know, many of whom are young.
We may not be surprised when we learn of another data breach, or vampire-like data-thirsty business model. And yes, we may not expect all our data to be private. But getting savvy about it all doesn't mean we're dropping our expectation that sensitive info remain private--especially since many of the business models rely on companies' promises that certain data do remain private.
Ironically, this column does as much to erode the expectation of privacy than the supposed carelessness of kids-these-days.
6
My previously last automobile I purchased, I chose a theft recovery, deterrent and locating device (LoJack) as my car insurance gave a discount to my policy. It led me to believe I, and my car, could be pinpointed should the case would ever come up. They had to install a device under the hood in some ‘top-secret’ location.
It also made me imagine that perhaps, the ubiquitous conventional car alarm device, that everybody ignores, because of the inadvertent setting-off happens so frequently, mockingbirds and other song birds now imitate them. These are also ‘third-party’ installed devices. Could these be easily tracked by, say your lender, should you be behind in your payments, besides all the conventional information they would have on the record?
Former congressman Darryl Issa, one of the richest persons who has held office, made his fortune in selling those type of car alarms. He was such a shady politician and businessman, I would not be surprised to find out if his company spied on his customers, or sold their data, because he could bury something in the fine print about third-party doctrine.
2
Every corporation has finessed your privacy. Decades ago you could not get a phone without surrendering you SSN. Every transaction online requires you to submit everything, and surrender any remedy.
To live in today's world you need to bow to corporations, giant or less than giant or you cannot live. Few of us live off the grid so avoidance of the 3rd party doctrine is ludicrous.
When our elites, politicians and otherwise, are forced to bear live under the same conditions as the rest of us, they will understand. I recall the great Senator from CA was all for the NSA surveilling citizens until she found out they surveilled her office. Outrageous. Next she will believe that those online 'contracts' are enforceable when you buy software....
My position is everything should be available to everyone all the time. Or else normal citizens should have a real remedy against such intrusions while still be living in the modern world.
A well-written article, Ms. Wolff!
Our society’s insatiable thirst for ‘free’ information has led us to this conundrum, where a dystopian reality beautifully illustrated by George Orwell in ‘1984’ awaits us.
Collection of metadata and personal data is at the heart of the business models that Silicon Valley giants such as Google, Facebook, Amazon and to a smaller extent, Microsoft employ.
The ‘insidious’ monitoring of all users’ activity, be it digital or physical or both, is creating a ginormous repository of data that is ripe for abuse and misuse as evidenced by the Cambridge Analytica fiasco, affecting users not just in the US but also in Canada and the UK.
This worrisome trend will continue unabated into the next Presidential with even dire implications for US democracy and the expectations of privacy, barring of course, a swift and entirely ‘unlikely’ response from the Executive branch on the issue at hand.
Once again it’s up to the electorate to demand these protections from the Corporations through ‘user-led actions’ such as boycotts and divestment or ‘forever hold its peace’ as a totalitarian era of fascist policies await the Republic in 2020.
Long live the US Constitution.
2
Do we have ANY privacy rights?
I stopped using all of Google's services a few months ago, along with almost all social media. It seems absurd to me that people will complain about "the government" keeping tabs on them by requiring a license to drive, but will then freely let a private company with zero oversight or regulation collect literally every single detail about their entire life.
Do you know what Google does with the data they collect? I don't, and I know you don't either. No one does, except Google. I do know what they CAN do with that data: literally anything they want. LITERALLY. ANYTHING.
Why doesn't that worry anyone?
5
The third party doctrine is essential to the business models of Facebook, Google and Amazon, but the manner in which those companies (and other Silicon Valley companies) have exploited this ruling presents an unparalleled threat to our liberal democracy, and to our personal safety.
While this news outlet and other major news outlets prattle on and on about Trump and Putin, the third party doctrine has enabled enormously powerful companies to collect personal and sensitive information that could easily be used to blackmail or otherwise persecute persons with unpopular tastes or beliefs. It is the height of hypocrisy in this context for the Washington Post, for example, to dramatically warn us that "Democracy Dies in Darkness" while WaPo's owner, Amazon's Jeff Bezos, continues to market products that can be used to surveil the consumers who are foolish enough to buy them.
Although it is quite clear that re-visiting and reversing the third party doctrine would likely send the stock prices of Google and Facebook into free fall, the status quo wherein massive amounts of personal information is rapidly collected on all of us (including children) without genuine informed consent and as a condition of owning a smart phone or using the internet is something that would have been deemed unacceptable and dangerous not only by our founding fathers, but by any supreme court up through at least 1988.
1
You can "reasonably" expect privacy on your cell phone and every other tech item that is used to invade our privacy as well as online. We don't ask for this because??? Oh yea Our Representatives have failed to do their jobs of protecting us and let society be groomed to allow these violations of our privacy because it makes money. I suspect many of these "representatives" have made laws to further erode this right. A recent FBI director has even stated openly that he does not believe we have a right to privacy!
Privacy is not explicitly by name in the Constitution because they could not imagine we could do what we can now. It is still very clear in the 4th amendment that they intended for us to have privacy and control over our "personal papers" which was at the time the residence outside our minds of the people's most intimate thoughts and ideas like our tech devices are today. Tech devices and the programs on them are not third party for the purposes of "turning or handing over to". Those programs are necessary for the operation of the device thus are part of them. EULA et al = to a Coolie Labor contract.
Expectation- 1 : the act or state of expecting (The point of the word being that failure for the expectation to be met is unreasonable.)
Belief- 1 : a state or habit of mind in which trust or confidence is placed in some person or thing (You believe when you do not know. If you know, you know, you do not have to believe.)
