The United States Foreign Intelligence Surveillance Court in Washington, D.C. in a top secret court order ordered Verizon to produce to the National Security Agency (NSA) “all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Since we’re Verizon users, this order means that the NSA knows who we called, where we called them from, and for how long. The NSA even knows that we’ve talked to each other. The NSA’s actions seriously infringe First Amendment rights. It chills freedom of speech, perhaps dissuading someone from calling a whistleblower hotline, since such calls will no longer be anonymous. It chills freedom of association. If a person makes a call to participate in a group at a church, mosque, or synagogue—or calls the Tea Party or the ACLU for information—that association might improperly be used against him. The NSA action also violates the Fourth Amendment since it is an unreasonable search. People’s phone records are being collected with absolutely no suspicion that they’ve committed a crime. The government argues that the search does not violate Fourth Amendment protections because phone records do not contain substantive content. But such an argument is not consistent with modern Fourth Amendment jurisprudence. Just last year, the Supreme Court decided in U.S. v. Jones that the collection of location information implicates the Fourth Amendment. Justice Sotomayor said location information “generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” If you know where we’ve made our calls from, you would know whether we were meeting with a competitor to our current employer, attending an Occupy rally, going to an AIDS clinic or abortion clinic, or other very private information. Who we’ve called is likewise sensitive and private. Even the rights-invading Patriot Act does not appear to allow such a sweeping invasion of citizens’ rights. Under 50 U.S.C. § 1861(b)(2) of the Act, the information sought must be “relevant to an authorized investigation.” This sweeping surveillance is not an investigation, but rather a fishing expedition. Today, the ACLU filed suit to challenge the NSA’s actions on Constitutional grounds. Turns out, the ACLU uses Verizon, too. You can read the complaint here. Senators Ron Wyden (D-Oregon) and Mark Udal (D-Colorado) have also spoken out against the government’s use of the Patriot Act. Both senators have served on the intelligence committee and were briefed on the NSA’s activities. Wyden has said “I believe that when more of my colleagues and the American public come to understand how the Patriot Act has actually been interpreted in secret, they will insist on significant reforms.” Add Comment Facebook and other social networks are transforming huge swaths of our lives—how we work, shop, and stay in touch with the people we love. They are also changing the political process itself. When John F. Kennedy and Richard Nixon debated on television, concerns were raised that politics would deteriorate into a contest where the most telegenic candidate won. But TV debates took place out in the open—anyone could tune in. And the Federal Communications Commission adopted regulations so that opposing candidates were granted equal time to present their views. With social networks, it’s not the most telegenic candidate who wins, but the one with the best data crunchers. Barack Obama was swept into office largely because of his presence on the Web. His social network campaign was managed by one of the founders of Facebook, twenty-four-year-old Chris Hughes, who took a leave from the company to propel Obama into office. Are you in control of your digital self? ABA Journal web producer Lee Rawles talks with Lori Andrews, author of I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy about the lack of online privacy rights and the need for a social media constitution. They discuss the changes that social networks have brought to all areas of the law, including evidence gathering; what evidence is admissible in courts; how social media can affect the right to a fair trial; and the right to control one’s image. Andrews touches on how secret data aggregation about your online activities can affect the price of your health insurance, the advertisements you see, what jobs you qualify for and the limits on your credit card balance.  Photo Credit: Octavio Martinez & Silicon Valley De-Bug Originally Published at SiliconValley De-Bug. While you’re happily playing the latest online game, sending texts, tweeting, posting content or doing Google searches, your digital data is being recorded, aggregated, marketed and sold without your knowledge or permission and its created an online profile that could seriously mess with your future. Illinois Institute of Technology Law Professor Lori Andrews says colleges and employers routinely reject applicants after checking them out on the social networks. Her new book is called, “I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy.” Fifty percent of the employers she polled say they won’t hire applicants with an online photo showing them holding an alcoholic beverage, or what looks like one. How do they know? They look online or hire firms like Sterling Infosystems, Inc. to perform “social media background checks”. Andrews says courts, high schools, police departments and credit card companies now take information from social networks and use it as evidence in legal proceedings, school suspensions, criminal cases and credit reviews. Big Brother is Watching You Every week the New York Times reports more unauthorized data mining. They’ve reported that developers can take photos from Apple mobile and Google Android devices and app developers can take your smartphones’ address book at will. Even if you actually read the fine print of online user agreements and allow your data to be accessed, it’s often not clear how it will be used and archived. Last month your tweets were sold. Twitter announced a deal that allows the analytics firm Datasift to sell the last two years’ worth of posted public tweets. Google saves and employs your search histories and, whether you’ve tagged them or not, posted photos associated with your name are added to the virtual dossier created by the data aggregators who collect your internet inputs and sell them to the advertisers who target