Monday, June 15, 2009
Teacher Training
The Telegraph reports that MI5 are actively targeting teachers in a new recruitment drive. In the latest Times Educational Supplement they have an advert that urges school staff to apply on the grounds that they can "build trust and relationships with all sorts of individuals".
Friday, June 12, 2009
New York Court holds that use of GPS tracking device without a warrant violates N.Y. Constitution
Last month, the New York Court of Appeals, the highest court in New York’s State court system, held that the use of a GPS tracking device that was surreptitiously attached to an automobile without a warrant violated the automobile owner’s right to be free from unreasonable searches and seizures under the New York State Constitution. The case is People v. Weaver and is currently only available as a Slip Opinion. The type of technology involved played a decisive role for the majority. The most pertinent opinion of the U.S. Supreme Court to date is United States v. Knotts, 460 U.S. 276 (1983) which involved the use of a homing device (referred to in the opinion as a “beeper”) to determine the location of a 5-gallon drum of chloroform as it was moved about over time. In that case, the Supreme Court ruled that the use of the beeper did not involve an unreasonable search in violation of the Fourth Amendment of the U.S. Constitution. The majority in Weaver, however, took efforts to distinguish Knotts on the basis of the technology involved. In Weaver, the majority cast the use of the beeper as a crude tracking device which merely served to supplement and assist visual surveillance on the part of the police. In other words, the majority seemed to suggest that visual surveillance and tailing of the drum constituted the primary form of surveillance, and the beeper helped the police to continue this surveillance whenever visual contact was lost.
With respect to the GPS device, however, the majority stated that “GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or ‘seeing’ by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.” Thus, the use of GPS went too far; the majority seemed uncomfortable with the fact that 1) GPS permitted a form of surveillance which could be carried out completely independently of more rudimentary surveillance based on normal human sensory perception; and 2) the technological advantage provided by GPS was, figuratively speaking, light-years ahead of the beeper device in terms of the information it conveyed and the level of accuracy of that information.
Other distinctions between Knotts and Weaver that can be gleaned from the majority’s opinion suggest that the use of the beeper in Knotts was more limited in scope. This fact also appeared to have an influential role for the majority. For instance, the beeper was only used to track the movement of the container in a single trip from the place of purchase to Knotts’ cabin. The GPS device in Weaver on the other hand tracked the position of Weaver’s van for a period of 65 days. Additionally, the beeper was placed on the drum of chloroform, whereas the GPS device was attached to Weaver’s van. Thus, the GPS device could potentially provide the police with a picture of Weaver’s every move, whereas the beeper could only assist the police in determining where Knotts went with the chloroform drum in tow. The majority seemed disturbed by the fact that the combination of these two elements — the location of the tracking device on the vehicle and the duration of its residing there — could reveal a great deal of information about Weaver’s personal life by recording the places he had visited (whether they be places of worship, particular medical offices, by-the-hour hotels, etc.) within the 65-day period and with relatively little cost in effort.
Two judges wrote dissenting opinions in which they were each both joined by a third judge. I find both dissents quite compelling. The second dissent by Judge Read focuses more on the legal aspects of constitutional interpretation in New York, which are (I suspect) of less interest to the wider audience of this blog. In the other dissenting opinion (in which Judge Read concurred), however, Judge Smith argued that the GPS device actually did not provide the police with any more information than could be obtained by assigning a police detail to follow Weaver and observe his activities for 65 days. He criticized the majority for seeming to base their opinion on the sophistication of the technology involved as opposed to the places and things which the technology was used to surveil. At one point he quips: “I suspect that the GPS used in this case will seem primitive a quarter of a century from now. Will that mean that police will then be allowed to use it without a warrant?”
