Mary Leary, an associate professor at the Catholic University law school, has published a draft of her forthcoming law review article, “Katz on a Hot Tin Roof – Saving the Fourth Amendment from Commercial Conditioning by Reviving Voluntariness in Disclosures to Third Parties,” concerning individuals’ privacy rights. Here’s the abstract:

In a world in which Americans are tracked on the Internet, tracked through their cell phones, tracked through the apps they purchase, and monitored by hundreds of traffic cameras, privacy is quickly becoming nothing more than a quaint vestige of the past.

In a previous article discussing the intersection of technology and the Fourth Amendment, I proposed reframing the issue away from conventional commentary. The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World, 15 PENN. J. CON. L. 331, 333 (2012). That article posits that society has reached the point about which Justice Blackmun cautioned – the point at which privacy “expectations [have] been ‘conditioned’ by influences alien to well-recognized Fourth Amendment freedoms.” Society finds itself at this juncture not because of governmental conditioning, as Justice Blackmun warned, but because of a concept the article defined as “commercial conditioning.” That proposal called for a legislative requirement that an individual opt into such information disclosure before such a disclosure could be made.

This article further develops the concept of “commercial conditioning,” and explores not a legislative solution, but possible judicial responses to the growing reality of private commercial entities eroding privacy expectations and thereby expanding governmental power. This article seeks to guide the judiciary in analyzing evidence containing certain private information obtained by the government from these commercial entities. Such evidence should be afforded some of the procedural protections of the Fourth Amendment when the government accesses it – a protection not currently available to this private information. Read more »

The Federation of American Scientists has posted a new Congressional Research Service report (FAS pdf; archive pdf) concerning the FBI and its terrorism investigations since the Sept. 11, 2001, terrorism attacks and how the FBI’s investigations affect individuals’ privacy and civil liberty rights. The CRS says, “Since 9/11, the Bureau has arguably taken a much more proactive posture, particularly regarding counterterrorism. It now views its role as both ‘predicting and preventing’ the threats facing the nation, drawing upon enhanced resources.”

The CRS report details “several enhanced investigative tools, authorities, and capabilities provided to the FBI through post-9/11 legislation, such as the USA PATRIOT Act of 2001; the 2008 revision to the Attorney General’s Guidelines for Domestic FBI Operations (Mukasey Guidelines); and the expansion of Joint Terrorism Task Forces (JTTF) throughout the country.” The CRS also discusses the civil liberties controversy surrounding the FBI use of, among other things, national security letters (NSLs), roving wiretaps, “sneak and peek” search warrants.

And CRS notes the publicly condemned domestic surveillance program, COINTELPRO, which revealed that the FBI built dossiers on groups (including the NAACP) that were suspected of having a Communist ideology even though they had not engaged in crimes, and that the agency burglarized political groups to gather data on them: Read more »

NPR looks at a new book from Google executive Eric Schmidt, which includes a discussion of privacy and technology, and interviews him and his co-author about the issues:

Imagine a world with machines that wash, press and dress you on the way to work and vacations via hologram visits to exotic beaches. In his new book, The New Digital Age, Google Executive Chairman Eric Schmidt does just that — but it’s no gee-whiz Jetsons fantasy.

Schmidt partners up with Jared Cohen, a foreign policy counterterrorist specialist poached from the State Department now working for Google Ideas. Together they forecast a raft of new innovations and corresponding threats that will arise for dictatorships, techno revolutionaries, terrorists and you.

Cohen and Schmidt chatted with NPR’s Audie Cornish about negotiating the shifting balance between privacy and security in a rapidly changing technological landscape.

On the cost in privacy to everyday users of the latest technology Read more »

Deutsche Welle reports that there are privacy questions surrounding the European Information System called SIS II, which is set to launch:

A space of free movement without controls on the internal borders – that was the goal of the Schengen Agreement, which has been in effect since 1995. All EU member states belong to the Schengen area with the exception of Great Britain, Ireland, Cyprus, Romania, and Bulgaria. However, Lichtenstein, Iceland, Norway and Switzerland participate.

