“Who Watches The Watchers?”: The Government Wouldn’t Be Able To Accumulate Data On Citizens If Companies Weren’t Collecting It
Yesterday, President Obama for the first time publicly addressed the controversies surrounding the National Security Agency’s Internet snooping, noting that there’s an important discussion to be had about the balance between security and liberty in a free country. “I welcome this debate,” he said.
I wonder, though, whether this debate is too narrowly drawn: Is the nub of the problem too much government surveillance or too much surveillance, period? After all, the government wouldn’t be able to so easily accumulate all this data on private citizens if private companies weren’t collecting it first.
In case you live under a rock, the kerfuffle involves a pair of National Security Agency programs. In one the agency spent years collecting the nation’s phone records – who called whom when and from where. In the other, codenamed PRISM, it has reportedly mined data – emails, chats and photographs, for example – of ostensibly foreign targets from prominent Internet providers like Microsoft, Yahoo, Google, Facebook, AOL and Apple, to name a few. (For their part, these companies have issued various types of denials regarding their cooperation in the program.)
But as I said, the government surveillance, which is deeply unsettling, raises a larger question about corporate surveillance. Amie Stepanovich of the Electronic Privacy Information Center points out that none of the information in question would be sharable if Internet and telecommunications companies encrypted it to protect privacy. In other words, it’s not a given that corporations must collect vast amounts of information from and about us. But failing to do so wouldn’t be good for business.
Somebody’s watching you. As security technologist Bruce Schneier has written, “The Internet is a surveillance state.” The mere act of visiting websites means you’re being tracked whether you’re aware of it or not. “Click tracking is a huge source of personal data that most people aren’t aware is being collected,” says Stephen Wicker, a Cornell University professor and author of the forthcoming “Cellular Convergence and the Death of Privacy.” He adds that “sites that you would think are relatively benign are actually hosting third party click trackers that take this data and then resell it.”
Indeed, earlier this year The Atlantic’s Alexis Madrigal dug into the world of Internet tracking and discovered 105 companies that had tracked him in a 36-hour period of normal Web surfing. “Every move you make on the Internet is worth some tiny amount to someone, and a panoply of companies want to make sure that no step along your Internet journey goes unmonetized,” he wrote. (Full – or at least partial – disclosure: I do not know whether and to what extent usnews.com employs click trackers.)
Or consider the big data kid on the block: Google. Many people probably view the company as a search engine, or a map provider, or a mobile phone company or a cloud repository for documents. What Google is, in fact, is a data collection company: It collects data on you 15 ways to Sunday, sorts it, chops it up and sells it. And as Robert Epstein pointed out on this site in May, it’s not just when you’re using the Google search engine or Gmail (though it is assuredly the case then).
The Internet behemoth is collecting information on you whether you know it or not and whether you’re using its products or not. Using Safari or Firefox? Both web browsers, Epstein wrote, use Google’s blacklist, “an ever-changing list of about 600,000 websites that Google’s bots have identified – sometimes mistakenly – as dangerous. No government agency or industry association ever gave Google the authority to maintain such a list, but it exists, and Firefox uses it.” So does Safari. If you’re visiting a website that uses Google analytics (and most major sites do) or is serviced by Google ads or has Google maps embedded in it then Google, as Epstein writes, has gotcha.
But Google’s the “Don’t be evil” company, right? (After all, they’ve just gotten Vince Vaughn and Owen Wilson to star in a two-hour movie-cum-commercial.) And don’t all major social media platforms have privacy policies to protect consumers? Maybe. But in the last few years Google, Facebook and MySpace (remember that site?) have reached settlements with the Federal Trade Commission for charges related to how they handled users’ personal and private data.
The spy in your pocket. And that doesn’t even get into the personal, portable surveillance tools practically everyone in the country voluntarily carries around with them: mobile phones and other wireless devices. Pew Research reported this week that for the first time a majority of Americans own a smart phone of some kind, while fully 91 percent of the adult population now owns some flavor of cell phone. (The wireless industry lobbying group CTIA reports that wireless devices have now reached 102 percent penetration in the U.S. and its territories, which means that the machines now outnumber the people.)
