Privacy, Security & Government Surveillance

Yesterday, June 25, 2014, the U.S. Supreme Court issued two important opinions that advance free markets and free people in Riley v. California and ABC v. AereoI’ll soon have more to say about the latter case, Aereo, in which my organization filed a amicus brief along with the International Center for Law and Economics. But for now, I’d like to praise the Court for reaching the right result in a duo of cases involving police warrantlessly searching cell phones incident to lawful arrests.

Back in 2011, when I wrote in a feature story in Ars Technica—which I discussed on these pages—police in many jurisdictions were free to search the cell phones of individuals incident to their arrest. If you were arrested for a minor traffic violation, for instance, the unencrypted contents of your cell phone were often fair game for searches by police officers.

Now, however, thanks to the Supreme Court, police may not search an arrestee’s cell phone incident to her or his arrest—without specific evidence giving rise to an exigency that justifies such a search. Given the broad scope of offenses for which police may arrest someone, this holding has important implications for individual liberty, especially in jurisdictions where police often exercise their search powers broadly.

 

My latest law review article is entitled, “Privacy Law’s Precautionary Principle Problem,” and it appears in Vol. 66, No. 2 of the Maine Law Review. You can download the article on my Mercatus Center page, on the Maine Law Review website, or via SSRN. Here’s the abstract for the article:

Privacy law today faces two interrelated problems. The first is an information control problem. Like so many other fields of modern cyberlaw—intellectual property, online safety, cybersecurity, etc.—privacy law is being challenged by intractable Information Age realities. Specifically, it is easier than ever before for information to circulate freely and harder than ever to bottle it up once it is released.

This has not slowed efforts to fashion new rules aimed at bottling up those information flows. If anything, the pace of privacy-related regulatory proposals has been steadily increasing in recent years even as these information control challenges multiply.

This has led to privacy law’s second major problem: the precautionary principle problem. The precautionary principle generally holds that new innovations should be curbed or even forbidden until they are proven safe. Fashioning privacy rules based on precautionary principle reasoning necessitates prophylactic regulation that makes new forms of digital innovation guilty until proven innocent.

This puts privacy law on a collision course with the general freedom to innovate that has thus far powered the Internet revolution, and privacy law threatens to limit innovations consumers have come to expect or even raise prices for services consumers currently receive free of charge. As a result, even if new regulations are pursued or imposed, there will likely be formidable push-back not just from affected industries but also from their consumers.

In light of both these information control and precautionary principle problems, new approaches to privacy protection are necessary. Continue reading →

I recently did a presentation for Capitol Hill staffers about emerging technology policy issues (driverless cars, the “Internet of Things,” wearable tech, private drones, “biohacking,” etc) and the various policy issues they would give rise to (privacy, safety, security, economic disruptions, etc.). The talk is derived from my new little book on “Permissionless Innovation,” but in coming months I will be releasing big papers on each of the topics discussed here.

Additional Reading:

Recent reports highlight that the telephone meta-data collection efforts of the National Security Agency are being undermined by the proliferation of flat-rate, unlimited voice calling plans.  The agency is collecting data for less than a third of domestic voice traffic, according to one estimate.

It’s been clear for the past couple months that officials want to fix this, and President Obama’s plan for leaving meta-data in the hands of telecom companies—for NSA to access with a court order—might provide a back door opportunity to expand collection to include all calling data.  There was a potential new twist last week, when Reuters seemed to imply that carriers could be forced to collect data for all voice traffic pursuant to a reinterpretation of the current rule.

While the Federal Communications Commission requires phone companies to retain for 18 months records on “toll” or long-distance calls, the rule’s application is vague (emphasis added) for subscribers of unlimited phone plans because they do not get billed for individual calls.

The current FCC rule (47 C.F.R. § 42.6) requires carriers to retain billing information for “toll telephone service,” but the FCC doesn’t define this familiar term.  There is a statutory definition, but you have to go to the Internal Revenue Code to find it.  According to 26 U.S.C. § 4252(b),

the term “toll telephone service” means—

(1) a telephonic quality communication for which

(A) there is a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication… Continue reading →

Last December, it was my pleasure to take part in a great event, “The Disruptive Competition Policy Forum,” sponsored by Project DisCo (or The Disruptive Competition Project). It featured several excellent panels and keynotes and they’ve just posted the video of the panel I was on here and I have embedded it below. In my remarks, I discussed:

  • benefit-cost analysis in digital privacy debates (building on this law review article);
  • the contrast between Europe and America’s approach to data & privacy issues (referencing this testimony of mine);
  • the problem of “technopanics” in information policy debates (building on this law review article);
  • the difficulty of information control efforts in various tech policy debates (which I wrote about in this law review article and these two blog posts: 1, 2);
  • the possibility of less-restrictive approaches to privacy & security concerns (which I have written about here as well in those other law review articles);
  • the rise of the Internet of Things and the unique challenges it creates (see this and this as well as my new book); and,
  • the possibility of a splintering of the Internet or the rise of “federated Internets.”

The panel was expertly moderated by Ross Schulman, Public Policy & Regulatory Counsel for CCIA, and also included remarks from John Boswell, SVP & Chief Legal Officer at SAS, and Josh Galper, Chief Policy Officer and General Counsel of Personal, Inc. (By the way, you should check out some of the cool things Personal is doing in this space to help consumers. Very innovative stuff.) The video lasts one hour. Here it is:

book cover (small)I am pleased to announce the release of my latest book, “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom.” It’s a short manifesto (just under 100 pages) that condenses — and attempts to make more accessible — arguments that I have developed in various law review articles, working papers, and blog posts over the past few years. I have two goals with this book.