Reasonable- 1 : being in accordance with reason
1
Most people just shrug their shoulders, and say: "I don't care because I don't have anything to hide." But once they realize how much they're being manipulated by their data they change their tune. Once that happens, they stop using social media; they stop using 'free' on-line services; they stop using a smart phone; they stop doing business with anyone who hands your data out (despite the laws).
2
The headline on the homepage is different than on the Opinion Page. It says:
—What Happens When We Stop Believing Our Data Should Be Private?
That's a far cry from:
—The courts have shielded information when we have a “reasonable expectation” it will stay private. What happens when we stop believing?
"Should" and "will" set two totally different contexts. We need the courts to rule that data "should" stay private, giving force to the concept that data "will" remain private, and placing sanction on companies that don't maintain that privacy.
The Fourth Amendment protects people from government actions, not private party actions. If I provide information to my bank, I still should be able to retain my expectation to the privacy of that information from the Government. It should still require Judicial oversight such as a search warrant before the Government is allowed access.
I agree with another post here, which compares the ISP to the Post Office. When I send data through the ISP, it should be treated just like a letter. I am giving the ISP permission to use their facilities to process my data to the other party. It requires a warrant for the postal service to open a letter and read it's content. The same logic should apply to emails or other electronically transferred data.
If the Government wants to see the content, they must provide probable cause to the Judiciary that the transmission likely contains criminal information or is in furtherance of illegal activity. This is part of the checks and balances we are guaranteed.
I don't see how this is a difficult principle to apply since it closely resembles the past applications of the law. The Bill of Rights provides protection from the Government. If private parties give your information to the Gov without your permission, there would seem to be a private cause of action and an improper search under the 4th. I see a clear distinction from their using it for marketing and commercial reasons since the protection is from the Government's actions.
2
@Two Percenter
The problem here is that the private parties you refer to, like ISPs, function like public utilities, and the manner in which our society is structured (where publicly held, private corporations are collecting our data) do not really permit people to opt out of this invasion of privacy.
Love it or leave it, our system is law by adjective.
Law students in the Western tradition learn in their first year about the "reasonable" person, "minimum" contacts, "unreasonable" searches, and others.
Like beauty, reasonableness is in the eye of the beholder.
Prof. Wolff captures the expectation conundrum perfectly:
If a thing happens often enough one comes to expect it. If rights are measured by expectations, the thing becomes the legal norm, particularly if we allowed it to happen.
Landowners know if they let a trespasser remain on their property long enough, the trespasser owns it. It’s the landlord’s own fault.
We have given up our privacy for the convenience of big data.
Oops! Gotta go – Google Maps says I’ll be late to work if I don’t leave now.
Are we really turning our data to our ISP? Or is it more like turning over a first-class letter to the Post Office? In both cases, the agency purports to be merely a carrier of your data to another human you intended it for. In times when technology vastly leapfrogs over existing laws & protections, we need to redefine antiquated protections to continue the spirit of the law into new territory. A couple of decades ago, a couple ran an internet bulletin board in California that had sexually explicit material on it. By the "local standards" test, this did not violate the moral norms in their city. The government, however, was striving to shut them down, so they had a postal inspector in rural Tennessee log onto the site and, at his own instigation, download sexually explicit material. Then the California couple, being now judged by rural Bible Belt standards, was accused of pornography and convicted. If it had been a couple more decades earlier, and the California couple had simply run an adult store, the Tennessee postal inspector had flown to California, bought an adult magazine, & flown back to Tennessee, he would have been the criminal for violating his own community's standards. Since the couple hadn't knowingly supplied him with adult material, but he had electronically downloaded it anonymously at his own instigation, the law should have understood the analogy & thrown out the case. But a rural Tennessee court didn't understand the true parallel & misapplied the law.
1
Secrecy seems to be the bigger problem. How many decades after Watergate has it been that we finally hear the Nixon tapes?
How did that misinform all the votes that have been cast since?
Now, how many decades to hear the full Trump story? Will they wait until we are dead? Apparently so.
A propos the absence of the word "privacy" in the U.S. Constitution, it is also true that the word "freedom" does not appear there. The fourth amendment protection against unreasonable searches and seizures can reasonably be applied to prohibit the government from tracking our whereabouts, or seizing the personal information we share with banks, merchants, and other third parties.
2
@Robert Crosman
The banks, merchants, and other third parties share your personal information and metadata with each other. Big Brother is watching you, but only to make money off your activities and life. Of course, if you threaten their ability to make this money (by supporting or voting for politicians who will limit them, for example), they are liable to do what they can to neutralize this threat.
But they arent the government, so it is OK. They dont want to run your life, just make money from it and get you to live so they can make that money.
@Robert Crosman
I think we need to require these "third parties" to be as secure as we expect the government to be.
The agreements they have forced on us are not any more valid than the labor contracts the British got illiterate Asians to sign as they replaced slavery with an even crueler system.
Our modern legal system is based on the lie they imposed then which is that we are responsible to live up to contracts we have been got to sign by whatever means even if we do not understand it or the person with the fiduciary duty to inform us of the meaning lies to us!
There is no problem here that electing honest representatives to do our work for us properly could not fix in a year.
The question raised here about privacy is particularly urgent as many corporations are attempting to push the internet of things on us in order to get data they still do not have access to. In Silicon Valley these data are referred to as "dark data" and these corporations believe it theirs for the taking which seems to be the case since the US government remains on the sidelines not protecting the public from the market-driven voracious appetites for data of these corporations. Will resistance against the internet of things even be possible? Will we simply have to accept a life where sensors are everywhere including in our homes tracking just about everything we do?
