Topic Tuesday #25 2013/01/08 - "The Right To Privacy"
In the last quarter of 2012 web browser vendors took on the topic of "DNT" (Do Not Track) as a feature to be added in their various browsers. What is DNT? You may have heard to empty your cookies now and then and delete your cache. That is where tracking lives (for the most part). Cookies are used as a kind of passport from one website (or within a websites various pages). They carry authentication tokens, information about your browser, your computer, you, how long the credential is valid for, and permissions therein. There are "Third Party" cookies that are generated typically from advertising vendors for various web pages and they can quite literally follow you around the internet. Ever notice the ads being targeted to you? Like you just bought something on one site and a completely different site then tries to sell you a competing or complimentary item? I bet you have but you may not have connected the dots. These can all be equated to being stamps in your passport and when handing it to the next "agent", they get to see where you've been and add their own "stamp".
Where am I going with this? Simple, do we not have the right to be left alone? The DNT engineering specifications provide for meta data to be added to browser queries to "opt out" of being tracked. Sounds great, then they won't be spying on me all the time. There are a few catches to this. 1) The DNT Spec indicated it should be off by default. 2) Websites are under no mandate to comply, rendering it exceptionally weak. 3) Microsoft decided to break the spec by turning it on by default in the latest IE versions, causing a big stir. 4) Vendors have varying levels, from obnoxious to that wasn't too bad, of ease to enable the DNT header, continuing to make it obtuse to user adoption.
Number three is the big game changer here. Microsoft is in the consumers court on this one. The rest of the industry (the other 46% of the browser market) and the Apache Software Foundation (provider of back end web hosting software) are not happy with Microsoft's choice in the matter. There are a few reasons. Apache is mad because it breaks the specification, so they are retaliating by having their servers ignore the request from IE clients. Other providers, like Chrome, Firefox, Safari, and Opera, have decided to implement the spec and are capable of it, but turned off by default. Why are we being tracked at all? Money. Money. Money. Oh and some data metrics too - that leads to more money. Did you ever consider how the web works? It works predominately on advertising revenue. Google, the ginormous search engine company, is primarily an advertising company. That is where their revenue comes from. Why do they give so many services away? Because those services make you see more ads. The companies that provide ads want to know their money is being well spent, so they demand metrics. Perfectly reasonable. Those metrics are collected by tracking cookies. There is an old adage, "if you're getting something for free, you're likely the product being sold". They give you the service in exchange for your participation in giving them information about your spending habits, browsing habits and sometimes, habits in general.
Recently there was even a researcher that used the vast data stores (known by the buzz words "Big Data") was able to correlate drug interactions between two popular drugs, a cholesterol medication and an antidepressant. The two interacted to bring on diabetes if left unchecked, and this interaction would not have been so easily found if it had not been for the aggregated (anonymized) big data from search engines.
So what we have here is a conundrum of what is ours. When does our search become the property of a search engine? What will they do with that information once they have it? Can "the Feds" come in and take it all and use it against you? What is a reasonable expectation of privacy?
This is where it gets complicated. The Fourth Amendment is our guarantor of privacy, as long as you expand it to it's reasonable extents: "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." You are protected by the Fourth Amendment when people have "a reasonable expectation of privacy in a particular situation". The litmus test for this has been the following statement for the last century or so: "there is a reasonable expectation of privacy only if there is a reasonable expectation that certain information may be kept secret.". Over the last 50 years or so, lawyers have taken to this expectation if you can swap "privacy" with "secret" in a sentence or paragraph and not have the meaning changed.
Is secrecy still a prerequisite for privacy? In out modern times it's debatable...
For clarification purposes, the dictionary definitions are as follows:
Secret: a: kept from knowledge or view b: marked by the habit of discretion c: working with hidden aims or methods d: not acknowledged e: conducted in secret
Private: a: intended for or restricted to the use of a particular person, group, or class b: belonging to or concerning an individual person, company, or interest c(1): restricted to the individual or arising independently of others c(2): carried on by the individual independently of the usual institutions d: not general in effect
Of these definition, A seems to suit out needs well enough in both cases.
For example: A social security number is not a secret as many people have access to that information. A social security number is private and is only shared with a restricted set of people or companies that have authorization to have that information.
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| Justice Louis Brandeis |
The world is ever changing and the law is struggling to keep up. Thanks to many of our forward thinking supreme court justices through the years, we have been able to keep a decent pace with privacy concerns. Justice Louis Brandeis, in his dissenting opinion on Olmstead v. United States (1928) attempted to make privacy concerns kin to constitutional law. I'll leave you with this infamous sentiment from that opinion and a few more quotes:
"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men." - Justice Louis Brandeis in Olmstead v. US, 1928.
"Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. . . . The Third Amendment, in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'" - United States Supreme Court in Griswold v. Connecticut, 1965.
"As the Court's opinion states, 'the Fourth Amendment protects people, not places.' The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a 'place.' My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" - Justice John Marshall Harlan, on Katz v. United States, 1967.
"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." - United States Supreme Court in Roe v. Wade, 1973.
What do you consider private?