First, I attempt to show how the central fault line in almost all modern technology policy debates revolves around “the permission question,” which asks: Must the creators of new technologies seek the blessing of public officials before they develop and deploy their innovations? How that question is answered depends on the disposition one adopts toward new inventions. Two conflicting attitudes are evident.

One disposition is known as the “precautionary principle.” Generally speaking, it refers to the belief that new innovations should be curtailed or disallowed until their developers can prove that they will not cause any harms to individuals, groups, specific entities, cultural norms, or various existing laws, norms, or traditions.

The other vision can be labeled “permissionless innovation.” It refers to the notion that experimentation with new technologies and business models should generally be permitted by default. Unless a compelling case can be made that a new invention will bring serious harm to society, innovation should be allowed to continue unabated and problems, if they develop at all, can be addressed later.

I argue that we are witnessing a grand clash of visions between these two mindsets today in almost all major technology policy discussions today. Continue reading →

Ladar Levison on Lavabit

Post image for Ladar Levison on Lavabit

by on February 4, 2014 · 0 comments

Ladar Levison, founder of encrypted email service Lavabit, discusses recent government action that led him to shut down his firm. When it was suspected that NSA whistleblower Edward Snowden used Lavabit’s email service, the FBI issued a National Security Letter ordering Levison to hand over SSL keys, jeopardizing the privacy of Lavabit’s 410,000 users. Levison discusses his inspiration for founding Lavabit and why he chose to suspend the service; how Lavabit was different from email services like Gmail; developments in his case and how the Fourth Amendment has come into play; and his involvement with the recently-formed Dark Mail Technical Alliance.

Download

Related Links

Last week, it was my great pleasure to be invited on NPR’s “On Point with Tom Ashbrook,” to debate Jeffrey Rosen, a leading privacy scholar and the president and chief executive of the National Constitution Center. In an editorial in the previous Sunday’s New York Times (“Madison’s Privacy Blind Spot”), Rosen proposed “constitutional amendment to prohibit unreasonable searches and seizures of our persons and electronic effects, whether by the government or by private corporations like Google and AT&T.” He said his proposed amendment would limit “outrageous and unreasonable” collection practices and would even disallow consumers from sharing their personal information with private actors even if they saw an advantage in doing so.

I responded to Rosen’s proposal in an essay posted on the IAPP Privacy Perspectives blog, “Do We Need A Constitutional Amendment Restricting Private-Sector Data Collection?” In my essay, I argued that there are several legal, economic, and practical problems with Rosen’s proposal. You can head over to the IAPP blog to read my entire response but the gist of it is that “a constitutional amendment [governing private data collection] would be too sweeping in effect and that better alternatives exist to deal with the privacy concerns he identifies.” There are very good reasons we treat public and private actors differently under the law and there “are all far more practical and less-restrictive steps that can be taken without resorting to the sort of constitutional sledgehammer that Jeff Rosen favors. We can protect privacy without rewriting the Constitution or upending the information economy,” I concluded.

But I wanted to elaborate on one particular thing I found particularly interesting about Rosen’s comments when we were on NPR together. During the show, Rosen kept stressing how we needed to adopt a more European construction of privacy as “dignity rights” and he even said his proposed privacy amendment would even disallow individuals from surrendering their private data or their privacy because he viewed these rights as “unalienable.” In other words, from Rosen’s perspective, privacy pretty much trumps everything, even if you want to trade it off against other values.  Continue reading →

Last night, I appeared on a short segment on the PBS News Hour discussing, “What’s the future of privacy in a big data world?” I was also joined by Jules Polonetsky, executive director of the Future of Privacy Forum. If you’re interested, here’s the video. Transcript is here. Finally, down below the fold, I’ve listed a few law review articles and other essays of mine on this same subject.

Continue reading →

With each booth I pass and presentation I listen to at the 2014 International Consumer Electronics Show (CES), it becomes increasingly evident that the “Internet of Things” era has arrived. In just a few short years, the Internet of Things (IoT) has gone from industry buzzword to marketplace reality. Countless new IoT devices are on display throughout the halls of the Las Vegas Convention Center this week, including various wearable technologies, smart appliances, remote monitoring services, autonomous vehicles, and much more.

This isn’t vaporware; these are devices or services that are already on the market or will launch shortly. Some will fail, of course, just as many other earlier technologies on display at past CES shows didn’t pan out. But many of these IoT technologies will succeed, driven by growing consumer demand for highly personalized, ubiquitous, and instantaneous services.

But will policymakers let the Internet of Things revolution continue or will they stop it dead in its tracks? Interestingly, not too many people out here in Vegas at the CES seem all that worried about the latter outcome. Indeed, what I find most striking about the conversation out here at CES this week versus the one about IoT that has been taking place in Washington over the past year is that there is a large and growing disconnect between consumers and policymakers about what the Internet of Things means for the future.

When every device has a sensor, a chip, and some sort of networking capability, amazing opportunities become available to consumers. And that’s what has them so excited and ready to embrace these new technologies. But those same capabilities are exactly what raise the blood pressure of many policymakers and policy activists who fear the safety, security, or privacy-related problems that might creep up in a world filled with such technologies.

But at least so far, most consumers don’t seem to share the same worries. Continue reading →