2
After reading an article regarding Google following everything I do, I disconnected location from the settings. Later on when I went to order a car from Lyft, Lyft could not find my current location. So if Google does not know where I am, no one does?
2
@Lucifer
Google made a very great effort to make itself indispensable to every single online presence. When they could not convince people to let them have access they acted to do harm to those entities. There were a few stories when they got caught but mostly it was an offer you could not refuse situation when they came calling and an awful lot of people who should know better were oh so happy to let them while vilifying anyone who pointed out the danger involved.
So yes.
1
I need to buy a new wallet. Every wallet that I can find for sale in my home town carries a chip that will track me, on the paradoxical excuse that this will protect my ID. I'm going to have to go to a lot of trouble not to add to the ways that I'm being tracked. Companies are trying to make sure that we don't have a choice to be private. Given that it's already a thing to put chips in pets, when will we hear that we all ought to carry chips in our own bodies "in case of a medical emergency"? We need to claim legal ownership of our information, so that it still belongs to us even when collected, and can't be used without our active consent, which mustn't be one of the terms of doing business.
2
@Stephen Merritt
reagan et al gave that right away in his first administration when they set p the credit rating corps to go national.
I grew up after the GPS revolution.
I would expect location and metadata to require a search warrant to review. The data can exist but no one should be allowed to see it without a warrant. A more prudent approach wouldn't collect the data at all without the warrant first.
The strange thing about digital technology though is you basically can make yourself private. How private depends on how much you're willing to give up and how much effort you're willing to go through.
The NSA will find you if they want to find you. However, for the average citizen, an unlawful government search is pretty easy to avoid. If you're not doing anything flagrantly illegal, you can easily make your data hard enough to sort through that no one would want to bother. Most of us just aren't that interesting.
Where we run into trouble is where the digital world intersects with necessary parts of the real world. A social security number is the layperson's example. You're going to enter the number into a website at some point. There's almost no way around it.
I'm required to use my SSN for certain purposes in the physical world. I therefore have a reasonable expectation that number will remain private. However, once that number touches the internet, there is no way for private or public entities to ensure it remains private. Therefore, even asking for the information violates my 4th amendment rights.
If you can solve that paradox, we might have a solution.
@Andy - IRS law says that you must only show your full SSN in two cases. You must show it to an accredited IRS agent and you must put it on your W-4 form when you are hired so that FICA taxes can be allocated to your account. We have turned the SSN into a universal identification & tracking number, much as the IBM Holorith punch card number the Nazis tattooed onto the arms of Jewish slave labor. A bank, for example, does not have the right to make you produce your SSN, but they do have the right to refuse to sell you a car, so you are coerced to produce it. The same is true of every other case where your SSN is "required." You are protected by law from giving it, but you will be denied the service if you don't. The SSN has become our universal arm tattoo by which our financial & other dealings are extensively tracked, recorded, & associated to each other. Instead of a law requiring only 2 agencies that you must share your number with, we need a law saying all other agencies are either forbidden from asking for it & not denying you goods or services for failure to give up your right.
2
@Beartooth, By SSN you mean cell phone number right? It’s much more commonly used since it’s a unique identifier and often stays of people for years, but there are no protections around it.
1
@EG
They use both.
People try to scaremonger about online data but they don't actually ask what the data is. The vast majority of it is general information that is not by any means private. This is information that anybody could gather on you by simply asking people you interact with one or two questions each about a specific activity or trait of yours, but the internet speeds up the process and aggregates the results into a huge bundle. It's only really useful for selling things to a person based on their habits and preferences.
As an example, baristas and waiters remember regulars' names and their favorite orders. You could ask coworkers what time you usually show up at work and when you usually leave and what you eat for lunch. Friends and family members know your birthday, what your likes and dislikes are, probably your politics too. Asking them a couple questions isn't illegal or a violation of privacy.
None of what I described is private information, it's information known to anybody you interact with and that you regularly share with others. Even if you never used the internet some amount of this stuff is probably collected about you under a label with your name on it.
Actual private information is rarely asked for online: medical history, financial records, personal identification records, legal history, etc. I think (I hope) most people would hesitate to upload any of this stuff to a website, because that's what can be used to impersonate you, rather than sell you stuff.
@Joel
Your dismissiveness about our data is disturbing. This data is aggregated. If you believe it's just sales-oriented now, you're mistaken. The data will not go away, it's being bought by insurance companies, for example. Perhaps you're okay with your locations being tracked, but you'd feel differently if you were being stalked.
DNA tests, the Internet of things, home devices that listen to what we say, license plate readers, it all aggregates. It's far more serious than someone talking to your neighbors.
8
@Joel I think you might be missing the important legal distinction between private and privacy. Privacy under the 4th Amendment (which is the focus of this article) gets to a government's ability to access information without taking certain steps required for due process of law. The GPS example is a good one -- If A and B go to the mall and A kills someone and throws the body in the river, the police can, without a warrant, get the necessary information from B that places A in both spots (i.e., its not private), but the police cannot pull the GPS information from A's car without a warrant because A has a reasonable expectation of privacy of that information.
The article's very (very very very) valid point is what happens when we no longer reasonably believe the collected information is being kept private. For example, what if A knew and agreed to allow the GPS data to be shared with another party for some purposes? Would the police need a warrant at that point? Or, in a similar vein, do we really expect that Alexa or Siri is not listening and recording everything we say for use by third party actors? Alexa's maniacal laugh seems to indicated otherwise.