This question of technology as discussed by the members of the court touches on an issue that was alluded to at our first DETECTER meeting in Birmingham, but which we were unfortunately unable to discuss in much detail due to time constraints: namely, do new technological developments allow the police and intelligence authorities to expand the scope of surveillance beyond what was possible in the past? I agree with Judge Smith that the GPS device didn’t provide the police with more information than could have been gathered by tailing Weaver’s van for 65-days. In fact, the police detail could have provided much more information since it would have been in a position to observe Weaver’s own actions rather than the position of the van alone (Not to mention that, as it turns out, the van in question was not involved in the commission of the crime of which Weaver had been accused). Yet, the majority also has a point with respect to the virtual “effortlessness” of information-gathering which the GPS device makes possible. In other words, use of the GPS device saved the police from having to attach a surveillance detail to track the van for 65-days around the clock. By sparing the police the costs in terms of “effort” expended, manpower, personnel compensation, the technology makes surveillance “easier” to carry out. On the one hand, this is certainly a good thing if police activities are able to be accomplished more effectively and at lower costs for the public fiscus. On the other hand, didn’t the higher costs associated with traditional surveillance generally act as a deterrent against the use of surveillance where the police had less confidence that the effort would yield any benefit?
With respect to the GPS device, however, the majority stated that “GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or ‘seeing’ by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.” Thus, the use of GPS went too far; the majority seemed uncomfortable with the fact that 1) GPS permitted a form of surveillance which could be carried out completely independently of more rudimentary surveillance based on normal human sensory perception; and 2) the technological advantage provided by GPS was, figuratively speaking, light-years ahead of the beeper device in terms of the information it conveyed and the level of accuracy of that information.
Other distinctions between Knotts and Weaver that can be gleaned from the majority’s opinion suggest that the use of the beeper in Knotts was more limited in scope. This fact also appeared to have an influential role for the majority. For instance, the beeper was only used to track the movement of the container in a single trip from the place of purchase to Knotts’ cabin. The GPS device in Weaver on the other hand tracked the position of Weaver’s van for a period of 65 days. Additionally, the beeper was placed on the drum of chloroform, whereas the GPS device was attached to Weaver’s van. Thus, the GPS device could potentially provide the police with a picture of Weaver’s every move, whereas the beeper could only assist the police in determining where Knotts went with the chloroform drum in tow. The majority seemed disturbed by the fact that the combination of these two elements — the location of the tracking device on the vehicle and the duration of its residing there — could reveal a great deal of information about Weaver’s personal life by recording the places he had visited (whether they be places of worship, particular medical offices, by-the-hour hotels, etc.) within the 65-day period and with relatively little cost in effort.
Two judges wrote dissenting opinions in which they were each both joined by a third judge. I find both dissents quite compelling. The second dissent by Judge Read focuses more on the legal aspects of constitutional interpretation in New York, which are (I suspect) of less interest to the wider audience of this blog. In the other dissenting opinion (in which Judge Read concurred), however, Judge Smith argued that the GPS device actually did not provide the police with any more information than could be obtained by assigning a police detail to follow Weaver and observe his activities for 65 days. He criticized the majority for seeming to base their opinion on the sophistication of the technology involved as opposed to the places and things which the technology was used to surveil. At one point he quips: “I suspect that the GPS used in this case will seem primitive a quarter of a century from now. Will that mean that police will then be allowed to use it without a warrant?”
This question of technology as discussed by the members of the court touches on an issue that was alluded to at our first DETECTER meeting in Birmingham, but which we were unfortunately unable to discuss in much detail due to time constraints: namely, do new technological developments allow the police and intelligence authorities to expand the scope of surveillance beyond what was possible in the past? I agree with Judge Smith that the GPS device didn’t provide the police with more information than could have been gathered by tailing Weaver’s van for 65-days. In fact, the police detail could have provided much more information since it would have been in a position to observe Weaver’s own actions rather than the position of the van alone (Not to mention that, as it turns out, the van in question was not involved in the commission of the crime of which Weaver had been accused). Yet, the majority also has a point with respect to the virtual “effortlessness” of information-gathering which the GPS device makes possible. In other words, use of the GPS device saved the police from having to attach a surveillance detail to track the van for 65-days around the clock. By sparing the police the costs in terms of “effort” expended, manpower, personnel compensation, the technology makes surveillance “easier” to carry out. On the one hand, this is certainly a good thing if police activities are able to be accomplished more effectively and at lower costs for the public fiscus. On the other hand, didn’t the higher costs associated with traditional surveillance generally act as a deterrent against the use of surveillance where the police had less confidence that the effort would yield any benefit?
