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What's the default on 4th amendment questions?


We're always coming up with new technologies that affect privacy and surveillance. We've seen court cases over infrared heat detectors seeing people move inside a house. We've seen parabolic microphones and lasers that can measure the vibration of the windows from the sound in a room. We've seen massive computers that can scan a billion emails in a short time, and estimates of speech recognition tools that can listen to millions of phone calls.

Today we're seeing massive amounts of outsourced computing. People are doing their web searching, E-mails and more using the servers of third party companies, like Google, Yahoo and Microsoft.

Each new technology makes us wonder how it can or should be used. The courts have set a standard of a "resonable expectation of privacy" to decide if the 4th amendment applies. You don't have it walking down the street. You do have it in your house. You don't have it on records you hand over to 3rd parties to keep, or generate with those 3rd parties in the first place.

But I fear that as the pace of change accelerates, we've picked the wrong default. Right now, the spooks and police feel their job is to see how close to the 4th amendment and statutory lines they can slice. Each new technology is seen as an opportunity for more surveillance ability, in many cases a way to get information that could not be gotten before either due to scalability, or the rules. Right now, when technology changes the rules, most of the time the result is to lessen privacy. Only very rarely, and with deliberate effort (ie. the default encryption in Skype) are we getting the more desireable converse. Indeed, when it looks like we might get more privacy, various forces try to fight it, with things like the encryption export controls, and the clipper chip, and manadatory records retention rules in Europe.

I think we need a different default. I think we need to start saying, "When a new technology changes the privacy equation, let's start by assuming it should make things more protected, until we've had a chance to sit down and look at it."

Today, the new tech comes along, privacy gets invaded, and then society finally looks at the technology and decides to write the rules to set the privacy balance. Sometimes that comes from legislatures (for example the ECPA) and more often from courts. These new rules will say to the spooks and LEOs, "Hold on a minute, don't go hog wild with this technology."

We must reverse this. Let the new technologies come, and let them not be a way to peform new surveillance. Instead, let the watchers come to the people, or the courts and say, "Wow, we could really do our jobs a lot better if we could only look through walls, or scan all the e-mails, or data mine the web searches." Then let the legislatures and the courts answer that request.

Sometimes they will say, "But our new spy-tech is classified. We can't ask for permission to use it in public." My reaction is that this is tough luck, but at the very least there should be a review process in the classified world to follow the same principles. Perhaps you can't tell the public your satellites can watch them in their backyards, but you should not be able to do so until at least a secret court or legislative committee, charged with protecting the rights of the public, says you can do so.

If we don't set such a rule, then forever we will be spied upon by technologies society has not yet comes to grips with -- because the spooks of course already have.


fool's picture

though you recently mentioned google's less-evilness (and i concur), my biggest concern is not the government (of whom i am already very wary, especially as a state employee) but corporations who have financial incentive to be abusing technology to curtail our privacy, and lately in america seem to have the government eating out of their hand. i worry not that i'll be incarcerated for being subversive, but that i'll be cut off from society by commercial interests whose cheerios i piss in in various ways: vocal boycotts of privacy violators (such as companies that sell my uniquely-generated-for-them email addresses, like network solutions), encouraging the anti-walmart sentiment in meatspace, and promoting bike riding instead of detroitmobiles. while i'd like to think i'll always be able to get by shopping local and via the support of a network of like-minded individuals, when the world is finally foreclosed upon by coca cola, microsoft, and exxon, (or maybe China, Inc.) that just may not be possible.

i think i'm probably growing up to become one of those creepy old conspiracy theorists who wears a tinfoil hat, but at least once i remove my filling and RFID tag, they won't be able to track me anymore and i can go live in a cave. fortunately that's always been my dream...

Glad to see you oppose Google's cowardice in China. Or did you. No, you only opposed your own Government as you were directed to by the Democrats.

If you were basing your opposition on principle, you would recognize what's happening globally. Too bad you're only interested in trying to score a few political points. Shame on you. SHAME ON YOU.

I certainly do oppose the Google decision on China, and have told them so. What make you think otherwise?

But yes, I do care even more about what the U.S. government does with my tax money and in the name of the U.S. people, living there as I currently do.

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