The US Supreme Court has ruled in the case of United States v. Jones. In Jones, the police, without a valid warrant, placed a global positioning satellite (GPS) technology device on the car of a suspected drug dealer in Washington, D.C. The police then tracked the movements of Antoine Jones for several weeks with this device, and they used the data collected to convict him of conspiracy to sell cocaine. The Supreme Court was set to decide whether the warrantless surveillance and tracking was a search under the Fourth Amendment right against unreasonable searches and seizures. In a unanimous decision (Supreme Court pdf; archive pdf), the court held that police do need a valid warrant to place a GPS device on a vehicle. There were three opinions: the majority by Justice Scalia, a concurrence by Justice Alito and a concurrence by Justice Sotomayor.

The majority opinion was premised on the fact that there was a physical trespass, or intrusion, by putting the device on the vehicle. It did not decide an issue of privacy. Scalia’s majority opinion said, that “It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.”

Justice Alito’s concurrence (which included Justices Ginsburg, Breyer and Kagan) accused the majority of “decide[ing] this case based on 18th-century tort law” though “This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time.” Read more »

In an opinion column at the Washington Post, George Washington University law professor Jonathan Turley discussing how the United States’ expanding security powers can affect individual privacy and liberties:

Every year, the State Department issues reports on individual rights in other countries, monitoring the passage of restrictive laws and regulations around the world. Iran, for example, has been criticized for denying fair public trials and limiting privacy, while Russia has been taken to task for undermining due process. Other countries have been condemned for the use of secret evidence and torture.

Even as we pass judgment on countries we consider unfree, Americans remain confident that any definition of a free nation must include their own — the land of free. Yet, the laws and practices of the land should shake that confidence. In the decade since Sept. 11, 2001, this country has comprehensively reduced civil liberties in the name of an expanded security state. The most recent example of this was the National Defense Authorization Act, signed Dec. 31, which allows for the indefinite detention of citizens. At what point does the reduction of individual rights in our country change how we define ourselves?

While each new national security power Washington has embraced was controversial when enacted, they are often discussed in isolation. But they don’t operate in isolation. They form a mosaic of powers under which our country could be considered, at least in part, authoritarian. Americans often proclaim our nation as a symbol of freedom to the world while dismissing nations such as Cuba and China as categorically unfree. Yet, objectively, we may be only half right. Those countries do lack basic individual rights such as due process, placing them outside any reasonable definition of “free,” but the United States now has much more in common with such regimes than anyone may like to admit. [...] Read more »

Tomorrow, Privacy Lives will join others in going dark in protest of the U.S. Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA). Congress is about to censor the Internet, even though the majority of Americans are opposed to these bills. We need to stop these bills to protect our rights to free speech, privacy, and liberty. Learn more at Public Knowledge.

In the last year, that has been increasing focus on the use of aerial drones (also known as unmanned aerial vehicles, “UAVs”) to conduct surveillance in the United States. Last year, the Washington Post had an in-depth report of possible privacy problems with the domestic use of aerial drones, which are commonly used in military operations. (Be sure to take a look at the Post’s graphic on the specs, abilities and uses of different UAVs.) The ACLU released a report on this technology, “Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft” (ACLU pdf; archive pdf). The Center for Democracy and Technology has looked into the privacy issues that can arise from commercial and domestic law enforcement use of drones.

And now, the Washington Post reports that the Electronic Frontier Foundation has filed a lawsuit against the Department of Transportation to learn more about the use of drones in the United States.

The Federal Aviation Administration has authorized the use of hundreds of drones in U.S. airspace in recent years but offered few details on who is operating them.

This week, a privacy advocacy group filed suit to force the Department of Transportation to release its records publicly.

“Drones give the government and other unmanned aircraft operators a powerful new surveillance tool to gather extensive and intrusive data on Americans’ movements and activities,” said Jennifer Lynch, attorney for the San Francisco-based Electronic Frontier Foundation, which filed the suit in U.S. District Court in Northern California. “As the government begins to make policy decisions about the use of these aircraft, the public needs to know more about how and why these drones are being used to surveil United States citizens.” Read more »

In an opinion column at Digital Trends, Geoff Duncan discusses how he believes 2012 seems to look like “1984,” the George Orwell book about a dystopian future where constant government surveillance is the norm:

A mantra of the Internet age, articulated in 1984 by WELL founder Stewart Brand, is that “information wants to be free.” Back then — the days of 360K floppies and 1200 baud modems — Brand was referring to digital technology making information ever easier to distribute, copy, and remix than their old-school analog counterparts. The oft-forgotten corollary Brand offered at the same time was “Information also wants to be expensive,” because particular items, while perhaps of no interest to one person, can be “immeasurably valuable” to someone else.

As we head into 2012, the conflict Brand articulated between information’s “want” to be both free and expensive is taking on new dimensions. So-called “digital content” like books, music, and television is increasingly falling into the expensive category, thanks to online stores, digital distribution, copyright, and DRM. Meanwhile, information about ourselves — like our location, habits, activities, possessions, transactions, preferences, and personal information — is increasingly becoming “free,” often accessible to advertisers, corporations, and governments without our explicit consent. Or, in many cases, proffered up willingly in exchange for things like coupons.

As we enter 2012, the tension between “free” and “expensive” information is becoming more charged than ever. What could 2012 bring… and will it end up resembling Orwell’s 1984? Here are a few of the threats on the horizon.

The Stop Online Piracy Act and its companion piece, the PROTECT IP Act (PIPA) are bills currently being crafted by U.S. Congress aiming to expand the capabilities of U.S. law enforcement agencies to combat copyright and intellectual property infringement — piracy. [...] Read more »

The Department of Homeland Security’s Privacy Office has released a privacy impact assessment, “Future Attribute Screening Technology (FAST)/Passive Methods for Precision Behavioral Screening, DHS/S&T/PIA-012(a)” (DHS pdf; archive pdf); this is an update to a Privacy Impact Assessment (pdf) released in 2008. FAST, which I wrote about four years ago, seeks to divine an individual’s criminal or benign intent from a bio scan, and members of Congress have raised privacy questions concerning the technology.

According to DHS, “FAST seeks to improve the screening process at transportation and other critical checkpoints by developing physiological and behavior-based screening techniques that will provide additional indicators to screeners to enable them to make more informed decisions. FAST is not intended to provide ―probable cause for law enforcement processes, nor would the technology replace or pre-empt the decisions of human screeners.”

Now, according to the new PIA:

The FAST research is adding a new type of research, the Passive Methods for Precision Behavioral Screening (hereinafter FAST/Passive). The purpose of the FAST/Passive study is to build upon existing FAST research using volunteers and increase the performance of FAST primary screening procedures and to increase the ability to differentiate malintent through the inclusion of passive stimuli. The aim of the FAST/Passive study is to devise passive stimuli that will evoke malintent cues and incorporate these stimuli into the FAST screening project. [...] Read more »