And if you’re using your mobile phone, you’re being tracked. “I don’t think people realize they’re revealing their location to their carrier just by using their device,” says Ashkan Soltani, an independent privacy researcher and consultant. A 2011 investigation by the Wall Street Journal (on which Soltani consulted) found that Apple and Android smart phones routinely send location information, including information about local Wi-Fi networks, back to Apple and Google. Separately, the Journal reported in 2011, Apple’s iPhone collected and stored location data even when users had turned off “location services” – which is to say when they thought they had opted out of being tracked.
Why? This information is a potential treasure trove for these companies. From the Journal:
Google and Apple are gathering location information as part of their race to build massive databases capable of pinpointing people’s locations via their cellphones. These databases could help them tap the $2.9 billion market for location-based services – expected to rise to $8.3 billion in 2014, according to research firm Gartner, Inc.
Google uses this information to help show on its maps where automobile traffic is especially heavy or light. Verizon sells aggregate location data to advertisers, according to Soltani, so they can know where to place billboards. The wireless companies’ viewpoint, according to Soltani, is “we got this information for free, let’s use it for this other use-case, which is the marketing data.”
And there are a lot of companies trying to get a piece of this financial pie. In another story, the Journal surveyed 101 popular iPhone and Android apps and found that “56 transmitted the phone’s unique device ID to other companies without users’ awareness or consent. Forty-seven apps transmitted the phone’s location in some way. Five sent age, gender and other personal details to outsiders.” As Soltani told a Senate subcommittee in 2011, “applications can access and transmit data which includes text messages, emails, phone numbers, contacts stored and even browser history stored on the device.”
So if you woke yourself up this morning with an alarm clock app on your phone, the instant it went off, says Soltani, not only did it transmit noise to your ears but location data back to people you don’t know. “There are times where there are 50 or 100 third parties – companies that you’ve never had a relationship with – who are able to monitor your … activities,” he says.
Not big on apps? Consider your next visit to the local mall. Carriers and other companies are installing sensors around shopping malls, Soltani says, allowing them to track where people are lingering, what’s popular and what’s not, analytics that then go to the mall.
Perverse incentive. All of this creates what Soltani calls a “perverse incentive that creates this worst case scenario for consumers.” Companies have an incentive to collect and keep user data; and that trove proves an irresistible target for the government in its ongoing war on terrorists.
Which brings us back to the current uproar over the NSA’s data collection and data mining. The outrage is justified, as is the broader concern about how the cult of secrecy has infected and distorted the government. But there is something somewhat comforting to the notion that government agencies are ultimately responsible to the voters, even if that process has become calcified and overly complex.
But the surveillance state is built upon its corporate counterpart. And who watches those watchers?
By: Robert Schlesinger, U. S. News and World Report, June 8, 2013
“Paranoid Concerns”: Making A Mountain Out Of A Digital Molehill
The revelations this week that the federal government has been scooping up records of telephone calls inside the United States for seven years, and secretly collecting information from Internet companies on foreigners overseas for nearly six years, have elicited predictable outrage from liberals and civil libertarians.
Is the United States no better than those governed by repressive dictators who have no regard for individual rights? Could President Obama credibly raise human rights issues with his Chinese counterpart, Xi Jinping, at a summit meeting on Friday, if America is running its own vast surveillance state? Has Mr. Obama, for all his talk of ending the “war on terror,” taken data mining to new levels unimagined by his predecessor, George W. Bush?
Hold it just a minute.
From what has been made public, we know that the F.B.I., under the Obama administration, used its powers under the Patriot Act to seek these records; that judges with the Foreign Intelligence Surveillance Court approved these searches; and that members of Congress with oversight powers over the intelligence community were briefed about the searches. Some of them, like Senators Mark Udall, Democrat of Colorado, and Ron Wyden, Democrat of Oregon, were uncomfortable with the scope of the data gathering and made their disapproval public, even though secrecy rules prohibited them from being more specific about their concerns, until now.