you online. The Death of Privacy Laws Andrews says with respect to every other technology courts have not hesitated to apply Constitutional principles to protect users’ rights, but courts have allowed social networks, data aggregators and third parties using social network information to ignore the privacy rights of individuals. She says the constitutional privacy protections we enjoy offline don’t apply online. Too Big to F*ck With The digital data aggregation/advertising industry is huge and largely unseen by users. Take FB as an example; if it was a country, its 850 million members would make it the largest in the world. Because it’s not a publicly traded company, FB isn’t required to publically report its earnings but estimators say FB earned over $4 billion in 2011, with most earned from the sale of targeted ads. Meanwhile, Google pulled in 37.9 billion last year, most from advertisers. Both have Washington DC lobbyists and political action committees to better influence lawmakers and political candidates to let them do their thing. Take Action “The right to privacy has been an abiding principle in the United States, protected by the U.S. Constitution”, says Andrews. “But as social institutions use social networks to invade privacy, new legal mechanisms may be needed to revitalize the fundamental privacy right.” Andrews is calling for a Social Network Constitution to protect us online the way the U.S. Constitution protects us offline. Until legislators take that up, here’s what you can do: 1. Knowledge is power. Apps and online amusements aren’t free. They’re the gateway for commercial interests to gather your data. Your posts, texts, web searches, and smartphone’s content aren’t private. When you’re offered a new application or visit a new social networking site, beware. They likely won’t disclose the personal information they’re taking from you, how they’re going to use it or who they’re selling it to. 2. Beware: Don’t disclose anything online that you wouldn’t want anyone to know about. 3. Limit the apps you download and the new social networks you join. New providers may make it easy, quick, fun and free to do something or to post photos, videos and other materials online but they don’t disclose where they get the money to do this for you, what they’re doing with your digital data and who else will be able to access and aggregate it. 4. Privacy Settings: Check the privacy settings and preferences of every program you use and site you visit. Choose the tightest settings, knowing that your data may still be collected without your permission. 5. Be Alert: Don’t allow people to photograph you drinking or doing anything else you don’t want a future employer, college admissions officer, school official, credit bureau or law enforcer to see. If possible prevent your photographs and likenesses from being tagged as associated with you. 6. Use your voice: Share this article. Complain to your lawmakers. Talk to your families, teachers, friends and co-workers about this. Boycott the advertisers you see hitting you up on the sites you visit. Don’t double click their ads, they treat them like yes votes and you’ll see more of them. 7. Learn more and Visit: http://epic.org/ ; www.socialnetworkconstitution.com; and https://www.eff.org/wp/know-your-rights. Diane Solomon produces and hosts a weekly public affairs program on Radio KKUP, 91.5 fm, and works as a freelance journalist writing for Atom Magazine, Content Magazine, De-Bug, and Metro, Silicon Valley's weekly newspaper. She's a full time Silicon Valley wage slave, a Willow Glen Neighborhoodie and a big time San Jose Bike Partier. Today is the 101st anniversary of International Women’s Day and women are facing a new threat to their rights—and sometimes even to their lives. The vast array of information available about us on the Web is leading to new forms of harassment and discrimination against women. In a chilling revelation, a woman writes about a man who raped her years ago and was never brought to justice. She moved to another state and yet her rapist was able to find her and torment her. She speculates that he was able to find her on a website called Spokeo. The website, she said, provided “incredibly detailed” information about her and about her apartment where her rapist tracked her down. “It listed everything from the types of pets I had to my profession, and included a street-view map showing our building.” Spokeo and other data aggregators collect personal online and offline information about individuals without their consent and sell that information. Other institutions—from employers to courts—use information from social networks and other websites against women. One third of employers say they’ve rejected job candidates because of a photo where they had a drink in their hand on a social network page or wore provocative clothing. But who does that apply to? Women. Women have also lost custody of children, not because they’ve done anything wrong as a mom, but because they have posted something sexy on their boyfriend’s MySpace page. And when a male rival wanted to intimidate a woman, he posted a Google map of her house with a message that she had a rape fantasy and men should come and rape her. The tactic of using sexual messages to put someone into harm’s way is standard on social networks and could be thought of as a new form of sexual harassment. A study by University of Maryland researchers found that users in a chat room with a female user name received twenty-five times more harassing private messages than users with a male name. Rather than being cornered and beat up in a dark alley, women now need to be concerned about being ganged up upon on the Web. In my new book, I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy, I call for a right to privacy on the Web and penalties for sexual harassment and discrimination on the Web. It’s time that offline rights apply online as well.  