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Robert Wack: Legal concept of privacy must change

One of my wishes for the new year is that Americans start caring more about protecting their right to privacy.

We now walk naked in a world of transparent walls and a thousand microscopes watching every detail of our lives, but it doesn't have to be that way.

Whether you think Edward Snowden is a hero or a traitor, he revealed NSA activities that should concern everyone. Confirming the worst fears of technophobes, the government monitors mind-boggling amounts of personal information, and several judges have recently confirmed their belief that this monitoring is constitutional. What these judges misunderstand is the kind of information extracted from the surveillance and how it is used. Just because someone isn't actually listening to my voice doesn't mean they aren't learning about what I'm doing.

Tracking when, where and to whom I am communicating, especially over periods of time, builds a picture of my life that certainly constitutes surveillance. Add in the capability of tracking my movements with E-ZPass tags or license plate readers, and visual tracking with fixed or mobile imaging equipment using facial recognition software, and there really isn't any difference between this world and George Orwell's "1984" - all before anyone has committed a single crime, and justified by national security and crime prevention.

It's not just the government. Credit card companies, Amazon, Microsoft, Google, your grocery store, any online merchant you've ever used, they all gather mountains of data on where you shop, what you buy and when, who you send gifts to, where you travel, what web pages you look at, what movies you rent, what books you read, and it all goes into massive databases that are analyzed, dissected, merged, modeled and massaged to extract every tiny insight into your preferences and behavior, all toward the goal of manipulating you into spending more money on what they are selling.

Confronted with this pervasive, unrelenting assault on every aspect of our privacy, most people throw up their hands and shrug in resignation. I haven't committed a crime, so what do I have to worry about? That reasoning is only reassuring until someone makes a mistake and you are pulled over for the already paid fine, or you are penalized for the crime someone else committed or someone uses your personal information to destroy your reputation or credit rating. Then it's too late.

For political partisans of any stripe, imagine a world where the party you oppose has access to every detail of your minute-to-minute existence. Worse, imagine a world where government and corporations cooperate with sharing your personal data for their own purposes. Some in the tech world are starting to push back, but I suspect that's mostly to preempt interference with their own data collection efforts.

What has to change are the legal concepts of privacy and surveillance. Right now, the constitutional standard is that you can only expect absolute privacy within the confines of your home. Unfortunately, the founders could not foresee the advent of drones, the Internet, remote sensing that can see through walls and the data mining technologies that can accurately predict the next time I leave my house to buy Cap'n Crunch.

Thomas Jefferson and James Madison lived in a world where you could only see and hear things available to human senses. The technology we use to extend our senses to superhuman levels creates new challenges they could not foresee.

The right to privacy has to be re-imagined as an inviolable bubble that surrounds every person, no matter where they are and what they are doing. How big that bubble is depends on who and where you are, and what you are doing. If you are hanging around the White House or the Pentagon, the bubble shrinks or disappears, but if you are relaxing at home, it's big and opaque. If you break a law, you give away your privacy. But if you are an innocent citizen minding your own business, you should be invisible. This should apply to both the government and the private sector.

Surveillance has to be redefined as any effort to collect data of any kind about a private citizen, by any means, under any circumstances. If the government or a corporation wants to put you under surveillance, they have to follow rules, and if it's more than some basic level, they have to ask permission, either from the individual or a court for security or police activities.

Obviously, a lot of details remain to be worked out, but until we start the basic work of rethinking important concepts of privacy, we'll continue with the preposterous situation of federal judges opining that the government is allowed to spy on innocent citizens without restraint. We need to get to work.

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