Reasonable expectation of privacy in a world where Big Brother is WWWatching?

Whether it's revealed through a hack, leak or investigative reporting, a week rarely passes without hearing something unpleasant in regards to surveillance vs Fourth Amendment protections. Juice Rap News 15 has a new video, showing both sides, those who are for and against surveillance. It’s called Big Brother is WWWatching You.

This video had me pondering civil liberties clashing with technology; it led to deep thoughts about what is a “reasonable expectation of privacy” in this world of surveillance?

In 1996, John Perry Barlow, co-founder of the EFF and former lyricist for the Grateful Dead, wrote “A Declaration of the Independence of Cyberspace” which talked about “Cyberspace, the new home of Mind.” It talked about governments trying to control “the virus of liberty,” but “We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.” Many of the same sentiments for a free, open and uncensored Internet are echoed in the Declaration of Internet Freedom. Regarding netizens’ privacy, the Declaration states, “Protect privacy and defend everyone’s ability to control how their data and devices are used.”


When you consider there's about 400 million daily tweets and 900 million daily Facebook updates, the lists of social media “hot” keywords monitored by government agencies, such as Homeland Security, do not necessarily result in “actionable intelligence.” This is certainly not a new surveillance problem, since NSA whistleblower Thomas Drake previously told 60 Minutes that the super-secret spook agency is “choking on” the explosion of digital data. California Watch, part of the Center for Investigative Reporting, took a look at the problem and web surveillance tools being pitched to the police by private tech companies.

Although the surveillance software is supposed to hone the thunderous white noise in social media down to manageable spying bytes, privacy advocates are concerned that these tools will cause innocent citizens to wind up as targets, or worse by being reported as potential terrorists. G.W. Schulz of California Watch wrote, “Some law enforcement agencies have become eager for the prestige of having their own intelligence arm with no clear target in mind, raising sticky questions about who or what they want to spy on en masse and why.”

3i-MIND is a private firm which offers solutions for fusion centers and for analyzing the Internet for Open Source Intelligence (OSINT). OpenMIND is another product Schulz highlighted as being “developed specifically for intelligence and law enforcement agencies, which ‘automatically finds suspicious patterns and behaviors’ across the Internet. It digs not just within social media, but also through blogs, online forums and the ‘deep Web,’ where many chat rooms exist.”

SAS Institute Inc. said [PDF] that since nobody conveniently tags #crime, the company teaches cops how to “harness the information contained in social media” such as by learning how to “scrape and analyze massive volumes of data from the backsides of Facebook and Twitter.” This allows the police to “follow” and “visualize” a suspect, and all the updates of the targets’ social media connections, via a single format. Yet other cops choose to create fake social media profiles and personas “that the target and their contacts might ‘consider attractive’,” with the goal of being “friended” by the person of interest and their friends.

Ginger McCall, open government program director for the Electronic Privacy Information Center (EPIC) told Schulz, “I follow lots of people on Twitter that I don’t agree with at all. I follow a lot of accounts of people who are potentially breaking various U.S. laws. Does that association necessarily mean that I am?”

Supreme Court Justice Sonia Sotomayor wrote in United States v. Jones:

People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.

Has the reasonable expectation of privacy been so tweaked and mangled that it’s lost? For example, the ACLU has asked the Sixth Circuit Court of Appeals to reconsider the cell phone tracking decision, an awful ruling that there is no expectation of privacy in cell phone GPS data. Otherwise the Skinner ruling that made sure criminals get no location privacy, also “undermined the privacy rights of everyone who carries a cell phone.” Attorney Mark D. Rasch, the former head of the U.S. Justice Department’s computer crime unit, said the Skinner ruling “did eliminate the Constitutional restriction on collecting and using this information, in addition to flat out stating that location information is not private, irrespective of how it is collected.”

Rasch wrote:

I can envision a network of traffic cameras (installed by either the government, enterprising retailers or even just Twitter followers) which would capture license plate numbers, link them to consumers and, viola! We have real-time location data that is sharable, indexable, mineable. Skinner took care of privacy objections from a Constitutional perspective. Other technologies, such as facial recognition and tracking, could be deployed without Constitutional objection under the Skinner rationale. It’s a whole new world. I am just not sure I want to live in it.

In the ongoing struggle over the future of the internet, surveillance of phones and all tech things, for people who like their privacy, Rasch's creepy scenario sounds a bit like a reasonable expectation of hell. 

Copyright © 2012 IDG Communications, Inc.

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