Skating on Stilts

The Inexorable March of Technology

One of the constant tensions between privacy and technology is that the technology advances so rapidly that privacy policy simply can't keep up.  The old ideas of Fair Information Practices, especially the use and purpose limitations that form the bedrock of most privacy approaches, simply can't withstand the assault of technological change.  Two recent articles, a blog post by Jeff Jonas (of IBM) and a column by Ari Juels (of RSA) illustrate the depths of the problem.

Jonas sees a world in which location based systems will be able to perform analytic functions to assess your physical movements.  Juels sees analytic short cuts to unique identifiers that will fully identify an individual.  Both recognize that with the prospect of these powerful technologies ahead of us, old-fashioned concerns with things like the privacy protection in RFID chips miss the forest for the trees.  As Juels puts it (and Jonas would surely agree):  "Many people have GPS receivers in their phones and are signing up for location-based services, voluntarily (if selectively) disclosing their movements. There's little point in hiding the serial numbers of chips when your mobile phone squeals on you."

I'm not sure how to build a new set of privacy protections in the face of these massive technological changes.  But I am increasingly concerned that legal privacy constructs that are now more than 25 years old cannot keep up.

Save lives? Let's do it without "snitches." Save the health care bill? Whatever it takes.

 

In 2002, the White House created Operation TIPS, encouraging citizens to report suspicious activity in the wake of 9/11.  As Amitai Etzioni in USA Today succinctly put it, the program "enraged the critics, the media and a large segment of the public. Americans feared that every mail carrier, UPS driver and meter reader would be peeking into their living rooms and that, in effect, we were being asked to spy on one another. TIPS was killed by Congress."

Seven years later, the White House once again called on Americans to report anything "fishy" to the government:

There is a lot of disinformation about health insurance reform out there .... These rumors often travel just below the surface via chain emails or through casual conversation.  Since we can’t keep track of all of them here at the White House, we’re asking for your help. If you get an email or see something on the web about health insurance reform that seems fishy, send it to [email protected].

You can see the difference, of course. 

In 2002, lives were at stake, and we were looking for terrorists, so naturally a volunteer network to report them was condemned as creating a "society of snitches" by folks like the Center for Constitutional Rights.

In 2009, though, it's the President's health care initiative that's at stake, for crying out loud, and we're looking for dissenters, so of course we need a volunteer network to report them straight to the White House.

Don't tell me that's a double standard. 

I don't want to have to report you.

Baker moderates cybersecurity panel

I moderated an ABA panel in Chicago on cybersecurity.  Good panelists from the Joint Chiefs, DHS, academia and House Intel Committee.  More details (including a podcast link) at the ABA standing committee on law and national security website.