Privacy, information access, and security in a panopticon society donna Bair-Mundy

Privacy, information Privacy, information access, and security in a access, and security in a panopticon societypanopticon society

donna Bair-Mundy

Intercepting topicsIntercepting topics

Surveillance

Security

Privacy

LibrariesLibraries

Discussion questions:

What is privacy?

Why do we need it?

Informational privacy - Westin's definition - part 1

Privacy is the claim of individuals, groups, or institutions to determine for themselveswhen, how, and to what extentinformation about them is communicated to others.

Westin, Alan F. 1970. Privacy and freedom. London: Bodley Head.

Control


Viewed in terms of the relation ofthe individual to social participation, privacy is the voluntary and temporarywithdrawal of a person from the general society through physical or psychological means, either in a state of solitude or, when amonglarger groups, in a condition of anonymity or reserve.

Temporal

Choice

Varied means


The individual's desire for privacy is never absolute, since participation in society is an equally powerful desire.

Ongoing dialectic


Thus each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.

Social norms


The individual [balances the desire for privacy with the desire for disclosure and communication of himself to others] in the face of pressures from the curiosityof others and from the processes of surveillance that every society sets in order to enforce its social norms.

Privacy v. Surveillance

Westin, Alan F. 1970. Privacy and freedom. London: Bodley Head.

Westin's privacy theory: 4 functions of privacy

Personal autonomy

Emotionalrelease

Self-evaluationLimited & protected

communication

Power to define the boundaries of

the “core self”

Release from tensionsof life in society

requires release from pressure of playing

social roles

Need to integrate experiences into

meaningful pattern; essential for creativity

Share confidences and intimacies only with those

one trusts

Individual privacy versus individual secrecy

PrivacyAllowed and in somecases required for

socially-sanctioned acts.Stress reducing.

SecrecyInvolves

socially proscribed acts.Stress inducing.

Margulis, Stephen T. 1977. Conceptions of privacy: current status and next steps. Journal of social issues 33(3):5-21, p. 10. Margulis, Stephen T. 2003. Privacy as a social issue and behavioral concept. Journal of social issues 59(2):243-261.

Us UsUsUs

Election day

UsThem

Privacy an old concern

Halakhah (Jewish law)Proscriptions on:

Physical intrusionVisual surveillanceAural surveillance

TalmudWalls between houses to be a certain heightCreditor may not enter person’s house

Ancient Roman law (Justinian’s Pandects)Prohibition against going into a home and dragging out the person

Hippocratic oathNo disclosure of what in practice seen or heard that “ought never be published abroad”

Types of privacy in lawTypes of privacy in law

Informationalprivacy

Decisionalprivacy

Control of access to information about a person or group of persons

Freedom to make personal decisions without interference from government

Privacy Act of 1974 Roe v. Wade 1973

Gormley, Ken. 1992. One hundred years of privacy. Wisconsin law review Sept/Oct 1992:1335-1441.

American Constitution

• Heavily influenced by natural rights philosophy (John Locke)

• After extensive argument decided to include a Bill of Rights

Bill of Rights debate: Mason, Jefferson, et al.

When assigning powers to the government must also limit those powers

General warrants and writs of assistance

Objections to Bill of Rights

Bill of Rights is stipulation a king gives to his subjects, granting a few exceptions to rights of the monarch

Bill of Rights dangerous—implies government has powers not

Could later be misconstrued as all-inclusive not granted

(Alexander Hamilton, Federalist paper no. 84, etc.)

The compromise

Amendment IX

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

General warrants (1)• No specific individual

• No specific crime

• No specific place to be searched

• No specific items to be sought

• Illegal according to Sir Edward Coke’s Institutes of the Lawes of England (first published 1642 and 1644)

• Illegality confirmed by Sir Matthew Hale

• Illegality confirmed by Sir William Blackstone

General warrants (2)• Suspicion of crime related to

government revenue

• Used against anyone who dared to challenge or limit the authority of Parliament or the crown

• John Wilkes (member of Parliament)

• Anonymously wrote critical essay published in North Briton

• General warrant leads to massive arrests, Wilkes ► Tower of London

Writs of assistance• Any customs official could enter “any

House, shop, Cellar, Warehouse or Room or other Place...”