2
This raises extremely important issues and it is difficult to see our political and judicial institutions keeping up with them. I do think that more emphasis should be put on the extent to which the individual's privacy is actively harmful to other members of society. The individual who privatizes her medical data may actually be harming others in that she conceals evidence that could be used to find cures for diseases or to improve health practices. The insistence on privacy of cell phone information may actually prevent the apprehension of dangerous criminals, etc. We seem to start from a default position that privacy is good. We should start from the position that from a societal perspective it is neither good nor bad, while remembering that information about one individual can be abused by others.
@Kathleen
Why should we start from a neutral position?
You really have no right to my medical records or cell phone information.
2
@Kathleen
You're right Kathleen. Along similar lines, someone whose political or religious beliefs are at odds with yours may pose a danger to you, because they might vote for someone you don't like, or otherwise think the wrong thoughts.
Privacy is essential to dissent. Dissent is essential to a liberal democracy. You don't hurt others by keeping your medical history or most other information about you private.
1
"...one advantage to having an older, less tech-savvy judiciary is that their ideas about privacy were formed during an earlier era when it might well have been reasonable to expect that the police would not be able to obtain a week’s worth of detailed location information about you."
My children aged 15, 20 and 21, have no real concern for their personal data. Our older children and one of our nephews, have been at our house with groups of college friends for weekly hosted meals. All attended local schools. I am known as "The Luddite" because of my regular challenges to their attitudes towards technology and it's impact on our privacy. The lack of awareness and concern has been consistent, including my 15 yo and his group of peers. This generation specifically, behave like wild animals who have no contact with humans and show no fear because they have not learned the dangers they represent. I am hoping that my conversations at least, plant the seed of fear and awareness. I am happy to be seen as an alarmist because when they are mature enough to understand the situation for what it is, they will hear my words and hopefully, lights will come on. We are in trouble, they just don't know it.
12
Other than for such things as credit card and bank account numbers, which must be protected to keep people from stealing from us, privacy is highly overrated. Much of what we want to keep private involves personality traits that we should be comfortable having others know about. The loss of privacy may go a long way toward allowing us to become more comfortable in our own skins. Soon there will come a paradigm shift in human thought that will make many forbidden traits acceptable.
In the near future, we will program the human mind in the computer based on a "survival" algorithm, which will provide irrefutable proof as to how we trick the mind with our ridiculous beliefs about what is supposed to survive - producing minds programmed de facto for destruction. These minds see the survival of a particular belief as more important than the survival of us all. When we understand all this, we will begin the long trek back to reason and sanity.
See RevolutionOfReason.com
I don't worry so much for myself, as I'm an older person who understands and values privacy. I have a flip-phone, and aside from buying from a couple of online vendors and commenting here and a couple of other comment threads, don't do social media at all; no facebook, Twitter, Instagram, or what have you.
But I worry for our young people who grew up with, and are habituated to, a multitude of gadgets. They already have no privacy, but don't miss it because, having grown up without it, they don't understand the value of it.
As a teacher of seventh-graders, I also worry that the more information is at their fingertips, the less they will be able to think for themselves and will be more easily manipulated. I find that prospect horrifying.
4
Re: "If you don't expect secrecy, you won't get it", J. Wolff does not address the question of turning your location data off in your settings & turning it on only when needed to use an app like maps.
In other words default location setting off & on only for time in use by app. In this case, seems like you do have an expectation of privacy that would not be in line with her argument.
Moreover, if location setting is off, are firms such as ISP's & cell phone providers still tracking, logging & saving to a log/database, your every move? (yes/no Prof. Wolff?)
1
I don't think we're learning a new set of expectations about privacy. I think we're learning to live in a state of passive ignorance about who's watching us & why. We're learning to accept our powerlessness.
We've been told that we can't have our technological toys unless we submit to surveillance & manipulation, so we submit & pretend that it means nothing. Our lives have been reduced to data, and data has been made into a pure commodity. As capitalism entails both wealth & relative poverty, people who can afford to hire and others who need to earn, digital capitalism entails both the power of Big Tech's knowledge and the powerlessness of our ignorance.
9
The bigger issue that is rarely mentioned in ALL discussions of data and privacy is that some/much of this tech data is flawed and the courts are not equipped to determine when “bad” data is presented by prosecutors as “fact”.
Mere mortals and “average Joes” lack the resources or technical knowledge to credibly refute tech data errors but rather know they are error prone by our own user experience.
One minor example of this phenomenon among many I have observed; I travel frequently and use an iPad to read the NYTimes daily. The embedded ads are frequently for merchants local to where I am at the moment. This is a helpful tool directing me to local shopping in an unknown locale.
However approximately 3-4 days every week random ads in the wrong location (state or even country) inevitably show up and remain in my ad rotation for days.
Some algorithm somewhere between my iPad tracking and The NY Times app have conflicting data about my actual location at any given time. As the saying goes-“Is this a feature or a bug?” I know this is an error. How do I convince a jury of this if it ever came to that?
2
What does it look like when people lose faith in government? This article is one example. The government allows two decades of unrestricted cell/GPS development and now a generation raised on it believes privacy is both impossible and undesirable. Oops.
Sadly, as Wolff implies, this is not limited to just tracking and cell/wifi use or just to privacy. Politicians and pundits now regale us with reasons that government can't be trusted: the 'Deep State", the IRS, the FBI, Big Money control of Congress and elections, foreign threats, and the general proposition that government is doing nothing for you while it takes your money, and all politicians are liars and crooks. "That is just how the game works."
If we do not trust government to fix our problems then we are sure they cannot fix government either. All hope is lost. Every person for themselves. Don't vote, all elections are rigged.
If we do not participate in governments and demand our right to privacy and all our other rights, than our government is already failing. Too bad for us and for the world.
