Children make excellent intelligence assets. They trust strangers, lack socially-constructed boundaries about what is and is not private, and can be easily manipulated via relatively unsophisticated social engineering. And Mattel may have just created the most perfect spy who ever worked an asset over for information: the humble Barbie doll.
There's an old joke that goes like this: “There are only 10 types of people in the world: those who understand binary and those who don't.” Like most old jokes, it's built around a kernel of truth. If you cram enough training in mathematics and science into a person's brain, it changes not just how they think, but how they see the world. It's hard to overstate just how deep this shift goes, but it's akin to the “overview effect” experienced by astronauts during spaceflight, in which suddenly seeing the planet from a different perspective induces a profound sense of oneness and connection. But for engineers and other types of data scientists, I suspect that the effect goes in the opposite direction. It seems like there's an inclination among some who work with large bodies of data, be they NSA cryptologists or Facebook researchers, to view their data as something separate from the individual citizens and consumers that those data points represent. And I believe that this disconnection goes a long way towards explaining the tensions in the modern big data world.
It turns out that searching through the digital contents of a person’s mobile phone is more intrusive than rifling through an address book, wallet, or purse. Correspondingly, police may no longer perform such a search without a warrant. Privacy advocates are hailing the Supreme Court’s decision last Wednesday in Riley v. California as a victory of common sense and rationality over blind adherence to doctrine. But just a few minutes before the Riley decision appeared online, the Court handed down its ruling in ABC v. Aereo, holding that the company’s use of tens of thousands of dime-sized micro-antennas to stream broadcast television over the internet was a form of copyright infringement. The Court’s decision in Aereo has so far seen a far cooler reception than its one in Riley, with some fearing that the majority’s reasoning could potentially chill innovation.
Let’s be honest: Riley and Aereo barely have anything to do with each other. One is a Fourth Amendment case, the other is about copyright infringement. And while there is some crossover in the tech policy world, there aren’t many public defenders who run a side business litigating civil intellectual property disputes, nor are there many IP attorneys who spend their days off arguing the exclusionary rule. The only reason these two cases have so often been cited in parallel is that they were handed down within minutes of each other, and they both relate to technology. That said, what these two cases do illustrate is just how much trouble the Supreme Court, and, by extension the entire legal system, has with new technologies. And what we need to ask is why, doctrinal technicalities aside, so many see Riley as coming out the “right” way while Aereo is viewed as a “bad” result.
The ongoing metadata/content debate finally seems to be winding down. In a blog post last week, Stanford researchers Jonathan Mayer and Patrick Mutchler published the latest results of their ongoing MetaPhone research project. Their primary findings provide empirical support for what computer scientists have been saying all along: cell phone metadata can tell us quite a lot about an individual without need to hear a single word of the content of his or her calls. But Mayer’s and Mutchler’s work also raises a number of secondary considerations which show just how complex the interactions between cell phones and privacy can actually be.
The latest chapter in the ongoing tale of NSA overreach may be the most troubling one yet. Reuters has revealed that NSA has been sharing information with a secret group within DEA to help them launch criminal investigations against American citizens, and apparently the IRS has been in on the game as well. Furthermore, law enforcement officers involved in these cases were instructed to conceal the use of these NSA information sources to both prosecutors and courts.
This week’s revelations expose an ongoing subversion of the tools of national defense for the purpose of domestic law enforcement. These actions strike closer to home than any of the previously-uncovered NSA programs. While the individual mechanics may not be as stunning as the headlines suggest, taken in the aggregate they highlight two specific points: 1) the technology we use to hunt terrorists is so flexible and powerful that other federal agencies are “clamoring” for it, regardless of whether it is the right tool for the job, and 2) by its nature, NSA technology allows for a greater bifurcation between investigation and prosecution than ever before.
One of the greatest challenges of living in the future is that it mostly looks just like the present. We have self-driving cars, commercial spaceflight, powerful computers in our pockets, and a vast, always-accessible online encyclopedia that contains the rough outline of the entirety of human knowledge. Just two decades ago, most of these would have been the stuff of science fiction, but, on a personal level, today feels much like yesterday, which feels much like last month, which feels much like last year.
""All of a sudden, a for-profit company has decided, 'We're going to step in and be the first line of defense for customers against their own government,' " said Brian Pascal, a fellow at Stanford University who has worked on privacy issues at Palantir Technologies Inc. and International Business Machines Corp."
"Brian Pascal, a research fellow at the University of California, Hastings, told Ars that he didn’t think that this new ruling would impact metadata gathered via stingrays. “The [Supreme] Court likes to move in small steps, and recognizing that people keep sensitive information on their cell phones is a trivially small step in 2014,” he said."
"“I think it reflects a growing recognition that we can't treat e-mail as a separate, less-protected form of communication, either as a matter of law or as a matter of practice,” Brian Pascal, a research fellow with the University of California, Hastings Law School, told Ars. “It's just how we talk these days.”"
"“At the outset of this study, we shared the same hypothesis as our computer science colleagues—we thought phone metadata could be very sensitive,” Jonathan Mayer, a graduate student leading the project, wrote on Wednesday."
Jennifer Granick, the director of civil liberties at the Stanford Center for Internet and Society where Mayer is affiliated, concluded that this study “adds important empirical evidence to support what is now a growing consensus. Metadata surveillance endangers privacy.”
Privacy and the Internet: Is the Law Adapting as Fast as We Are?
The Legal Implications of Technological Advancements
Friday, October 11, 2013
8:45 a.m. to 5:00 p.m.
Presented by Chapman University Fowler School of Law's Nexus Journal of Law and Policy
California MCLE credit (6 hours)
Featuring CIS Non-Residential Fellow Brian Pascal on the panel "Constitutional Issues with the Internet and Technology".