The Electronic Frontier Foundation blog posted on Friday that “businesses can challenge warrantless records collection, even if you can’t,” in reference to a recent 9th circuit court decision in Patel v. Los Angeles. You can read their summary and analysis of it here; the gist is that Los Angeles passed an ordinance requiring all hotels to turn over detailed guest information to the police upon request, no warrant required. Patel, a hotelier, sued for violation of 4th amendment rights, and won.
EFF points out that since the decision protects a company’s right to privacy, we should ask corporations – like the telecoms – to go after NSA spy programs in court. They seem to take it as definitive that “people [cannot] reasonably expect that records about their telephone and Internet activity can remain private when those records belong to someone else: the service providers.”
And yes, granted, that’s SCOTUS precedent from Smith v Maryland, which allowed police to obtain phone records (of numbers dialed) without warrants. It’s a B.S. ruling to begin with, but I have particular issues with extending it to apply to the 21st century, as courts are largely doing.
See, today, the “service providers” are our Internet Service Providers, our cell phone companies, our email hosts. We rely on them for basically all of our private correspondence, much of our shopping and banking activity, in addition to all of the new functions (social networking, etc) created in the Internet age and now considered essential by many of us. They own all information that passes through their hands, which is also B.S., and as far as I can tell is only so because the Internet evolved so quickly that there was no one to stop them from establishing that as a basic part of user agreements.
But I digress. My point is, fine, we agreed to hand over our information to the telecoms and ISPs. But that does not mean we relinquish all privacy rights related to that information, which is also my beef with Smith v Maryland. The entire foundation of privacy is that each of us has control over our personal information, and we pick and choose who to share that information with. The idea that once shared with anyone, we give up that control completely, is absurd.
We’re a trusting species. We don’t expect the companies we patronize to expose our information. We believed Google when it said it would never use our information for evil. We trusted Facebook even after it changed its privacy policies a hundred times. We believe that companies and governments won’t use our information in ways any reasonable person (not a term of art here) would expect. We’re naïve.
We certainly did not intend to give up all of our rights by entering into interactions with these companies.
On that note, I was happy to read the following in the President’s Review Group on Intelligence and Communications Technologies’ recent report on the NSA surveillance programs:
“In modern society, individuals, for practical reasons, have to use banks, credit cards, email, telephones, the Internet, medical services, and the like. Their decision to reveal otherwise private information to such third parties does not reflect a lack of concern for the privacy of the information, but a necessary accommodation to the realities of modern life. What they want – and reasonably expect – is both the ability to use such services and the right to maintain their privacy when they do so. As a matter of sound public policy in a free society, there is no reason why that should not be possible.”
DUH. THANK YOU. This is not complicated stuff. It’s just the legal mumbo-jumbo and convolutions that have interfered with common sense.
By the way, I really recommend reading that report. It’s fun – and heartening – stuff!