Your data is Your data. Participate and demand yout right to privacy and your right to good government.
7
I don't believe that democracies can stand up under these sorts of intrusions. There will be no good ending to this. Glad I grew up in the 50's. Sad for my kids.
2
With the rise of the internet and social media and drones and smart technology the American patriots Edward Snowden and Chelsea Manning taught Americans to expect Uncle Sam to always be snooping and spying on us without our consent and with no proper legal authority.
Aided and abetted by active and/ or passive government collusion,complicity, conspiracy, cooperation, coordination and corruption with the private sector.
Corrupt crony capitalist corporate plutocrat oligarch American welfare kings and queens harvest our personal data for their profitable advantage. Like a swarm of locusts by day and a gathering of cockroaches by night
There is no reasonable expectation of privacy from an illegal and immoral invasion any where or time in America.
That should be totally unacceptable in our divided limited different power constitutional republic of united states.
Every branch of government is populated by the elected and selected hired help of the American people.
2
A good rule of thumb:
If a search engine, an app or just about any digital platform is "free" then YOU are the "product."
Our privacy, all of our private data. is routinely traded and sold and mega tech corporations are making a killing using US as the "product," which, in turn, is sold back to us, like a human centipede.
4
If you and I get into an argument in a bar, you could have a "reasonable expectation" that I might punch you in the nose. But that expectation doesn't make it legal for me to actually do it! Congress ought to recognize the same simple principle when it comes to safeguarding our privacy... but it won't. There's too much big money at stake.
2
Here the text of the 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.”
It’s clearly about limiting “unreasonable searches and seizures”. So is giving your information to say, Facebook, a seizure?
2
Excellent. Thank you. And can we not drive across town without their checking all the traffic light cameras? How about a jealous ex husband checking his ex and her men friends’ locations?
3
Privacy is tied to legality, legitimate behavior and disappears with criminality. Just ask Trump.
1
The environment of the novel "Nineteen Eighty-Four" is here. In fact, it starts with a police drone spying in a window! The two-minutes hate (Fox News and talk radio). The video screen that broadcasts and listens in houses (Alexa and similar technology). The memory hole (alternate facts and official lies). Make your own list when you re-read it.
8
I feel like I'm in a vampire movie where data replaces blood.
3
THE LATE DIVA SCALIA Proclaimed that the Constitution does not provide the right for privacy. He was right. Just like Trump is right that there was no collusion. The reason being that neither is a legal category. Still, the 4th Amendment provides for protection from unreasonable search and seizure. The meaning of "unreasonable" has changed by orders of magnitude since the advent of the Internet. Suddenly communications were instantaneous, including purchases (with the unintended result that porn is the most lucrative product for sale on the Internet). The parameters of what is "a reasonable expectation" shifted radically, since business require that you agree to give access to confidential information in the form of credit card numbers, addresses (both for snail and email) and other forms of identification such as driver's licenses, etc. Some vendors require that you install cookies on your computer that give them access to all sorts of information having nothing to do with the purchases you make from any particular vendor. Predictably, you'll find that online purchases can be completed with breathtaking speed. While contesting errors and getting service, leave alone being able to speak with a person whose English is intelligible, is reduced to a far slower pace than snail mail. OUCH! Some vendors have consumer protections for purchases. Just don't expect to get a human on the phone. It's all done online. You have to pick the right questions and weblinks to OZ!
2
This is a very interesting question. It gets better the more it is explored.
The courts gave a rather lazy answer to the question of how much privacy we should have. They just said we should have what we reasonably expect.
That is like the definition of pornography, "I know it when I see it." It is empty.
As our expectations are disappointed, and as technology of getting and keeping data gets more powerful, this empty answer gets steadily more useless.
Yet how do we give a first answer to define our right of privacy? It comes from a "penumbra" and it is "defined" as what we expect. There is not there there.
We need a formal right to privacy. It should not be for the court to invent wholesale. Certainly not for the pundits to pronounce.
Rights come from laws, and later can be enshrined in the Constitution. There is no other way out to do this.
So far, there is no attention being paid to this need. There is lots of talk, but not about creating real rights and the definition of those rights. It is only grandstanding by politicians and tut-tut from pundits, nothing more.
So Democrats, propose a law, create privacy "rights." Lets see if Republicans will oppose that. They might not, at least some of them. It might even get done.
1
Building on Dr. Wolff's article, I do not believe it is necessary for a judge to be tech-savvy or young or old. Perhaps older is wiser, certainly as a judge, more confident with experience in what is hopefully a wise application of law and precendants.
...
As for the internet and metadata......the original purpose of the internet was for the fast, open sharing of scientific data. Privacy was not an option. Once uploaded, your data was there in front of God and everybody.
Where the concept of "free" and "private" internet came from is something I cant understand....maybe it was a genius sales ploy devised by Steve Jobs and Apple Computers.
The explicit purpose of GPS is to Track. The complex satellite network was not created to NOT track. To demand that a device designed to track... to NOT track is,,,, in retrospect, a little ridiculous.
Data Mining. This is how the 21st Century Silicon Valley Robber Baron makes his/hers money. And it is the data mining operations that need to be tightly regulated and .....TAXED.
At present we are allowing a misuse...an abuse...of public domain that parallels the misuse and abuse of the public domain done by the old time RR Robber Barons of the late 19th century.(which was also by design).
@Wherever Hugo - "The explicit purpose of GPS is to Track."
No.