• Seize unaccustomed goods

• Lasted for the life of the sovereign under which it was issued plus six months

• According to John Adams, major factor in seeking American Independence

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of 1st Amendment gives right to associate without surveillance (Lieber 1859)

Ex parte Jackson

“The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized...” Justice Field 96 U.S. 727, 732

Penumbras of the Amendments

1965Griswold v. Connecticut

381 U.S. 479

"Zone of privacy" created by 1st, 3rd, 4th, 5th, and 9th amendments

Discussion question:

Why do we need surveillance?

Need for surveillance (1)



Need for surveillance (2)Train Depart Arrive

1 2:30 p.m. 6:30 p.m.

2 3:30 p.m. 8:00 p.m.

Beniger, James R. 1986. The control revolution: technological and economic origins of the Information Society. Cambridge, Mass.: Harvard University Press.

Surveillance in a transforming Surveillance in a transforming societysociety

Zuboff, Shoshana. 1988. In the age of the smart machine: the future of work and power. New York: Basic Books.

Roles of Surveillance (1)Roles of Surveillance (1)

Used to catch the criminals

Used as means to control workers

Necessitated by technology

Facilitated by technology

Roles of surveillance (2)Roles of surveillance (2)

Provision of services (Social Security)

Allows participation (Voter registration)

Protection against threat

Means of social control• Discover and rout out deviance• Threat of surveillance used to

promote compliance with the law

Routing out “deviants”Routing out “deviants”

Round-up of Pennsylvania Quakers (1777)

Sedition Act of 1798

Espionage Act of 1917 – 1918 amend.

Internment of persons of Japanese ancestry—WW II

Dealing with dissidentsDealing with dissidents

President Franklin Roosevelt had FBI spy on New Deal opponents

President Johnson had FBI spy on opponents of his Vietnam War policy

President Nixon had FBI, CIA, NSA, IRS, and Army Intelligence spy on and harass his perceived enemies

United States. Congress. Senate. The Select Committee to Study Governmental Operations with Respect to Intelligence Activities. 1976. Final report.

““COINTELPRO New Left”COINTELPRO New Left”

FBI program to “expose, disrupt, and otherwise neutralize” activities groups and individuals affiliated with the “New Left”

Extensive and mostly illegal surveillance


““COINTELPRO New Left”COINTELPRO New Left”Had members arrested on marijuana charges


Sent anonymous letters about a student’s activities to parents, neighbors, and the parents’ employers

Sent anonymous letters about New Left faculty members (signed “A Concerned Alumni” or “A Concerned Taxpayer”) to university officials, legislators, Board of Regents, and the press

Surveillance - Plague modelSurveillance - Plague model

Isolation and observation

Social control

Highly visible

Foucault, Michel. 1995. Discipline and punish: the birth of the prison. New York: Vintage Books.

Surveillance—Panopticon model

• Legal theorist

• Rationalism

• Utilitarianism

• Eccentric

Jeremy Bentham

cells

inspector’s lodge

entry

walkway

Jeremy Bentham’s Panopticon

Panopticon societyPanopticon society

Re-thinking constitutional privacy

1964-U.S. Senate

Long Subcommittee

Hearings on surveillance activities by federal agencies; first looked at IRS

No warrantless wiretapping in No warrantless wiretapping in criminal casescriminal cases

1967Katz v. United States

389 U.S. 347

Congress Acts

1968The Omnibus Crime Control

and Safe Streets Act of 1968 (“Federal Wiretapping Act“), 18 USC Section 2510 et seq.

Wiretapping illegal but when crime has been or is being committed law enforcement can, with a warrant, engage in wiretapping for limited periods. Provides judicial oversight for law enforcement wiretapping.

National security wiretappingNational security wiretapping

1972U.S. v. U.S. District Court

for the Eastern District of Michigan“Keith”

“the customary Fourth Amendment requirement of judicial approval before initiation of a search applies in domestic security cases”

FISA

1978Foreign Intelligence

Surveillance Act

U.S. Code50 USC Sections 1801-1863

Electronic mail

1993ECPA

Electronic Communications

Privacy Act

Addressed the need to protect e-mail.

