Computers, Privacy & the Constitution

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Paying the price: Technological protection and convenience at the expense of security and Constitutional liberty

This paper aims to demonstrate how governments use technology to expand unwarranted surveillance while marketing it as serving a public benefit. In the U.S., underlying these intrusions is the alienation of inalienable Constitutional liberties, such as the right to be secure against unreasonable searches and seizures.

Technology for the greater good

Technological advancements have advantages and disadvantages. In the age of big data, however, it appears the disadvantages include infringement on inalienable freedoms previously thought to be secured by the U.S. Constitution. Globally, this could mean that abuse of power is widespread and will only worsen.

Tools used for surveillance tend to be marketed as providing some social utility. Some might welcome enhanced surveillance for limited purposes, such as predicting crime, identifying and locating suspects, and preventing stolen identities. With respect to health, Google’s failed flu trends tool was marketed as a tool to detect and prevent outbreaks of influenza. In the time of COVID-19, more advanced technology is similarly marketed as helping prevent the spread of the virus, deploy meals via drones, and observe whether individuals are wearing masks as directed.

Despite these perceived benefits, technology remains a double-edged sword. A 2018 report confirmed that China planned to make video surveillance “omnipresent, fully networked, always working, and fully controllable” by 2020. In addition, one must not disregard the government’s distrust of its people and the measures it is willing to take to maintain control over the individual.

COVID-19 is dangerous because it is triggering a health pandemic in addition to economic challenges and widespread fear. Combined, these elements make people desperate to the extent that they might be more inclined to sacrifice freedom for security (i.e., food, medical treatment, housing) in times of crisis than they otherwise might. In light of propagandizing media coverage and conflicting messaging regarding the seriousness of the pandemic in the U.S., it is not surprising that people may seek protection at the expense of security.

Convenience at the expense of freedom

Even when setting aside concerns of COVID-19, the U.S. faces its own problem of government sanctioned surveillance. Recently, the New York’s MTA implemented a new system of fare payment (“OMNY reader”) for the subway and public buses. Like technologies already discussed, this new advancement is marketed as a convenient way to pay using contactless technology or RFID. More alarming is that RFID’s vulnerabilities are well-known. For nearly two decades, Dr. Katherine Albrecht has advocated against RFID, or as she calls it “spychips,” due to the technology’s threat to privacy and civil liberties. Unique to RFID is that it functions without a battery and instead uses radio waves to communicate with an RFID reader – sometimes completely detectless. The MTA’s use of RFID readers and reliance on contactless payment puts consumers at great risk of their personal information being hacked. In addition to such vulnerability, the OMNY readers present concerns surrounding unauthorized surveillance and misuse of personal information. As one researcher put it “you lose control of your data, you lose control of your narrative.”

Indeed, while some government actors repurpose information obtained through modern technology to endorse invasion of privacy, other government actors such as U.S. Supreme Court Justices should combat repurposing by “translating” Fourth Amendment values “into the context of cyberspace.” Lawrence Lessig, Reading the Constitution in Cyberspace, 43 Emory L.J., page 5 (1996). Lessig’s endorsement of Brandeis’s dissent in Olmstead serves as a useful tool in understanding the need to preserve Constitutional values in times of diminished privacy. On the other hand, however, this concept raises inquiries about whether and how the current bench would understand the importance of Brandeis’s view. Such inquiries may be futile because, as Lessig anticipates, “judges will defer to those with democratic authority; without clear rules to limit the democrats, the juricrats will step aside” (p. 6) and furthermore, “the judicial answer will favor power, rather than privacy” (p. 28). As the switch to OMNY demonstrates, long after Lessig’s article, tensions between governmental abuse of power and technological advancements for the ‘greater good’ persist.

Rural safe havens for the overly-surveilled?

If Big Data can’t sell an individual’s information, what does that mean for individual freedom? As Lucas Mearian discusses in “Big data to drive a surveillance society” (Computerworld, March 24, 2011), geo-locational tracking via cell phones steps in to surveil where internet monitoring is insufficient. While the article focuses on exposing the relationship of big data analytics and retailer surveillance, it nonetheless exemplifies the capacity for unauthorized surveillance in 2011. In today’s context, one must assume technology has advanced to the point of ever-reaching unauthorized surveillance. But, what about in rural communities wherein there remains no cell towers and no broadband or wireless internet (e.g., Native American reservations and the digital divide in Indian Country)? Are residents in these communities more or less vulnerable to invasions of privacy through government sanctioned surveillance?

A couple of things militate against rural areas being surveillance safe havens: IP addresses and banking activity. Thomas Lowenthal describes in “IP address can now pin down your location to within a half mile” (Ars Technica, April 22, 2011) how servers use “local businesses, government agencies, and educational institutions as landmarks” to identify in real time a user’s geolocation data. In the rural environment, this could mean that government buildings or law enforcement headquarters, which probably rely on some form of surveillance technology (to surveil the community, the incarcerated population, and to communicate to other first-responders), subject even the most rural communities to unwarranted invasions of privacy. In addition, as with RFID, banking activities in the most isolated parts of the world are still monitored.

So is there any place in which big data has not reached? A related inquiry (perhaps for another paper) is knowing the vulnerabilities and infringement of Constitutional liberties that technology brings with it, should rural communities be advocating for access to broadband at all?

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