Privacy and Punishment
Henry Porter has a blog post at the Guardian where he argues that it is scandalous that Members of Parliament will go unpunished for their abuse of the expenses system while ordinary citizens are punished disproportionately for minor offences. He lists as examples the electronic tagging of a woman in Ellesmere Port for abandoning a kitten for two days (with a £2440 fine thrown in for good measure) and the announcement of a police chief that all acts of littering will be punished with a 24 hour jail sentence.
Porter's piece isn't explicitly about surveillance, but I'm wondering if there's an interesting sort of privacy intrusion that can be identified here beyond that usually discussed.
Just about everyone agrees that punishing someone unjustly is always wrong. And most people agree that intrusive invasions of privacy are at least prima facie wrong (even if they think that some other value outweighs the wrong in the particular instance). Is there something additionally wrong when a person's privacy is invaded and they are then punished for some aspect of their private conduct? Is an invasion of privacy by an agent who might unjustly punish you on the basis of the information they find not only more unjust but actually more invasive?
Porter's piece isn't explicitly about surveillance, but I'm wondering if there's an interesting sort of privacy intrusion that can be identified here beyond that usually discussed.
Just about everyone agrees that punishing someone unjustly is always wrong. And most people agree that intrusive invasions of privacy are at least prima facie wrong (even if they think that some other value outweighs the wrong in the particular instance). Is there something additionally wrong when a person's privacy is invaded and they are then punished for some aspect of their private conduct? Is an invasion of privacy by an agent who might unjustly punish you on the basis of the information they find not only more unjust but actually more invasive?
Tuesday, June 9, 2009
Saving Privacy
An interesting piece in today's Times by Nigel Shadbolt, who is a professor of AI at Southampton University. He argues that advances in technology are eroding privacy at an alarming rate. In response he proposes nine measures.
- The commissioning of a report on privacy similar to Baroness Warnock's on fertilisation and embryology.
- Oblige government and private companies to inform the public in the event of data breaches.
- All government departments controling large databases to appoint a 'privacy officer'.
- Written procedures to manage, monitor and report on the accuracy of the personal data held.
- Regular auditing of government departments to ensure compliance with the Data Protection Act, the results of which would be published.
- Routine open access to government data on schools, health, transport and commerce.
- All Freedom of Information Act requests and results to be made available in web accessible formats.
- Insist on proportionality in cases of surveillance.
- Rule employer use of social networking information as inappropriate.
Monday, June 8, 2009
More Clumsy Disclosures...
Another story of clumsy government disclosure of extremely sensitive data. This time discs were lost of RAF vetting records with details of affairs, debt, drug use, extra marital affairs (complete with names of third parties) and use of prostitutes.
This sort of vetting is very intrusive. We wouldn't accept it as common practice and we consider those who gather the data to owe it to the recruits to not let this sort of thing happen. Indeed, we only would tolerate such questions being asked in part because the individuals vetted freely consent to the process. Interestingly the same BBC programme that uncovered this case also reports one former director of GCHQ's claim that all internet and phone traffic 'must' be recorded to help the fight against terrorism.
It strikes me that much of the sensitive information gathered by this vetting process could also be uncovered by a thorough examination of the record of someone's internet activity. If governments decide to hold records of such sensitive information, do they owe it to the surveilled individuals to keep the information secure?
This sort of vetting is very intrusive. We wouldn't accept it as common practice and we consider those who gather the data to owe it to the recruits to not let this sort of thing happen. Indeed, we only would tolerate such questions being asked in part because the individuals vetted freely consent to the process. Interestingly the same BBC programme that uncovered this case also reports one former director of GCHQ's claim that all internet and phone traffic 'must' be recorded to help the fight against terrorism.
