privacy by xiangpeng

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									The Fourth Amendment and
       Surveillance


        Lillie Coney
      Associate Director
            EPIC
Lillie Coney is Associate Director of the
Electronic Privacy Information Center. EPIC is a
public interest research center established in 1994
to focus public attention on emerging civil
liberties issues and to protect privacy, the First
Amendment, and constitutional values.
                 http://www.epic.org/
 The Fourth Amendment
• 4th Amendment provides a right of privacy in documents,
  materials, and records: “to be secure in their persons, houses,
  papers, and effects, against unreasonable searches and seizures,
  (Brandeis Dissent Olmstead v. United States, 277 U.S. 438
  (1938)
          What is Privacy?
• An intangible property right
  – The right to be let alone
  – The right to be anonymous
  – The right to control who, when, where, and
    how information about us is shared
  – A recently recognized human right
       “Right to let alone…”
• Information Privacy Law encompasses
  common law, constitutional law, statutory
  law, and international law.
• “The chief enemy of privacy in modern life
  is that interest in other people and their
  affairs known as curiosity…” source E.L.
  Godkin 1890 article
     The Right of Privacy is
    Challenged by Technology
• The Right to Privacy, Samuel Warren and
  Louis Brandeis, Harvard Law Review
  (1890)
  – A proposal to expand common law to include
    protection of privacy rights
• Law based on custom and usage and
  confirmed by the decisions of judges, as
  distinct from statutory law.
  Privacy Common Law Rights
         Under Pressure
• Innovations in technology: photography,
  audio recording, motion pictures,
  computers, telecommunications, digital
  data, networking of data bases
• New business and government practices
  – Record keeping, collection and use of personal
    information, data mining, networking of
    informational data on persons
              Types of Privacy
•   Bodily Privacy       •   Financial Privacy
•   Locational Privacy   •   Children’s Privacy
•   Political Privacy    •   Data Privacy
•   Medical Privacy      •   Firearms Privacy
•   Genetic Privacy
                         •   Workplace Privacy
•   Internet Privacy
                         •   Travel Privacy
•   Voter Privacy
•   Family Privacy       •   Postal Service Privacy
•   Religious Privacy    •   Digital Info. Privacy
       Federal Privacy Case Law
Griswold v. Connecticut, 318 U.S. 478 (1965)
   – Court Declared that individuals have a constitutional
      right to privacy found in the “penumbras” or “zones” of
      freedom created by an expansive interpretation of the
      Bill of Rights
Katz v. United States, 389 U.S. 347 (1967)
   – The 4th Amendment protects people and not places
   – Police must obtain warrants when searches take place
      in public locations like a phone booth
Whalen v. Roe, 433 U.S. (1977) Privacy rights extended to
  the avoidance of disclosure of personal matters.
    Reasonable Expectation of
            Privacy
• The test:
  – A person must have exhibited an actual
    (subjective) expectation of privacy
  – The expectation be one that society is
    prepared to recognize as reasonable.
       Common Law Evolution
• Right to life
   – Freedom from physical injury
   – Freedom from fear of physical injury
• Right to liberty
   – Freedom from physical restraint
• Right to the pursuit of happiness
   – Tangible and intangible
Tangible and Intangible Property
• Tangible right
   – Ownership of property physical and intellectual
   – Control of physical space protected by the 4th
     Amendment
• Intangible rights
   – Right to be happy
   – Freedom from nuisance
   – Freedom from slander and liable
      Pro-Privacy Statutory Law
• Fair Credit Reporting Act 1970 (public law 90-32, 15
  U.S.C. Sec. 1681)
• Privacy Act 1974 (public law 93-579, 5 U.S.C. Sec 552a)
• Family Education Rights and Privacy Act of 1974 (public
  law 93-380, 20 U.S.C. Sec. 1221)
• Right to Financial Privacy 1978 (public law 95-630, 12
  U.S.C. Sec. 3401-3422)
• Foreign Intelligence Surveillance Act of 1978 (public law
  95-511, 15 U.S.C. Sec. 1801-1811)
       Pro-Privacy Statutory Law
•   Privacy Protect Act 1980
•   Cable Communication Policy Act 1984
•   Electronic Communications Privacy Act 1986
•   Computer Matching and Privacy Protection Act 1988
•   Employee Polygraph Protection Act 1988
