Vol. 47, Issue 3 ‣ perspective
On Privacy Jay Stanley
Technology is a great enabler, but it’s also a brutal, intrusive force. Americans today live under the constant watch of prying eyes that are essentially everywhere and never blink. Cell phone location data and license plate scanners enable law enforcement to track and trace your movements—without a warrant. Every time you call or text a friend, you leave a record that the government can access—again without a warrant or even probable cause. Whatever your Google searches and email habits say about you—The Man knows it, and can wield it against you.
Creepy? The American Civil Liberties Union (ACLU) thinks so too, and is pushing for federal legislation to close loopholes in existing privacy law that enable wholesale, bulk surveillance.
Freedom spoke with Jay Stanley, an ACLU senior policy analyst focused on technology-related privacy and civil liberties issues, about the most pressing issues of privacy today, and changes the ACLU would like to see to laws governing the sanctity of your electronic trace.
How are government and law enforcement leveraging surveillance technology and what’s on the horizon?
More and more of our lives are lived online and because of that we are leaving increasing data trails and records of what we do and where we go. All this information is available to the government through electronic eavesdropping laws that have been broadened over the years.
In the face of all the new technologies that can surveil us in ways never before possible, it’s hard to keep up. Our laws have fallen behind, and people have fallen behind in their ability to digest and understand the ways that their privacy can be invaded. It’s easier than ever before for law enforcement and national security agencies to get vast amounts of detail about people’s lives.
The underlying premise behind the tacit public approval of leveraging technology for law enforcement purposes is that these measures could prevent another 9/11-style attack. What is your response?
I am not sure that people acquiesced to this surveillance to begin with—there has been little or no public debate on much of this.
The fact is mass surveillance of the public such as the type the NSA is engaged in produces very questionable results. And of course mass surveillance is at odds with the oldest traditions of American law—we don’t let the government watch everyone just in case they are engaged in wrongdoing. So mass surveillance is just a bad deal—we’re giving up core freedoms and in exchange getting very little if any additional safety.
Name three pressing personal privacy issues the ACLU is tracking and why they matter.
Law enforcement access to cell phone location data is one. Many cell phone companies keep records of where you are. Law enforcement says it doesn’t need a warrant to get this information even though they need a warrant to listen to conversations. Records of where you’ve been can be extraordinarily sensitive, and we think law enforcement should go before a judge and get a warrant before it engages in such a big intrusion on our privacy.
Another issue is law enforcement use of license plate scanners that allow police to keep records of everyone’s movements. We don’t have a problem with checking for things like stolen cars—but why should the comings and goings of people who aren’t suspected of any crime be stored in police databases?
The third is NSA surveillance. Every time you call a friend, the NSA tracks that call. There is no reason for this and it’s certainly done without probable cause. Allowing our security agencies to collect this kind of information, where there’s no suspicion of wrongdoing, just gives the government too much power. Given our history, it’s inevitable that it will be abused.
The ACLU is calling for an update to the 1986 Electronic Communications Privacy Act, which allows the government to gather personal information collected by cell phone providers, search engines, social networking sites, and other websites. Specifically, what changes would the ACLU like to see?
There are five changes we would like to see:
Robustly protect all personal electronic information. Current loopholes in our privacy laws must be closed to ensure that electronic information receives full warrant protection regardless of its age or nature.
Safeguard location information. Location as transmitted by my cell phone and other mobile devices is clearly personal information. Government officials should have to obtain a warrant based on probable cause before accessing it.
Institute appropriate oversight. Existing reporting requirements for wiretap orders must be extended to all types of law enforcement surveillance requests.
Require a suppression remedy. The same rules should apply for electronic and non-electronic information: If it’s illegally obtained, it should not be used against an individual in court.
Craft reasonable exceptions. Records should only be viewed in a true emergency with informed consent and proper notice.
Almost weekly come reports of security breaches involving confidential records. Must people just accept the fact that real privacy is a thing of the past?
There are things around the margins that can be done to protect privacy. You can use encryption. You can search out companies that have better privacy protections than others. For example, I use DuckDuckGo for Internet searches instead of Google because the former does not record my searches. But it is very hard for individuals to control their online privacy risk.
What we need is action at the national level. Congress needs to pass laws better protecting the public from invasion of their privacy.
What’s the best way for people to voice their opinions about privacy issues? And, if and when will things change?
Be active in local government on these issues and get behind bills at the national level.
Vote with your feet. Don’t [patronize] businesses that invade personal privacy. Refuse to give information. Why should you have to give your date of birth just to buy flowers? And use encryption on your computer. This won’t help much if the NSA wants to hack your machine, but it will make bulk surveillance more difficult. Every little bit helps until new laws are passed to restore a balance between government power and personal privacy.
How long will it take to see change? I don’t know. People need privacy and will find ways to get it. What I can tell you is that these issues won’t go away. Ultimately, I don’t think people will accept what’s going on.