Privacy emerges to forefront of technology regulatory concern

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Though it's been fought mainly in skirmishes rather than an all-out push along the lines of cybersecurity, privacy protection has emerged as the technology regulation issue of the year.

Right now those who are concerned that the technological advances of the recent past not permanently gel into a world where expectations of privacy once considered routine melt away have a mixed record of victory to draw on. The Supreme Court's ruling on United States v. Antoine Jones is one such victory, even if it's not a complete one since despite the unanimous ruling that a Global Positioning System tracker attached to Jones's car was a violation of the Fourth Amendment, only a minority could agree that it was a violation of privacy.

The temporary injunction ordered Sept. 13 by a federal judge against a requirement that the financial disclosures of senior executive service members be posted online is another, especially since it recognizes the fact that online aggregation of otherwise publicly-available information can by itself create new privacy concerns.

"The right to informational privacy assumes added importance in the realm of cyberspace due to the gathering and almost instantaneous transmission of vast amounts of information," wrote Judge Alexander Williams of the U.S. District Court for the District of Maryland, Southern Division.

Data collection is not necessarily neutral, Williams said, an important recognition that when put in the context of law enforcement fusion centers could perhaps spark the Justice Department to fill the regulatory loophole it's used to amass data on Americans simply going about their ordinary business.

However, the immediate future promises many challenges, including an effort by the Justice Department to utilize longitudinal location data gleaned from cell phone towers without a warrant. Justice's argument that cell phone tower location data falls below Fourth Amendment protection because it "is far too imprecise by any measure to intrude upon a reasonable expectation of privacy," would still turn cell phones into at-will (law enforcement's will) tracking device, however imprecise.

In addition, the Federal Aviation Administration (at Congress's insistence) appears poised to usher in a new era of small unmanned aerial vehicle usage by law enforcement without properly grappling with the privacy implications that police use of those vehicles will pose.

An FAA official recently told Government Accountability Office investigators that privacy is outside their scope--they regulate aviation safety. But the federal government should not permit UAVs into the airspace without addressing what kind of surveillance and under what conditions police can use these new machines.

In a recent report, GAO auditors use the UAV issue to repeat a recommendation they've made for Congress to pass a law that would require consistent application of privacy protection to all federal collection and use of personal information, that ensures that use of personally identifiable information is limited to the stated purpose of its collection, and that ensures the public is given effective mechanisms to be informed about privacy protections.

Given the pace of new challenges to privacy caused by new technology, and given the brushfire nature of attempts to impose privacy regulation on those technologies, it's clearly time for Congress to act. The fact that it's probably incapable of doing so only adds to the urgency of privacy as today's defining issue. - Dave