Post-9/11Post-9/11

USA PATRIOT ActH.R. 3162

Public Law No. 107-56Signed Oct. 26, 2001 by Pres. George W. Bush

H.R. 297510/12/2001

S. 151010/11/2001

H.R. 3004Financial Anti-Terrorism Act

Viet DinhAsst. Attorney General

The USA PATRIOT ActThe USA PATRIOT Act

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism

H.R. 3162

The Acronym


To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.

H.R. 3162

The Purpose


SEC. 218. FOREIGN INTELLIGENCE INFORMATION.

Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'.

The Language

The U.S. CodeThe U.S. CodeSections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'.

TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1804. Applications for court orders

(7) a certification … (B) that the purpose of the surveillance is to obtain foreign intelligence information;

(7) a certification … (B) that a significant purpose of the surveillance is to obtain foreign intelligence information;

Federal Wiretapping ActFederal Wiretapping Act

1968The Omnibus Crime Control

and Safe Streets Act of 1968 (“Federal Wiretapping Act”)

U.S. Code18 USC Section 2510 et seq.

Federal Rules of Criminal ProcedureRule 41 Search and Seizure

FISA

1978Foreign Intelligence

Surveillance Act

U.S. Code50 USC Sections 1801-1863

Investigative powers in US Investigative powers in US CodeCode

1968

Federal Wiretapping

Act

1978

Foreign Intelligence

Surveillance Act


Section 215—Amending FISA 501(a)The Director of the [FBI] or a designee of the Director ... may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

The Complaints— Records vulnerable


Section 215—Amending FISA 501(d)

No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

The Complaints—Freedom of Speech

Privacy in Libraries

On the network news:

Ayman al-Zawahiri

So you do a search . . .

A few days later . . .

How do you feel?

USA PATRIOT Act & Libraries (1)USA PATRIOT Act & Libraries (1)

• June 8, 2004 – FBI demands list from Deming branch of Whatcom Country Library System of everyone who had borrowed a biography of Osama bin Laden since November 2001.

• Library refused.

• 15 days later, FBI withdrew its request.

USA PATRIOT Act & Libraries (1)USA PATRIOT Act & Libraries (1)

• 2005– FBI presents National Security letter and demands “any and all subscriber information, billing information, and access logs of any person or entity” associated with a specified IP address during a specified period

• Librarians fought gag order in court

• Librarians speak out

Library Awareness ProgramLibrary Awareness Program• Begun during Cold War*• Desire to restrict access to unclassified

scientific information by foreign nationals• Desire to recruit librarians to report on

“foreigners”• Agent told librarians to report name and

reading habits of anyone with a foreign sounding name or foreign sounding accent

• Librarians who criticized program were investigated

*Curt Gentry gives onset year as 1962: Gentry, Curt. 1991. J. Edgar Hoover: the man and the secrets. New York: Norton., pp. 759-760.

ALA on ConfidentialityALA on Confidentiality

• The First Amendment’s guarantee of freedom of speech and of the press requires that the corresponding rights to hear what is spoken and read what is written be preserved, free from fear of government intrusion, intimidation, or reprisal.

• In seeking access or in the pursuit of information, confidentiality is the primary means of providing the privacy that will free the individual from fear or intimidation or retaliation.

Browser history

Internet station sign-up sheet

When records are no longer needed, destroy them!

Minimizing browser history (1)

Minimizing browser history (1)

Web Server Log

Web Server StatisticsWho:Countries ... Full list ... Regions ... CitiesHosts ... Full list ... Last visitAuthenticated users ... Full list ... Last visit

Navigation:Visits durationViewedOperating SystemsBrowsersReferrers:Origin ... Referring search engines ... Referring sitesSearch ... Search Keyphrases ... Search Keywords

OPAC report—searches

OPAC Logging Report

DATE TYPE SEARCH STRING LIMIT LIMIT_STRING INDEX HITS9/28/01 Keyword harry potter N K 4068

9/28/01 Author tolkein N LOCA=Main Library B 1

9/28/01 Keyword birds N K 2863

9/28/01 Keyword alligators N LOCA=Main Library K 30

9/28/01 Complex (NKEY alligators) AND N K 0

(TKEY "crocodiles")

9/28/01 Complex (TKEY rats) AND N K 103

(TKEY "mice")

9/28/01 Keyword osama bin laden N K 37

UH Library

Search electronic resources

Log in screen

What can we do? (ALA tips)