It is evident, then, that all three branches of government were involved in the records search afoot at the telecommunications carriers and Internet companies. Section 215 of the Patriot Act, which Congress passed after 9/11, governed the executive branch’s search authority. Oversight committees were kept in the loop, as Senator Dianne Feinstein, the California Democrat who leads the Senate Intelligence Committee, has confirmed. And the authorizations were approved by life-tenured federal judges who are sworn to uphold the Constitution, including the Fourth Amendment, which prohibits unreasonable searches and seizures. On the surface, our system of checks and balances seems to be working.
We cannot rule out the possibility that the voluminous records obtained by the government might, some day, be illegally misused. But there is no evidence so far that that has occurred.
First, no contents of phone conversations are being provided to the government. Indeed, the Patriot Act precludes provision of call contents.
Second, the two senators who complained in public, Mr. Wyden and Mr. Udall, apparently were in a minority on the committee. Otherwise, the bipartisan committee could have held hearings, either in closed or open session, to seek further details and prepare legislation to limit the F.B.I.’s data-gathering powers.
Third, unlike you and me, federal judges on the surveillance court, established in 1978, reviewed the government’s request for information and the reasons provided to support the request. We do know that the search requests have required periodic renewal. And we know that, for reasons the judges thought sufficient, the contents of the order were sealed, with special mention that it was not to be available to foreign entities. Judge Roger Vinson, who signed the July order extending the requirement that Verizon furnish phone logs, struck a balance: he put a time limit on the data-gathering, to ensure executive accountability, but also issued a secrecy order, to protect national security.
But shouldn’t I be concerned that F.B.I. agents are trampling my rights, just like the I.R.S. might have trampled the rights of certain organizations seeking tax-exempt status? As it turns out, the answer is no. The raw “metadata” requested will not be directly seen by any F.B.I. agent.
Rather, a computer will sort through the millions of calls and isolate a very small number for further scrutiny. Perhaps one of the numbers was called by one of the Tsarnaev brothers before the Boston Marathon bombings. Or perhaps a call was placed by a Verizon customer to a known operative of Al Qaeda. The Supreme Court long ago authorized law enforcement agencies to obtain call logs — albeit on paper rather than from a computer database — without full probable cause to believe a crime had been committed.
To listen to the contents of any particular call or to place a wiretap on a particular phone, the F.B.I. would have to go back to a judge for a more detailed order, this time showing probable cause sufficient to meet stringent Fourth Amendment standards. Otherwise, the evidence from the call could not be used to prosecute the caller or call recipient. Privacy rights, in short, have been minimally intruded upon for national security protections.
Finally, let’s consider the alternative some activist groups and media organizations seek: more narrowly tailored gathering of records, and full transparency after the fact about what kinds of records have been obtained. There are obvious problems with this approach. Let’s say the judicial order leaked to The Guardian this week had specified the phone numbers about which the F.B.I. had concerns. Releasing those numbers would surely have tipped off the people using those numbers, or their associates, and caused them to change their mode of communicating. Already, there is a real probability that individuals planning terrorist activities are using channels of communication that will not show up in the databases of service providers. If the order revealed more expansively the standards the F.B.I. used to seek broad sets of records, again those seeking to avoid detection for terrorism-related activities could simply change their methods of doing business.
In short, I think I will take my chances and trust the three branches of government involved in the Verizon request to look out for my interest. Privacy advocates, civil libertarians, small-government activists and liberal media organizations are, of course, are welcome to continue working to keep them honest. But I will move back to my daily activities, free from paranoid concerns that my government is spying on me.
By: Charles Shanor, Op-Ed Contributor, The New York Times, June 7, 2013
“Suspicionless Search And Seizure”: The Supreme Court Rules That DNA Is Like A Fingerprint Or Mugshot
In a 5-4 decision, the U.S. Supreme Court has ruled that police have the right to gather DNA evidence without a search warrant after an arrest and before the arrestee has been convicted of a crime. The majority ruled that a cheek swab is no different from taking a fingerprint or a photograph.
