What's public?

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First, we found out that the NSA has been performing wiretapping without the benefit of a warrant, and now it turns out that the FBI and DOE have been doing radiation monitoring of a bunch of private sites1 (without any positive results, it turns out):
In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program. Some participants were threatened with loss of their jobs when they questioned the legality of the operation, according to these accounts. advertisement

Federal officials familiar with the program maintain that warrants are unneeded for the kind of radiation sampling the operation entails, but some legal scholars disagree. News of the program comes in the wake of revelations last week that, after 9/11, the Bush White House approved electronic surveillance of U.S. targets by the National Security Agency without court orders. These and other developments suggest that the federal government's domestic spying programs since 9/11 have been far broader than previously thought.

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Cole points to a 2001 Supreme Court decision, U.S. vs. Kyllo, which looked at police use -- without a search warrant -- of thermal imaging technology to search for marijuana-growing lamps in a home. The court, in a ruling written by Justice Antonin Scalia, ruled that authorities did in fact need a warrant -- that the heat sensors violated the Fourth Amendment's clause against unreasonable search and seizure. But officials familiar with the FBI/NEST program say the radiation sensors are different and are only sampling the surrounding air. "This kind of program only detects particles in the air, it's non directional," says one knowledgeable official. "It's not a whole lot different from smelling marijuana."

If this distinction seems pretty artificial to you, you're not the only one. Indeed, this rationale would imply that it was OK to monitor people's cell phone communications--even those purely between US citizens and inside the US--without a warrant as long as you were using an omnidirectional antenna But we've clearly decided as a society that this isn't OK.

Whenever we run into cases like this, the question I get interested in is how to build some kind of system that will guide you in deciding hard cases like this, so you don't have to make them on a purely ad hoc basis. Operationally, what seems to happen is that we try on a bunch of such theories to see which ones produce some consistent set of results we can live with.

Clearly, any theory which produces the result that we're going to allow anything which you can monitor from public property isn't acceptable, and it's going to get even less acceptable as surveillance technology gets better. Already, we've been forced to restrict many such types of monitoring (cell phone communications, infrared surveillance), and attack is badly outrunning defense (think Van Eck Phreaking)

The framework we seem to be heading toward in Kyllo is one of "reasonable expectation of privacy". That sounds good in theory, but it strikes me as rather subjective and problematic. Consider that people have been telling you for years that Internet communications are inherently non-private. So, how do you have a reasonable expectation of privacy for e-mail or VoIP calls (For simplicity consider the situation in which it's a pure IP call, because people do expect privacy over the PSTN, and if you call someone you might not know that they're on a VoIP phone). And what of the situation of wireless networks, which are clearly highly insecure.

I don't really have a good answer here, unfortunately. Like many ethical questions, this seems like a case where people's intuitions about what's appropriate aren't easily systematized. That doesn't mean those intuitions are wrong, of course, but it probably does mean that we should be cautious about how confident we are of them. And, worse yet, this kind of uncertainty makes it very hard to predict in advance what will and will not considered acceptable by the legislatures and the courts.

1. And isn't the timing amazingly coincidental? It seems to me that there are three major possibilities:

  1. The wiretapping story prompted someone to leak.
  2. US News has been sitting on this story and this prompted them to publish it.
  3. it's a total coincidence.

(3) seems the most unlikely of these. I can't decide whether (1) or (2) is the most interesting, but both imply that there's may be more revelations coming sooner rather than later.

5 Comments

If I recall (and understood) Kyllo correctly, one of the important arguments for requiring a warrant before infrared-scanning a home was that infrared scans can potentially reveal a great deal of detailed information about what's going on inside the home--how many people are there, where they were, and even what they're doing. That's very different from merely detecting abnormal radioactivity levels.

As for what to do when the pure laser light of logic fails to produce a mathematically sound public policy--well, there's always democracy....

Dan,

I have no real opinion on whether this is permitted by Kyllo or not. so I don't really intend to engage with you on that one.

Your democracy point, however, strikes me as misplaced. There are two separate, though, related, questions. (1) How one should determine for oneself what one believes the right policy should be and (2) How we should as a society integrate people's individual answers to question (1). Democracy is a fine answer for (2), though not the only one, but it's an essentially useless one for (1). Moreover, even if we were to take the basic societal decisions democratically, it's unlikely that those would fully specify all the answers, which would then have to be made by officials and judges (subject, of course, to democratic correction). If you want those decisions to be fairly predictable, then it's desirable for the rules to emobdy not just a set of restrictions but also enough philosophy that you have a chance of independently correctly re-applying them to a new situation.

Fair enough--I certainly don't want to tell you how to decide for yourself what you'd like the government's policy on searches to be. One of the nice things about believing in democracy as an answer to (2), though, is that it frees me to use whatever approach I please to answer (1)--including rank selfishness, gut intuition, or even random caprice--since I know that others are not obligated to be any more rigorous in their choices.

I'm uncomfortable with the line of reasoning being used by the courts, which is basically that if there is a social expectation of privacy in a situation, a warrant is needed to cross that line. This runs into problems as new technologies are created which allow potential invasions of privacy. We either have to outlaw technology to preserve the status quo, or allow it to be used privately but not by law enforcement until the expectation of privacy is so eroded that it is now OK for the government to use it. The first requires far-reaching regulation and the second is IMO illogical.

We see this in the example you used of cell phones. You say that we as a society decided that monitoring them is not OK. But to do so we have had to write invasive regulations to require scanner manufacturers to block certain bands. Maybe some new kind of technology could be invented (Gnu radio?) but if it had the side effect of receiving those frequencies we would have to design-in blocks. And knowledgeable people can bypass those restrictions. We really only have the illusion of privacy while paying costs to limit technology.

It would seem more logical to me to allow people to receive any frequencies they want, but to encourage the use of encryption to protect the privacy of cell phone traffic. At one time this might have been prohibitively expensive but probably it would be perfectly fine today. It is a much cleaner solution and doesn't try to parse an unspoken social convention about expectations of privacy.

Or consider your infrared through-the-wall viewer. Are these things legal for private parties? What if I build one? Or what if I come up with some other technology that happens to let people see through walls? Now we have to outlaw that, or build complicated limitations into the technology, all to preserve this expectation of privacy.

The truth is that technology changes what privacy we can reasonably expect. Attempting to maintain the status quo with regard to private information in the face of technological change is an expensive and I would argue ultimately doomed strategy. Do you really think that nobody can listen to your cell phone calls, except for police with a warrant? If we allow people to hold these false beliefs, they may be harmed by the exposure of information they thought was private. If we inform them that equipment exists to listen in on those calls, then what - we've destroyed their expectation of privacy! So now suddenly it is OK for everyone to listen in? This line of logic is completely bogus. It is an attempt to deny the nature of reality and to pretend that the world is different than it is.

I would recommend an approach where we accept reality, and that means accepting the use of technology even when it has negative implications for privacy. At the same time we should accept technology that has positive implications for privacy even when that makes law enforcement's job harder. In other words let us build a reality-based policy and let the privacy chips fall where they may. Conforming policy to reality is going to be the least expensive path in the long run, and ultimately we are going to be forced to do it anyway.

I think Hal may be on to something here. What I would find reasonable is (a) that law enforcement couldn't use active (radiation emitting) surveillance without a warrant and (b) they could use passive surveillance without a warrant but scramblers/jammers are legal.

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