The explicit purpose of GPS is to provide timing signals for you, or your device that interprets those signals, to determine where you are on the globe. It isn't to allow others to track you. If is for you, or your ship, aircraft, tank, to know where it is. Unless I want them to know, such as OnStar for emergency services, no one needs to track me. Nor should they be allowed to without my permission.
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Actually, in the early days of the Internet, privacy was an option. There were passwords to sites, required memberships to access and fees followed shortly.
I was there.
An excellent and terrifying piece.
I think back over the past two+ years and realize how much my expectations about how the federal government should operate have grown numb in the face of a tsunami of ethical and professional breaches of conduct by all three branches. That which now happens so regularly that it is almost comically commonplace would have been unthinkable in February 2017. I am grateful that malfeasance still merits headlines in the Times. When we become so enured to the miasma that it ceases to fall into the "man bites dog" category, the basic principles of American democracy will be consigned to history.
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Maybe the standard should be what we expect SHOULD be kept private, rather than what we expect to be kept private. Keeping any data private is a challenge and many of us no longer expect it will be kept private. But it doesn’t mean that we expect that the data shouldn’t be kept private.
We expect our health information to remain private. It should, but it won’t. In other words shift the basis to the type of info and away from expectations.
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A few days ago a medical breakthrough was reported here regarding being able to convert brain waves into speech. Just think where that will take us in a few hundred years (or decades) re rights to keep our thoughts private.
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This isn’t surprising. We have a constitution that’s approaching 250 years old. The framers were clever people but they couldn’t possibly foresee how history would unfold and the further we get from the founding the greater the disparity between their ideals and ours. We can’t expect the Fourth Amendment to carry water for the whole tech era. We’re coming out of a period of relative stasis in Constitutional law in which the court largely focused on better defining the status quo. But the next era will shape up to be more like the Warren Court in which we had the Miranda ruling, Brown v. Board of Education, and its aftermath Roe. But it’s reasonable to expect that one or more amendments might need to be written that deal with privacy, especially in the computer age. This would run headlong into Roe which would necessitate a more liberal Senate and a few more state houses.
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There is a fundamental right to privacy in the Constitution. The correct statement is that there is no enumerated right to privacy in the Constitution.
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@Sequel ?? Please elaborate.
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@Rethinking Privacy rights are protected in the Common Law and ancient tort law. That law belonged to the former colonies, and the federal constitution did not need to address them. The 9th and 10th Amendments were specifically included in the Bill of Rights to ensure that federalism would preserve the States' freedom to protect those rights.
Enumeration of a right is not required for any right to be fundamental.
Facebook's collection of data by non users (ghosting) is particularly aggravating as are all similar outfits that collect personal information for sale. I would love to see a simple "opt out" or a review and delete system in place as well as any indication identity has been stolen indicated in existing systems. We need a system that creates validation of identity surety in the event it is stolen or conflated with another.
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I think that the Fourth Amendment is about protection of persons against unwarranted action by the State.
Privacy apparently became an issue in the 1870's, leading to the 1890 article on The Right to Privacy by Warren and Brandeis in the Harvard Law Review. The privacy concern was developments in photography, i.e. new technology. New technology required new protections. Even then they certainly did not foresee the information technology of today and its impact.
Capturing of personal data is pervasive: eToll systems recording the movement of my car, identification of suspects using the DNA information of others in private databases, security cameras and facial recognition.
Privacy protection has become a much more complex subject. The relationship with the State is important but equally important is the relationship between persons. It should be protected by privacy legislation, and a privacy regulator.
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It seems the real issue here is one of “consent”. I suspect few who bought a Google Assistant realized that it not only listened to them to do their bidding - it allowed unknown people to do so also. Terms of use are intentionally lengthy and incomprehensible to any but the Legal Department. These are simple fixes: if you had to respond Yes, I give permission for strangers to listen in on my conversations and follow me around and spy on me, I wonder how many of these technologies would be so invasive? If someone can be prosecuted for hiding a camera in a public bathroom, why not tech companies for doing essentially the same thing?
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If my iPhone is in airplane mode, does that prevent its location from being tracked?
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@Upper West Sider Yes. You can also turn off tracking for apps unless they're bring used (i.e. maps)
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There is a difference between a privacy right given by the laws of a community, and a privacy right one assumes for him/herself based upon his/her beliefs.
There may be an effective privacy right under the laws of one community, while in another community, a similar privacy right may exist solely for the sake of appearance.
The truth is, any community can change any privacy right at any time. The community decides when and how according to any standard it chooses to follow.
Regardless, a sense of privacy exists in all communities. This is a basic human feature of the social contract between individuals and communities. Yet, in practice, a population may learn its sense of propriety regarding matters of individual privacy are different than reality.
A sense of privacy is a perception. Like others, it varies with the uniqueness of individuals. As rights between individuals and their communities increase in stability and balance, so do the bonds of the social contracts, the strength of the communities, and the faith individuals have in them.
In the United States, privacy rights are vested in private sector participants based upon economic size and power. Lobbyists and lawyers know it and will fight to keep the status quo. Lesser people know this too.
When communities can no longer provide the best means to preserve the common good except by force, they fear people for one simple reason. People have something communities cannot give, unalienable rights.
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While many bewail the current state of affairs there is often little thought put into the relatively minor changes of legislation that could entail a complete overhaul to treat system.
Data is an asset in this day and age and should be afforded the same protections that are due physical (or indeed virtual but financial) assets. In the realm of physical and financial assets we have a much cleaner definition of ownership and beneficial ownership. If every third party internet provider had a sense of digital trusteeship, where we are the beneficial owner, then trust law would prevent illegal search and seizure without the due process of issuing warrants.