•   Video Privacy Protection Act 1988
•   Telephone Consumer Protection Act 1991
•   Driver’s Privacy Protection Act of 1994
     Pro-Privacy Statutory Law
• Children’s Online Privacy Protection Act 1998
• Gramm-Leach-Bliley Act 1999
• CAN-SPAM Act 2003
• Fair and Accurate Credit Transaction Act 2003
• Video Voyeurism Prevention Act 2004
• Telephone Records and Privacy Protection Act 2006
• Health Insurance Portability and Accountability Act
  1996
• Identity Theft and Assumption Deterrence Act 1998
 Statues Mandating Collection of
             Data
• Bank Secrecy Act 1970
• Communications Assistance for Law
  Enforcement Act 1994
• Personal Responsibility and Work
  Opportunity Reconciliation Act 1996
• USA PATRIOT Act 2001
          Privacy v. Security
• Privacy Interests: 4th and 5th Amendment
  regulates the application of police authority
• Security Interests: The needs of government
  to ensure safety and security
  – Fixed sobriety check points (not other types of
    check points)
  – Reasonable suspicion
  – Public health inspection of homes
Common Law Protects the Rights
       of Individuals
• The right within reason to control who has access
  to our thoughts, sentiments, and emotions
   – Protect intellectual property rights (publication of
     manuscripts, diaries, sculptures, photographs, etc)
   – Protects against disclosure of personal communications:
     diaries, letters, etc or their content
   – 5th Amendment Protects against disclosing information
     in a government proceeding.
       Government Databases
• Computer Matching and Privacy Protection
  Act (1977)
• Computer Matching and Privacy Protection
  Act (1988)
• No-Fly and Automated Selectee Lists
• CAPPS II to classify people according to a
  threat level
• Secure Flight
     Government Data Mining
• 2002 Total Information Awareness is one
  project that proposed to use linking and
  search capacity to pre-determine threats
• MATRIX an attempt by several states to
  build a criminal data mining effort.
• Use of private contractors to avoid privacy
  act reporting and transparency
  requirements.
        Surveillance = Control
• Jeremy Bentham’s Panopticon describes a circular
  prison with illuminated cells using a central guard
  tower that gives the impression of constant
  watchful eyes. The goal is for the prisoners to
  “internalize the gaze”--become conscious of being
  watch to conform themselves. This new power
  dynamic of the watcher over the watched by
  creating the perfect gage for the mind and body.
     Enforcement Mechanism
• Systems of Surveillance and Enforcement
  – Passes/Freedom Papers
  – Organized Slave Patrols “pattie rollers”
  – Wanted Posters and Newspaper Ads for
    runaways
        History of Government
             Surveillance
• Lincoln Administration
• Anti-Chinese Immigrant Movement
• Criminal Justice Records: Rogue Galleries,
  fingerprints, physical measurements
• Wilson Administration
• Roosevelt Administration
• Nixon Administration
• Clinton Administration
• Bush Administration (2000-2008)
      History of Government
           Surveillance
• Obama Administration (2008-____) ?
Sunshine is the Best Disinfectant:
          1960s-1970s
 • Social and Political Evolution
 • Watergate
 • Church Committee
    • COINTELPRO
    • Freedom of Information Act
    • Federal Privacy Act
Your Papers Please?
Approaches to Surveillance
 Tracking Enabling Technology
• Close-circuit Television Cameras
• Radio Frequency Identification Devices
• Biometric Identifiers
  – DNA Databases
  – Retinal and Fingerprint Scans
  – Physical movement characteristics
         Dual Use Technology
•   Close-circuited Television (CCTV)
•   Data-mining
•   RFID Technology
•   Biometric Identification
•   DNA databases
•   Facial Recognition
•   Brain Pattern Recognition
             Internet Privacy
•   Deep Packet Inspection
•   Shrink Wrap Agreements
•   Tiered Services and Pay-to-Play
•   Living and Working Online
         Future of Surveillance
•   Brain Mapping
•   Thought Pattern Recognition
•   RFID Implants
•   Data Mining Ready or Not
Who will be the Canaries?
    Poor Surveillance Schemes
• Targeting of non-threats
• Increasing the occurrence of false positives
  and false negatives
• Resistance to distinguishing between
  legitimate and illegitimate police efforts
    Learn More About Privacy
• Subscribe to the EPIC Alert epic.org
• Join EPIC’s Discussions on Facebook and
  Twitter
• Follow the Privacy.org blog

								
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