•Conduct privacy audits •Identify the type and nature of all records and files that contain library patron and user personally identifiable information•Establish a schedule for the retention of records and files containing library patron and user personally identifiable informationDetail the specific steps staff should follow in responding to investigatory requests for patron and user personally identifiable information from governmental agencies

What can we do? (2)

•Be aware of privacy policies•FBI: http://www.fbi.gov/privacy.htm•Google: http://www.google.com/intl/en/privacypolicy.html

•Anti-spyware software

•Scrub your data

http://www.fbi.gov/privacy.htm

http://www.fbi.gov/privacy.htm

http://www.google.com/intl/en/privacypolicy.html

http://www.google.com/intl/en/privacypolicy.html

Questions ?

Mahalo

Banks and Bowman theoretical Banks and Bowman theoretical modelmodel

Nationalsecurity

Privacy

Crisis

Rights of the individual

Survival of the group

Associate General Counsel for FBI

Banks, William C., and M.E. Bowman. 2000. Executive authority for national security surveillance. American University law review 50(1).

Identifying the Problem: the Identifying the Problem: the Communication interception timelineCommunication interception timeline

1967Katz

1942Goldstein

1942Goldman

1937/1938Nardone

Conviction upheld

Wiretapping evidence disallowed

1928Olmstead

1952On Lee

1961Silverman

W

W

W D R

S E

Communication interception Communication interception timelinetimeline

1967Katz

1942Goldstein

1942Goldman

1937/1938Nardone

Conviction upheld


1928Olmstead

1934Radio Comm.

Act

1952On Lee

1961Silverman

W

W

D R

S E

W

Federal Communications Act

1934

Section 605

No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.

NardoneNardone

“…the plain words of § 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that “no person” shall divulge or publish the message or its substance to “any person.” To recite the contents of the message in testimony before a court is to divulge the message. The conclusion that the act forbids such testimony seems to us unshaken by the government’s arguments.” Justice Roberts

Communication interception Communication interception timelinetimeline

1967Katz

1942Goldstein

1942Goldman

1937/1938Nardone

Conviction upheld


1928Olmstead

1934Radio Comm.

Act

1952On Lee

1961Silverman

W

W

D R

S E

W

Onset of wiretapping

1880sFirst reports

of wiretaps in press

1870sTelephoneinvented

1860sWiretapping

duringCivil War

1830sTelegraphinvented

Packet sniffers

1960sPacket

switching

Olmstead v. United States (1928)

The evidence in the records discloses a conspiracy of amazing magnitude… . It involved the employment of not less than fifty persons, of two seagoing vessels for the transportation of liquor to British Columbia, of smaller vessels for coastwise transportation to the State of Washington. … In a bad month sales amounted to $176,000; the aggregate for a year must have exceeded two millions of dollars.

Mr. Chief Justice Taft

Magna Carta 1215 cap. 39

Nullus liber homo capiatur vel

imprisonetur, aut disseisiatur,

aut utlagetur, aut exuletur, aut

aliquo modo destruatur, nec

super eum ibimus, nec super

eum mittemus, nisi per legale

judicium parium suorum vel

per legem terrae.

Magna

Carta

Magna Carta 1215 cap. 39

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

Magna Carta

Reinterpreting the Magna Carta

Magna Carta1215

25 Edward III, c. 41351/1352

28 Edward III1354

No free man . . .

None . . .

No man of what estate or condicion that he be …


Sir Edward Coke1642

“…for Justices of Peace to make warrants upon surmises, for breaking the houses of any subjects to search for felons, or stoln [sic] goods, is against Magna Carta.”

Coke, Edward. 1642. The fourth part of the institutes of the laws of England. London: M. Flesher.


William Pitt1763

“The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.”

ECPA§ 2511. Interception and disclosure of wire, oral, or electronic communications prohibited

§ 2701. Unlawful access to stored communications

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html

ECPA§ 2701. Unlawful access to stored communications

(a) Offense.— Except as provided in subsection (c) of this section whoever— (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

ECPA

(c) Exceptions.— Subsection (a) of this section does not apply with respect to conduct authorized— (1) by the person or entity providing a wire or electronic communications service; (2) by a user of that service with respect to a communication of or intended for that user; or (3) in section 2703, 2704 or 2518 of this title.




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Privacy, information access, and security in a panopticon society donna Bair-Mundy