Already 26 states collect DNA samples from suspects, a fact that had gone mostly unnoticed until 26-year-old Alonzo King was arrested in Maryland for second-degree assault in 2009. Maryland authorities took a DNA swab from King while he was in custody, and after running it through the state’s and the FBI’s databases, they found that it matched DNA from an unsolved rape committed in 2003.
The U.S. Supreme Court’s decision on Monday reversed a 2012 Court of Appeals decision in which Maryland’s highest court ruled in King’s favor, stating that the DNA swab was used for investigative purposes after his arrest—this was in direct violation of his Fourth Amendment rights, as he had not been convicted of any crime and was still presumed innocent.
Groups including DNA Saves have been advocating for the DNA swabbing of arrestees as a means to close unsolved cases, citing statistics that most crimes are committed by repeat offenders.
Justice Anthony Kennedy was among the five Justices who voted to reverse Maryland’s decision. “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” Kennedy wrote. “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined Justice Antonin Scalia in his written opposition to the court’s decision. His dissent began, “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”
Scalia’s defense of the Fourth Amendment continued in his scathing dissent: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.”
The dissenting Justices warned of likening DNA sampling to fingerprinting and taking photographs. They aimed to differentiate between methods of identifying and investigating an individual after their arrest and before a trial.
New technologies are increasingly presenting privacy challenges that complicate the typical conservative/liberal alliances on the Court.
USA Today reports, “Last year, they held that police could not attach a GPS tracking device to a car in order to monitor a suspect’s movements. This year, they ruled that using a drug-sniffing dog with reasonable suspicion was OK — but not at the door of a private home. And they decided that executing a search warrant after a suspect had left his home was out of bounds.”
Of course the major difference between last year’s decisions and the one the Supreme Court reached today is that DNA swabs may be used by authorities to implicate an arrestee in crimes for which they have no warrant or reasonable suspicion. In this way, the majority found, a DNA swab is similar to the procedural tasks of taking a fingerprint or a mugshot.
The minority warned of the broader implications of the decision.
“Make no mistake about it: Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote in his dissent. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.”
By: Allison Brito, June 3, 2013
“Unreasonable Search And Seizure”: Supreme Court Undercuts 4th Amendment Protections-Again
In yet another 5-4 decision of the Supreme Court, the conservatives sitting on the Roberts Court have cut deeply into our protection from unreasonable search and seizure guaranteed to Americans by the 4th Amendment to the Constitution.
As a result of today’s ruling, jailers can now perform bodily strip searches on anyone brought in to a holding cell, no matter how minor the alleged infraction. And when I say ‘minor’, I’m not talking about people arrested and held for violent or even misdemeanor drug related crimes.
I’m talking about individuals arrested for riding a bicycle without an audible bell, driving a car with a noisy muffler or failing to properly use a signal when making a left or right turn.
Seriously.
These are but a few of the offenses that were committed by people who found themselves being strip-searched and subject to the long arm of the law when that long arm intruded into personal spaces where no arm was intended to go. These were also the offenses represented in a class action brought against two New Jersey jails by Albert Florence, a New Jersey resident who was also subjected to the humiliation of a strip search—twice— for what the police believed was an outstanding warrant for failing to pay a court fine.
Florence’s ordeal began on a day in 2005 while he and his family were on his way to his mother-in-law’s home to celebrate the purchase of a new residence for the Florence family. Mrs. Florence was at the wheel of the family BMW when she was pulled over for speeding. When the police officer ran a check on Mr. Florence as the owner of the car (despite the fact that he wasn’t driving), they discovered that he had an outstanding warrant for failing to pay a fine to the Court.
Never mind that Mr. Florence, a financial executive with an automobile dealership, had, in fact, paid the fine and actually had proof of having done so in the glove box of his automobile because he feared that local police were suspicious of black men who drive nice cars. And never mind that even if the warrant had been an outstanding bench order, not paying a court fine in New Jersey is not a crime.