Credit: Web Ranking Images. Social networks are transforming how relationships begin and end. One in five relationships now starts on social networks. But social networks also contribute to breakups and divorce. Instead of catching a whiff of another woman’s perfume on your husband’s shirt, you might instead find an X-rated photo that your husband accidentally tweeted to a woman in public mode rather than private mode. Or—as happened in a Connecticut case—your husband and his girlfriend might be sending each other Facebook gifts such as “Love Birds” and posting about the need for discretion. (Husband: “[n]o more Facebook. . . to public for me.” Girlfriend: “LOL o.k. under the radar . . . flying low. . . ”) Social network information can be a smoking gun when people divorce. In an American Academy of Matrimonial Lawyers poll, 81 percent of divorce attorneys mentioned an increase in the use of social networking evidence over the past five years. Most of that evidence was found on Facebook (66 percent) or Myspace (15 percent). Posts or photos indicating that one spouse cheated or has dangerous habits can help the other spouse receive more money in the split or gain sole custody of the kids. Divorce lawyer Linda Lea M. Viken recounted a custody battle where a father posted on his Facebook page that he was “single with no children looking for a fun time.” Divorce lawyer Kenneth Altshuler said, “Facebook has made it very easy to show lack of credibility and that is what can win a case. Once you catch them in one lie, nothing else they say is credible to the judge.” The only way to guarantee that your posts won’t come back to haunt you in a custody case would be never to have had a social network page or to act like a Stepford parent and post only positive and glowing things about your every moment with your child. (Perhaps even doing that would backfire since it could be used to show that you are too enmeshed in your child’s life and won’t give your child enough space to grow.) Erasing a page you’ve previously created or deleting your social network presence entirely won’t help. Projects such as the Wayback Machine have probably captured screenshots of that page in its earlier incarnation. Since parenthood is rewarding, demanding, and frustrating all at the same time, people may unthinkingly blurt out their frustrations in social media. What if you once tweeted that you didn’t want children? Should that statement be used to terminate your parental rights? In In re T.T., a Texas case, the court allowed such a statement from a dad’s Myspace profile to be used against him. What if you failed to mention kids on your Match.com profile? Would that show you were a bad mom? How about if you said, “I love my motorcycle” or “I love my iMac” but didn’t mention your children? Would that indicate that your kids played second fiddle to your possessions? My personal view is that any social network statements about the child should be kept out of the case unless they indicate that the parent is likely to harm the child emotionally or physically. And a lack of statements about the child (or even a statement that one doesn’t have children) shouldn’t be used as a way to show parental unfitness.  Murder. Mayhem. Betrayal. Sounds like your typical thriller, right? But it’s just an average day on a social network. As both cops and criminals turn to social networks to do their jobs, the real life incidents provide potential plotlines for thriller writers. Already, writers Harlan Coben (Caught), Jeffrey Deaver (The Broken Window), and Scott Turow (Innocent) have woven internet issues into their thrillers. In my latest non-fiction book, I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy, I talk about scores of real criminal cases involving social networks that could provide inspiration for thriller writers.
Facebook posts can provide the motivation for a murder—such as the 34-year-old British man who hacked his estranged wife to death after she changed her Facebook status to “single.” Posts can also provide ways to uncover crimes. The IRS searches social network sites for evidence of taxable transactions and the whereabouts of tax evaders, while Homeland Security searches certain people’s emails for 350 red flag terms, including the phrase “social media” itself. Posts can be used to intimidate witnesses—such as when a killer’s girlfriend posted, JUST REMEMBER SNITCHES GET STITCHES!! Virtually every aspect of crime and punishment can include a social network twist.  U.S. Supreme Court. Credit: Mike Renlund. As technology makes surveillance easier and cheaper, courts are grappling with how to apply the Fourth Amendment in the digital age. Prior to beepers, GPS, people checking in on Foursquare, and social networks, law enforcement monitoring of suspected offenders was limited by the constraints of manpower, budget and the risk that the officers following suspects might themselves be seen.
But now an increasing amount of information about people’s whereabouts, activities, purchases and intentions can be gleaned digitally, without an officer ever leaving the station. The U.S. Supreme Court’s decision this month in United States v. Jones provides little guidance about which activities might be considered searches, which require warrants, and which voluntary disclosures to third parties might waive Fourth Amendment rights. A furious battle is taking place in Congress about the future of the Internet. Lawmakers are trying to figure out what rules should govern the Wild West of the Web—with issues ranging from cyberbullying to police access to private social network pages. Like many aspects of our lives, though, the battle has now gone viral, with Wikipedia shutting down most of its English site for 24 hours in protest against the proposed Stop Online Piracy Act (SOPA).
The reach of SOPA is broad and the penalties drastic. Let’s say I post a home video of my family on YouTube and there is a Velvet Elvis on the living room wall behind me. Under SOPA, since the Elvis image is copyrighted, the U.S. Attorney General could step in and shut down all of YouTube because of my transgression. The AG could force all search engines to pretend YouTube never existed and not link to it. And I might even go to prison for five years, if I’ve shot ten home videos in the room in front of the Velvet Elvis or if, in my videos, my CD player was playing my favorite songs. | Sign up for Lori's newsletter.
Lori AndrewsLori is a law professor and the author of I KNOW WHO YOU ARE AND I SAW WHAT YOU DID: SOCIAL NETWORKS AND THE DEATH OF PRIVACY. ArchivesNovember 2012 CategoriesAll |
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