Given this setup, why not have Google be awarded a license to use our data or some portion of it in return for their trustee fees. If you don’t like that setup, pay a digital trustee (ie a secure email service) like ProtonMail, which encrypts all communication and I believe cannot even access the metadata.
Digital assets should not be treated so differently from physical. It should not be the extreme that Apple applies, where even an FBI warrant would not make them budge about releasing data of suspected terrorists. (But perhaps they really could not hack the San Bernardino terrorists’ iPhones themselves no matter what, due to their own security features) It should also not be the other extreme that warrantless monitoring is the norm.
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The problem with this piece is neatly encapsulated in the tilte to author's own book “You’ll See This Message When It Is Too Late:"
Privacy is over folks. The privacy ship has sailed and it is never coming back. It is only an irrelevant nostalgia to those under 30.
Download an app that shows how much you are being tracked on the internet and be prepared to be surprised. You are tracked by dozens of companies on every page you visit. Dozens on each page, thousands a day; all tracking you. We are tracked, packaged and sold with every keystroke in the internet. The information can be bought by anyone with a credit card.
Then go outside, take a walk around town and feel the joy of being on video cameras where ever you go.
And of course all phone traffic is filtered for "keywords" which are there for our protection.
There is always the sanctity of the home, at least until you get a Google assistant or Siri that transmits your every utterance to be packaged and sold.
So what are we actually talking about when we use the word "privacy". To quote Tina Turner, "It's a quaint, old fashioned notion."
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The assumption here is that the more privacy we have the better. But all the Fourth Amendment cases discussed here are criminal cases where the evidence sought could serve a great purpose — finding a serial killer or determining how a mass killer got his AR-15.
Privacy rights are frequently in conflict with criminal justice. And so the protection of privacy must be weighed by means of a balancing test. Anyone who says that the more privacy the better off we are doesn’t understand the Fourth Amendment.
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"Does that mean we lose our Fourth Amendment protections for the information we no longer expect to be secret?" Yes, it can, unless we act. Our Constitution is a framework, and the application to specific facts can change as society changes. (For example, I hope to live to see the day when the death penalty will be considered cruel and unusual.) We should demand our right to reasonable privacy online, and it is up to our Congress to enforce regulation on social media platforms that require users to actively consent to the collection of our data, not default to the assumption that Americans think that collecting all our personal data is fair game in unregulated capitalism.
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This is a very real issue for owners-pilots of all aircraft operating in the U.S. who are required by FAA regulation, as of January 1, 2020, to equip their aircraft with avionics that transmit their GPS location to FAA-monitored ground stations. There is no longer any location privacy for most aircraft operating in U.S. airspace. Imagine the public reaction if every automobile were equipped with a government-monitored GPS tracker.
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An article examining “executive privilege” would be very interesting. We hear regularly that the US Constitution never mentions privacy — but the comment is always framed in perspective of individual (citizen/resident/visitor) privacy. “Executive privilege” is a notion similar to individual privacy, but where in the foundational documents for our government(s) is this notion of executive privilege / government privacy mentioned or derived? Is it just something the Administration or the Congress or the Supreme Court fancied for themselves so they can do their deeds and misdeeds in secret? Or is it a real privilege granted by the US Constitution?
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Privacy isn't a right. It's a social contract. We share aspects of our personal information every day so a community can exist. Neither is privacy the same as secrecy. The idea that we can live out lives in secret is a yearning for a golden past, that never existed.
That said, our real privacy - the information in our lives that we can reasonably expect to control - is under threat from technology. There's little the law can do about that. Tech is the Road runner, and the law is Wile-E-Coyote, reaching out for increasingly arcane remedies from Acme Solutions, when the true is, it's never going to catch that critter.
To mix a metaphor, that genie isn't going back in the bottle. It's up to us to be careful. If you don't want your personal information in the public domain, stop putting it there. Stop visiting Facebook. If you must visit Facebook, then learn to use a proxy server. These are essential life skills for the information age.
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Most Americans didn’t know they were volunteering their data until recently. An expectation takes time to develop. Hopefully the courts will wait before judging.
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The problem is that even if laws protect our privacy, and with a maximum of safeguards, once your information is electronically recorded anywhere else it is no longer safe from being criminally accessed, especially if it is connected to an external network.
Even governments have difficulty keeping their secrets.
Perhaps banks, so far, have been at the forefront of tech security, having the most to lose.
The only, but unrealistic solution for many given that the horse has already left the barn, is to provide as little information as possible. It would mean not shopping online; not carrying your smartphone around with location tracking or not at all - mobile phones can still be had without being ‘smart’. Getting your news the old-fashioned way - TV with antenna, print as long as it exists. Buying with cash. Letters instead of emails.
But it’s not always possible. Many government processes now require internet access. Your workplace probably expects it as well. God forbid we ever go cashless.
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@ml
In Sweden many shops and services are already cashless. Their euphemism is “cash free”—as if their customers should rejoice at the freedom of not having to stick their own hand into their pocket when they pay for something.
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Americans would sell anything to make money. It is in their culture.
That it'd be data or fertilizers or pesticides or war weapons it is the same process.
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I am forced to accept the school district's requirement to collect and share my children's data, in order to enroll them in Kindergarten. In this forced consent, I lose my expectation of the privacy of their data, as there are over 400 vendors in the district that have access to student data. The district can't even tell me what data has been shared with each vendor. This is an expectation of a lack of privacy that you can't fight and really needs to be reined in. I have asked what can they do if I don't want to share my children's data with 3rd party vendors and they said "we may not be able to educate your child".
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@Anna Segur
Re: "we may not be able to educate your child"
Sounds like a threat to me. See a lawyer.
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What kind of vendors do they share with?
