Privacy in the Information Age

1 March

• Handout 1: wiretapping quick reference guide
• US v. Garcua 7^th Cir (Posner) says that GPS could possibly raise a 4A question; not in this case, but mass surveillance might. (Following Knotts)
• And now Sveum: again following Knotts and Karo, but complaining to the legislature that this might be a problem.
• Commonwealth v. Connolly: property rights and attaching surveillance. The seizure isn't the technology but the use of private property by the police to obtain information for their own purposes.
• United States v. Ortega-Estrada: because "general area" isn't necessarily inside the house, GPS wasn't a search.
• So for now, it looks like GPS is like a beeper, as far as search law goes.
• So, airlines.
  You lose some expectation of privacy when you walk into an airport. And tort cases against the government for overzealous searching tend not to go far. So there's really no expectation of privacy for run-of-the-mill searches in airports.

  But what about the means used to identify people for screening (CAPPS and pre-screening were in place prior to 9/11). Then in 2003, they tried to do CAPPS II, which involved the acquisition of data from private providers (e.g., JetBlue).

  Now we've got Secure Flight: trying to standardize/normalize pre-flight security data.

  Any data that the government gathers about you, you're entitled to see and correct, and disclosure is prohibited except in certain cases. That's the Privacy Act.

  So can TSA farm out the data collection to private contractors? There's also the Computer Data Matching Protection Act: protecting against massive information synthesis (matching government records with non-government records, or even use of government records for purposes other than what they were collected for).

  It's not clear how these acts constrain what TSA can do.

  Plus, of course, this only defends against intentional (and well-intentioned) acts. Accidents or malice can leak info, obviously.

  Anyway, is SecureFlight any worse than all the other searching that gets done?

• US v. US District Court
  This is the "White Panthers" case. "Pun" Plamondon was the boss. This was essentially an international terrorism case, but it was conducted on US soil.

  By the way: a US citizen doesn't have 4A protections of the home, if the home is abroad. And phone surveillance isn't overly intrusive either. That's a more modern case, though.

  For now, we can just note that there's a need to balance national security and privacy.

• ECPA
  • Title I: Old Title III (wiretaps: incl. bugs)
  • Title II: SCA (Stored Communiations Act) § 2703(d)
  • Title III: Pen Registers
• Birkman (sp?) center for study of internet and society: they've got some good stuff on privacy. Nice hypotheticals about certain types of searches.
• Bartnicki v. Vopper
  This is a 1A case, partly (wiretapping too), but it leads us to some of the associational/organizational privacy issues we'll be talking about later.

  Basically, though, the media can do what it wants as long as someone else is breaking the law, and it's a matter of public concern.

  Does this have a chilling effect on speech? Perhaps not, but maybe it does create a moral hazard for the media.

  Anyway, at the end of the day, all the language about chilling effects gives way to the 1A interest in the free press. But what's a "public concern?" That standard sure is broad.