Tuesday, April 26, 2016

Us vs the Europeans

The European Union definition of personal information and of privacy is so much more restrictive than ours that it should come as no surprise that the Europeans are not as interested in using massive data suction tools to find terrorists as this government is.

I wish I could say that any of the presidential candidates understood the issues around privacy, in particular digital privacy, but I'm afraid we are going to have to leave that to the Supreme Court.

The FBI director says he was greatly misunderstood, that he's simply interested in being able to read "clear text."  Meanwhile, we learn that there was nothing of interest on the work phone in San Bernardino that caused the FBI to take Apple to court to break the device's encryption and to create software most of us in the business call a "back door."  The FBI however is still hopeful that they might be able to figure out what the terrorists did in time not yet accounted for by checking out their GPS data.  (If they were smart enough to use burner phones, they would have been smart enough to turn off "Location Services," thus turn off GPS.)

I am looking for a leader, perhaps a former government official, to become the clear spokesperson for privacy and in particular for digital privacy.  I don't think that Tim Cook can do this and run his business at the same time.  We need a private sector leader to explain clearly to the American public what is at stake in these skirmishes. 

Thursday, April 14, 2016

A reasonable expectation of privacy.




I'm in my office before class, having started my morning with a New York University-hosted forum on the Zika virus, which actually will be up for discussion in class this afternoon. About an hour after that forum concluded, Microsoft announced that it was suing the U.S. Department of Justice, "challenging as unconstitutional the government’s authority to bar tech companies from telling customers when their data has been examined by federal agents." (Wall Street Journal)  

Now, class prep completed, I'm listening to an address that FBI director James Comey gave at Kenyon College's "Expectation of Privacy" conference.  He is of course arguing that there needs to be a way Hinto encrypted systems, with many examples being tossed out, usually about terrorists or kidnappers or murderers.  He rejects absolutely the "slippery slope" argument. He asks for a substantive thoughtful conversations of security and liberty.  He ignores the issue of the back door becoming accessible to the criminals, nation states or terrorists.

The late Antonin Scalia argued some time ago that "There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all."
Let's hope that the Congress can remember this, divided as it is, as one or more anti-encryption bills go forward.

I admire Director Comey enormously, including his references to FBI agent training he has instituted via a visit to the Holocaust Museum, and the order from Bobby Kennedy to wiretap Dr. Martin Luther King Jr.'s phones.  I think, though, here you will find the other side of the article missing -- the side that makes the "slippery slope" argument, that believes that source code is protected speech, and that resists creating a tool that the government asks for, one that breaks its own product.

He is right, we have never been closer to a condition of complete privacy with the advent of encryption. May I also point out that the question and answer session that follows his talk is well worth listening to.  He is a good teacher.