Florence was arrested and handcuffed as his pregnant wife and young son watched in distress.
When Mr. Florence arrived at the local jail where he was to be held pending a hearing on the warrant, he was subjected to a strip-search. And when he was transferred to a different county jail he was treated to a search of his body once again, despite the fact that, at no time since his first strip-search, was he outside the custody of the police.
During his first strip-search, Florence was forced to disrobe in front of an officer and told to lift his genitals. Upon arriving at the second jail, he was made to squat and cough in front of a number of viewers for the purpose of expelling anything that might be hidden in a body cavity.
Setting aside my curiosity as to what the cops expected to find hiding beneath his genitals, I will simply report that the local Magistrate finally ordered Mr. Florence released when he determined that Florence had, indeed, paid the fine some years before.
Still, the Supreme Court came to the conclusion that the body searches Mr. Florence was subjected to—not once but twice and despite the fact that he had been in police custody the entire time between the first and second search—were “reasonable” within the meaning of what constitutes a reasonable search and seizure for 4th Amendment purposes.
So deeply concerned was the five Justice majority for the need to keep contraband—including weapons and drugs—out of the jail system, they were prepared to relieve authorities throughout the nation of their responsibility to afford American citizens their privacy rights—even when they are hauled in for having a broken bell on a bicycle.
Writing the minority opinion, Justice Stephen Breyer argued that this behavior is not constitutionally appropriate for an individual arrested for a minor offense that does not involve drugs or violence.
“A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy,” Breyer wrote. The “invasion of personal rights” at issue in this case, the dissenters argued, “is very serious and lacks need or justification — at least as to the category of minor offenses at issue.
The Court’s decision greatly expands upon what authorities can do when searching those they detain for alleged crimes, no matter how miniscule the charge may be.
In 1979, the Supreme Court upheld the policy of body cavity searches for prisoners after they had met with visitors. The theory was that the possibility of a guest from the outside having slipped an item of contraband to a prisoner posed a significant threat to the remainder of the prison population and jail officials. For that reason, the search was deemed reasonable.
However, since that decision, the principle has been widely limited so as not to to be applied to newly arriving prisoners where there was no reason for authorities to suspect that the incoming prisoner might have some item of contraband on his or her person requiring confiscation. In other words, the ‘reasonable’ standard was applied.
That limitation is no longer the law of the land.
In what is becoming a habit of some members of the conservative side of the Court who don’t appear to want to be held responsible for the bad precedents they set, Justices Roberts and Alito when out of their way to say that this practice should be limited to the case at hand and that it should not be assumed that this principle is to be applied to all searches—particularly when someone is only to be held for a short time and placed in a cell separated from the general population.
The hope is that this limiting opinion will be applied at jails throughout the country so that people held only until bond is posted will not be subjected to intrusive and humiliating strip -searches.
Just last year, the Roberts Court put another serious dent into the 4th Amendment prohibition against unreasonable search and seizure when it upheld the constitutionality of police in Kentucky entering a suspect’s home without a search warrant.
By: Rick Ungar, Contributor, The Policy Page, Forbes, April 2, 2012
“Indifference To Human Dignity”: Finally, Rupert Murdoch Gets His Due
So here’s the synopsis of my forthcoming exposé emulating Evelyn Waugh’s novel “Scoop.” I conceived it during an email exchange with a French friend who’s an expert on the British satirist.
The working title is “Scantily Clad.”
A tabloid newspaper hires buxom ladies to “have it off,” as the Brits say, with politicians, celebrities, members of the royal family and the Manchester United Football Club. Once done, the editors hire a hitman to kill them off, and a psychic to help Scotland Yard find the bodies — preferably naked in luxury hotel suites or stately country homes with riding stables and formal gardens.
