From the article: “The practice has become big business for cellphone companies, too, with a handful of carriers marketing a catalog of “surveillance fees” to police departments to determine a suspect’s location, trace phone calls and texts or provide other services. Some departments log dozens of traces a month for both emergencies and routine investigations.”
In United States v. Jones the U.S. Supreme Court unanimously ruled that attaching a Global Positioning System (GPS) device to a vehicle for the purpose of location-tracking constitutes a search under the Fourth Amendment. More notable than the unanimity of this decision, is that the majority opinion was premised on the fact that the federal government physically trespassed on Antoine Jones’ private property (his car) in order to install the GPS — leaving open the question of whether such surveillance would have been legal had the government not physically installed a tracking device. To this end, United States v. Jones raises more questions than it answers regarding the legality (and morality) of surveillance in everyday information environments. Governments, corporations, and individuals do not need to physically enter your house, your desk, or tap your phone line, to gain access to the multitude of personal information that flows through your everyday environment, and beyond.
In separate concurring opinions, Justice Alito and Justice Sotomayor both problematize the majority opinion’s focus on “physical intrusion,” yet only Sotomayor’s concurring opinion offers a consideration of the interests and concerns of U.S. citizens who currently exist in what is, at least to them, a largely mystified and little understood information environment. As Sotomayor argues in her concurring opinion:
Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.”
I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.
Sotomayor’s focus on “a reasonable societal expectation of privacy in the sum of one’s public movements” is important as it’s quite clear that society is not aware of the extent to which they’re being tracked, nor is there a social consensus on what constitutes ‘being in public.’ In my own research I’ve consistently found that when young people learn about the most basic ways that their personal information is being aggregated, they begin to articulate more sophisticated privacy concerns alongside a general amazement that such surveillance is actually happening — legally — in what they think of as private places: their facebook profile, their email, their texts, and so on.
Sotomayor concludes this point by arguing that society expects more privacy than it currently has in the digital age, and calls for a decoupling of secrecy and privacy in order to develop more situated and accurate judicial understandings of when and where people expect privacy:
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties … This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. 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. Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. 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. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
Lawrence Lessig on the need to build protections for privacy and autonomy into the internet’s architecture. From CODE 2.0, p45 (emphasis mine):
[The end-to-end principle] has been a core principle of the Internet’s architecture, and, in my view, one of the most important reasons that the Internet produced the innovation and growth that it has enjoyed. But its consequences for purposes of identification and authentication make both extremely difficult with the basic protocols of the Internet alone. It is as if you were in a carnival funhouse with the lights dimmed to darkness and voices coming from around you, but from people you do not know and from places you cannot identify. The system knows that there are entities out there interacting with it, but it knows nothing about who those entities are. While in real space —and here is the important point—anonymity has to be created, in cyberspace anonymity is the given.
This difference in the architectures of real space and cyberspace makes a big difference in the regulability of behavior in each. The absence of relatively self-authenticating facts in cyberspace makes it extremely difficult to regulate behavior there … We ’re far enough into this history to see that the trend toward this authentication is unstoppable. The only question is whether we will build into this system of authentication the kinds of protections for privacy and autonomy that are needed.
The official Growing Up Policed Vimeo Channel is now live! This channel includes video of presentations, panels, and discussions from the Growing Up Policed: Surveilling Racialized Sexualities Mini-Conference that took place at both the University of Oregon and the CUNY Graduate Center on 12/01/2011.
Incited by the case of the felony conviction of a young woman of color for sexting with her girlfriend in Oregon and participatory research on criminalization among 1,100 young people in New York City, the mini-conference focused on the nexus of youth, technology, law enforcement, and constructions of racialized sexuality. Using a broad definition of “policing” that extends across jails, schools, subways, and cyberspace, the conference examined the tools that parents, professionals, and others use to watch over, intervene with, and attempt to “correct” youth [more info: opencuny.org/growinguppoliced].
Conference Opening by Michelle Fine:
Presentations, Panels, and Discussions:
From the article: “A new wave of startups is working on algorithms gathering data for banks from the web of associations on the internet known as “the social graph,” in which people are “nodes” connected to each other by “edges.” Banks are already using social media to befriend their customers, and increasingly, their customers’ friends. The specifics are still shaking out, but the gist is that eventually, social media will account for at least the tippy-top of the mountain of data banks keep on their customers.”
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