It strikes me that much of the sensitive information gathered by this vetting process could also be uncovered by a thorough examination of the record of someone's internet activity. If governments decide to hold records of such sensitive information, do they owe it to the surveilled individuals to keep the information secure?
Friday, June 5, 2009
Databases and Chill
The Daily Telegraph reports that police are taking the DNA evidence of kids as young as ten, in an attempt to 'dissuade youths from committing offences in the future'. In the words of one officer:
The police officer in question may well be right that the knowledge that one's DNA is on file might well chill criminal behaviour. But might it also chill other sorts of perfectly legitimate behaviour? Particularly if your innocence has not been enough to prevent your DNA from being taken.
"It is part of a long-term crime prevention strategy. If you know you have had your DNA taken and it is on a database then you will think twice about committing burglary for a living."
The police officer in question may well be right that the knowledge that one's DNA is on file might well chill criminal behaviour. But might it also chill other sorts of perfectly legitimate behaviour? Particularly if your innocence has not been enough to prevent your DNA from being taken.
Thursday, June 4, 2009
USB Scanner
From Slashdot: apparently police in the UK are seeking USB devices to scan hard drives for evidence of illegal activity. It's already the case that if your computer is seized then police have the right to thoroughly search your hard drive for any such evidence. So this device would only be cutting down on the number of police man hours needed for such a search.
I wonder, however, if a consequence of such a convenient device for the job might be that such searches were conducted much more often. Does this raise any ethical issues? Is one subject to a privacy intrusion if one's computer hard drive is scanned by computational algorithm, and no resulting scrutiny by a human being takes place?
I wonder, however, if a consequence of such a convenient device for the job might be that such searches were conducted much more often. Does this raise any ethical issues? Is one subject to a privacy intrusion if one's computer hard drive is scanned by computational algorithm, and no resulting scrutiny by a human being takes place?
Monday, June 1, 2009
Journalists' Sources
A journalist, Suzanne Breen, has been taken to court by the Police Service of Northern Ireland who want her to turn over all records of her interactions with Real IRA sources. The judge in the case has said he may order her to hand this material over, depending on how Breen's legal team respond.
Although there are specific reasons for thinking that Breen ought to have the right to keep her sources secret on this occasion - i.e. her own security - I'm interested in the general principle of journalists being allowed to keep their sources secret. What is this institution for? Is it a net benefit? I take it that the argument in favour runs that it is better for more information about terrorists to reach the public domain, and if journalists couldn't conceal their sources they would be severely restricted in how they cover these sorts of stories. Wheras the benefit of police access to journalists' information would be short term only - terrorists just wouldn't talk to journalists.
I'm inclined to think that the principle is a good one, and the only reason I can see for not actually having the principle encoded in law is that this could be exploited by people using it as a cover for involvement in terrorism and serious criminality.
Also, the fact that police are going through the courts may contradict a piece in the Guardian I blogged about a few weeks ago suggesting that journalists would soon be unable to keep sources secret because of the insecurity of digital communications.
Although there are specific reasons for thinking that Breen ought to have the right to keep her sources secret on this occasion - i.e. her own security - I'm interested in the general principle of journalists being allowed to keep their sources secret. What is this institution for? Is it a net benefit? I take it that the argument in favour runs that it is better for more information about terrorists to reach the public domain, and if journalists couldn't conceal their sources they would be severely restricted in how they cover these sorts of stories. Wheras the benefit of police access to journalists' information would be short term only - terrorists just wouldn't talk to journalists.
I'm inclined to think that the principle is a good one, and the only reason I can see for not actually having the principle encoded in law is that this could be exploited by people using it as a cover for involvement in terrorism and serious criminality.
Also, the fact that police are going through the courts may contradict a piece in the Guardian I blogged about a few weeks ago suggesting that journalists would soon be unable to keep sources secret because of the insecurity of digital communications.
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