Is there a serial killer among the aristocrats? Millions of yobbos (working-class folks) demand to know. Enter an intrepid French politician with a hyphenated name to expose the plot by exposing himself to a buxom hotel maid dispatched by the Daily Wank to seduce him…
OK, that’s enough. Even if I could write fiction, I couldn’t write British fiction. Besides, satire depends upon comic exaggeration, while the deepening scandal involving Rupert Murdoch’s News International corporation has far surpassed my puerile imaginings.
After all, prostitutes get bumped off every day in this fallen world. For a newspaper to exploit the families of kidnapped 13-year-old girls, the victims of terrorist attacks, and the families of soldiers killed in Iraq and Afghanistan, however, implies an indifference to human dignity that can only be described as depraved. All that and more was apparently done by Murdoch’s now-defunct News of the World.
News International shuttered the weekly tabloid in a transparent attempt to pretend that executives have been shocked by the transgressions of overzealous staffers.
Meanwhile, the Sun, Murdoch’s other London tabloid, obtained the medical records of then Prime Minister Gordon Brown’s 4-month-old son. Brown said that he and his wife were “in tears” on learning that their infant’s cystic fibrosis would decorate the newspaper’s front page.
Brown has accused another Murdoch newspaper, the allegedly respectable Sunday Times, of hiring “known criminals” to rummage through his bank accounts, legal records and tax returns.
“If I,” Brown has said, “with all the protection and all the defenses and all the security that a chancellor of the Exchequer or a prime minister, am so vulnerable to unscrupulous tactics, to unlawful tactics, methods that have been used in the way we have found, what about the ordinary citizen?”
So that’s lesson one. Privacy in the digital age no longer exists. The more fortunate or, in the case of victims of terrorism or tragedy, the more unfortunate you are, the more your intimate sins and sorrows will be merchandised as infotainment for the rabble.
Perhaps British audiences titillated to hear of Prince Charles’ wish to become a tampon shouldn’t be so horrified to see innocent crime victims treated as rudely as philandering aristocrats.
After all, Murdoch’s minions may have rationalized, what does it matter why somebody’s famous? Fame has no rights.
Even more than his fiercely competitive business practices, it’s Murdoch’s unsparingly cynical view of human nature that’s made him the most powerful media mogul in the world. Mass audiences respond to voyeurism: sex, violence, personal tragedy, and racial and political melodrama. And in Great Britain particularly, people yearn to see the mighty humiliated.
Nevertheless, the British are horrified. They’re outraged about journalists bribing cops, about interfering in murder investigations, about identity theft, and about hacking thousands of cellphones, even as News International executives assured Parliament that a handful of rogue employees were involved. (News flash: Newspaper staffers can’t authorize six-figure payoffs.)
Murdoch’s coziness with Tory and Labour politicians alike has become a problem for him and them. See, something else people love is the vicarious pleasure of watching a coverup come undone. News International big shots are face cards, too. Prominent careers will be ruined; powerful people are going to prison.
Meanwhile, notice how studiously everybody in the United States is concentrating on the purely British aspects of the scandal? Murdoch’s ruthless; he gets even. Besides, a person could end up working for him.
However, cracks have developed in the transatlantic wall. Already, a former New York cop has said News of the World offered him cash to hack the cells of the 9/11 dead. Les Hinton, the longtime aide that Murdoch placed in charge of the Wall Street Journal, is among those who gave now-inoperative testimony to Parliament in 2007. One bad apple, he said.
Even Roger Cohen, for my money the New York Times’ best columnist, defends Murdoch’s “visionary, risk-taking determination” even as he deplores the influence of his biggest moneymaker, Fox News. “[With] its shrill right-wing demagoguery masquerading as news,” he writes, “[Fox has] made a significant contribution to the polarization of American politics, the erosion of reasoned debate, the debunking of reason itself, and the ensuing Washington paralysis.”
Apart from having the moral imagination of a water moccasin, in other words, Rupert Murdoch’s just a terrific guy.
By: Gene Lyons, Columnist, Arkansas Democrat-Gazette, published in Salon, July 13, 2011
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