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@Nicole- One of the biggest and most concerning is Google, which is an "on demand vendor" through click through agreement, not a contracted vendor thereby allowing Google to avoid complying with state and federal data privacy laws. Vendors include ed-tech software companies, volunteer organization software, filtering software, etc. There are contracted vendors see here: https://docs.google.com/spreadsheets/d/1iP0fkXpAR5oBluEiByQvOLfVrDRuhbuzvy1T5rjtQng/edit#gid=0
And "on demand" vendors such as Google see here: https://docs.google.com/spreadsheets/d/1sDjUhrSHwPhQigjd96krqYdxwnNk4KWU4F4YL2XqtaE/edit?usp=sharing
“The United States does not have a fundamental right to privacy in its Constitution.”
Sure it does. The fourth amendment is much more clear on a right to privacy than the second has on a right to keep and bear arms:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”.
That’s a right to privacy.
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@Mike
The point is that the term "right to privacy" as such does not appear anywhere in the Constitution nor in any amendment. Are digital data like"papers" you keep in your house in the digital age? Clearly not. What Dr. Wolff says in this article isn't shocking or new. It's in fact a well-established fact in international discussions about privacy that the right to privacy as such is not mentioned in the US Constitution or its amendments, in stark contrast to the constitutions of other countries...
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Executive Protection of seizure of “paper” has not been interpreted to exclude any protection for unlawful search of the writing on the paper. While privacy has not been explicitly mentioned, this broader interpretation of paper to include all written material (so far, in physical form) gives far more liberty to extend it to all written or even documented media.
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Are digital data like papers and effects? Clearly yes. I don't no where you get that they are not.
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The fourth amendment puts restrictions on government behavior, not private behavior. Facebook provides "free" use their app in return for private information. If you do not like the "price," then do not use their product. But governments are a different matter altogether as migration is a very costly move if they invade your privacy.
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@WD40
I’ve heard this argument before and understand the basis.
However, nothing in the Fourth Amendment specifies this as government only. Read it again in light of today’s privacy concerns and you my feel differently. I believe a better court interpretation of the amendment as written supports privacy protections.
I don’t know if constitutional lawyers agree but from my lay-person perspective I see no reason it could not be successfully challenged in court.
Amendment IV
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.
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@wd40
My family and friend think I'm a technophobe because I won't carry a smart phone or use social media.
I'm willing to give up those connections because I do not accept "the price" of admission; i.e., giving up my privacy to corporate America even more than I already have by owning a home, using the internet, watching cable TV, etc.
For example, I recently did some on-line research on used cars for less than an hour. For a week or two after that, I started getting ads on my television and in my email by companies selling used cars.
This is truly the brave new world.
No information about a person, no matter how trivial, should be bought or sold.
It should only be free, and given with consent. ie: surveys, etc.
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Here is the solution to the online privacy problem:
With the exception of government records, all other entities purporting to possess personally identifiable information (including any information which can be reasonable expected to be de-anonymized) must give the actual person in question complete access to and right of revision of any such profile information. No entity should legally be permitted to represent your identity without your full consent and constant right of revision. Any other activity should be considered identity theft and punishable civilly and criminally with both individual right of action and class action, all contractual clauses not-with-standing.
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@Paul Central CA, age 59
What about media records? Say you were arrested, tried and convicted of a crime, which was reported in the NYT. Are you suggesting that the Times should not be allowed to retain that information (your name, charge, conviction, etc.) and that you be allowed to demand it be deleted and rendered unsearchable? That seems to be the gist of the EY "right to be forgotten", but is that really something we want in America? The extent to which such a purported right would prevent historical research, holding candidates less accountable, etc., seems to carry a high price for society in general.
@George S, protections for healthcare and financial personal data already exist when a prior generation found that companies abused their ownership of such data. Fail to see why other categories shouldn't be examined today.
Getting used to losing our privacy when in possession of the very instruments that keep us updated to the world's happenings is in progress; unless we develop an effective way to protect ourselves from constant surveillance, it may become the new 'normal'. China is becoming much more sophisticated in spying it's own citizens than we are; and I understand that some of them are paying dearly for exercising their rights to challenge such an institutionalized violence. Of course, they are not an autocracy, not a democracy. But these Trumpian times are trying to mimic them, to our loss.
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A classic example of a technology that has exceeded the Constitution's limits, requiring an interpenetration the that writers would have no concept of it, or what to do about it.
Just imagine someone in 1789 considering people talking to each world wide, and those conversations being recorded and archived. It would be their idea of science fiction.
How to write protections from something you could not even imagine. They tried, but 18th century protections are not sufficient. Congress can write laws to prevent such, but actually a new constitutional amendment is needed, a firm fixed protection. laws can be changed, but the Constitution is the basic law of the land, not so easy to avoid.
There could be provisions allowing access to the information, but it would have to be very difficult to get, and controlled. Again who or what would be the control, and how to control that?
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@David Underwood
Each person should be in control of his or her own personal information. Access should be allowed for law enforcement, subject to a search warrant, and each person should be entitled to be informed of any unauthorized access or use.
Part of the problem here is the explosion of advertising caused by the monetization of the internet and tracking of our location, television viewing, purchases, etc., by companies such as Amazon, Facebook, our internet providers, and countless others. Many now make more money from advertising and selling or sharing our personal information than actually providing service or products.
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It is high time we figured out how to put limits on data collection and data use, that apply to corporations and the private sector. This reliance on a vague privacy protection in the constitution is not enough.
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@beeceenj
If only because the Bill of Rights is good against the government but not against corporations. (Even though nowadays big corporations are the government.)
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