Tuesday, July 23, 2013

Daniel J. Solove: "Nothing to Hide" (review); Why ordinary people should care about surveillance, both private and government

Author:  Daniel J. Solove

Title: “Nothing to Hide: The False Tradeoff between Privacy and Security
  
Publication: 2011, Yale University Press, ISBN 978-0-300-17231-7, 245 pages, indexed, paper, 4 parts, 21 chapters, indexed. 
  
Amazon link:  
  
Dr. Solove, a law professor at George Washington University, who has authored books covered here on online reputation and privacy, put forth this book two full years before the Edward Snowden incident, but it seems perfectly prescient.

Why should ordinary citizens, or innocuous newbie publishers like me, worry personally about surveillance?  I haven’t done any thing legally “wrong”?  Oh, I’m socially unpopular with some people or powerful interests.  I’m a loudmouth.  What, “me worry?”
  
I think one example could be a false accusation of some kind of crime or something threatening consequences.  If the government, or private plaintiffs, are able to mine ordinarily unrelated metadata about one’s whereabouts and particularly Internet or mobile activity, a legal or physical adversary could sunder one’s reputation and put together a case that in practice cannot be overcome, even if it is wrong.

A core concept is that "metadata gathering" by government and by private interests (particularly commercial advertisers on the Internet) is supposed to be legal and innocuous.  It has long been seen as OK for the government to collect and even release "pen register" data of communications, ever since the days of the telegraph (and even Carrington)  But metadata can show a lot about a person's connections and suggest, possibly misleadingly, a person's future intentions.  Solove gives an example of a person doing Internet searches about ricin or polonium.  It obviously could help the government trace assault weapons accumulation.  What, as Solove suggests, if the researcher is merely a novice novelist aiming at the next "Tom Clancy" or "Stephen King" bestseller about a new kind of horror?  Solove extends the discussion to profiling at airports, and the disruption that can result because of appearances. 

Solove makes a few other startling observations.  One of the most important is that the Fourth Amendment (against unreasonable search and seizure) does not apply to data or objects held by third parties, or to objects that have been abandoned.  Solove gives an anecdote of a murder suspect who was apprehended thirty years after his crime when the police, without proper judicial suprervision, tricked him into returning a mail envelope sealed with saliva for DNA evidence.  Good result, but wrong way.

The lack of application of the 4th Amendment protection in third party situations results in vulnerability to search of online activity (where the notion of possession is so ambiguous) and even in materials left to be repaired, with supposed child pornography on computers or undeveloped film.

Solove provides discussions of the shortcomings of the ECPA (Electronic Communications Privacy Act) and SCA (Stored Communications Act), which become quite convoluted when lawyers try to apply them to email, tweets, blog and social media posts and comments or interactions, and particularly to search arguments, which are embedded in URL’s and which technically may not be protected communications the way the contents of a letter in a lick-sealed envelope is supposed to be, 


Solove provides an interesting perspective on physical surveillance, with cameras in public places.  People typically expect "obscurity" with ordinary commerce in public spaces, even with recreation.  In fact, private picture taking in bars and discos has started to surface as an issue since about 2010 because of concerns about abuse in social media, leading to even more possible surveillance.  
   
Solove notes that in 2005, well after 9/11, requirements of verification driver’s license and id cards were tightened, which should have made underage fraud much harder, but I know that it still happens. 




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