Within the Schengen zone, citizens can move freely and do not need to check in with authorities as they cross from one country to another. In light of security concerns, the member states established a joint database to be used in manhunts. Called the Schengen Information System (SIS), it has now been reformed in an attempt to make sharing information between offices faster and easier.

In its first generation, the database compiled information about people who were missing, wanted or under observation. When the EU was expanded in 2004, the system was correspondingly broadened to include the new member states. Since then, biometric data, fingerprints and photos are saved and matched up. [...] Read more »

To recap: In the last year, there has been increasing focus on the issue of domestic use of aerial drones (also known as unmanned aerial vehicles, “UAVs”) to conduct surveillance. Months ago, Congress approved the FAA reauthorization bill, which includes a provision to integrate the use of aerial surveillance by drones in the United States by 2015. In July, drone makers sought to answer concerns by releasing voluntary guidelines, but privacy questions remain. Also, there are security questions, as well, as a recent drone “hijacking” proves. First, the voluntary code of conduct, which is not legally binding on the companies that agree to abide by the guidelines. The code states, “We will respect the privacy of individuals.” There are no details on how individuals’ privacy will be respected. In September, the International Association of Chiefs of Police adopted a code of conduct (pdf) for the use of drones in the United States for surveillance of the public. However, although the document has statements such as “Unauthorized use of a UA will result in strict accountability,” there is no information about what such accountability means. Recently, the Government Accountability Office released a report, “Unmanned Aircraft Systems: Measuring Progress and Addressing Potential Privacy Concerns Would Facilitate Integration into the National Airspace System,” (archive pdf). The report recommended that the government address privacy issues with the domestic use of drones.

Recently, Seattle Mayor Mike McGinn decided to scrap the plan for police to use surveillance drones. In a short statement, he said: “Today I spoke with Seattle Police Chief John Diaz and we agreed that it was time to end the unmanned aerial vehicle program, so that SPD can focus its resources on public safety and the community building work that is the department’s priority. The vehicles will be returned to the vendor.” Read more about this in theSeattle Times, “Seattle grounds police drone program.”

Also recently, Charlottesville, Va., became the first city in the United States to pass legislation against the domestic use of drones. U.S. News and World Report says: “The resolution, passed Monday, ‘calls on the United States Congress and the General Assembly of the Commonwealth of Virginia to adopt legislation prohibiting information obtained from the domestic use of drones from being introduced into a Federal or State court,’ and ‘pledges to abstain from similar uses with city-owned, leased, or borrowed drones.’” (For more on legislation in the states concerning drones, read a recent op-ed in Slate by the ACLU. There’s also a roundup of domestic drone legislation in the states at the ACLU’s Free Future blog.)

Now, Idaho has passed a law, SB 1134, that would restrict the use of UAVs by law enforcement officials. Reuters reports:  Read more »

In an opinion column for PC World, Melissa Riofrio lists the threats she sees to Internet users’ privacy rights:

Your online life may not seem worth tracking as you browse websites, store content in the cloud, and post updates to social networking sites. But the data you generate is a rich trove of information that says more about you than you realize—and it’s a tempting treasure for marketers and law enforcement officials alike.

Battles have long raged over how third parties can access and use your data. [...]

Every move we make on our PCs, smartphones, and tablets turns into a data point that trackers can easily collect and share. And you effectively agree to such collecting and sharing whenever you sign up for an online service and accept its privacy policy. [...]

Federal law may or may not mitigate the privacy threats. Efforts to update the Electronic Communications Privacy Act (ECPA) aim to make your online data harder to collect and share. Meanwhile, proposed legislation called the Cyber Intelligence Sharing and Protection Act (CISPA) could make it easier to obtain. Read more »