Tag Archives: Google

Supreme Court decision leaves unanswered questions on GPS tracking

(Mike Renlund/Flickr)

WASHINGTON — As Antoine Jones drove his Jeep Grand Cherokee around the Washington area  in the fall of 2005, he was simply going about his daily routine.  But unfortunately for Jones, whose daily routine involved frequenting a drug stash house in Maryland filled with $850,000 and 97 kilograms of cocaine, the U.S. government was watching.

Thanks to a global positioning system covertly placed in the underbelly of Jones’ car, the government was able to track and record the Jeep’s every move.  But Jones challenged the legality of evidence, saying the GPS had not been installed within the time frame or physical jurisdiction outlined by the court in issuing a search warrant. The government argued that the GPS placement didn’t actually constitute a search under the Fourth Amendment so the fact that police had not followed the warrant guidelines was irrelevant.

In what many viewed as a strong victory for privacy rights, the Supreme Court unanimously ruled that the attachment of the device was  a search under the Fourth Amendment, thus requiring a warrant.  But while the opinion authored by Justice Antonin Scalia answered the specific question in regards to a “physical search,” it was mum on the broader implications of the ruling.

“[The case] simply left for another day whether monitoring a device that had been preinstalled or otherwise gathering a large quantum of data on somebody would also raise a Fourth Amendment issue,” said David Gray, an associate law professor at the University of Maryland’s Carey School of Law.  “That was the ground that the four-justice concurring opinion by Justice [Samuel] Alito was ready to reach, but the narrower ground identified by the Scalia majority didn’t need to get there, so it didn’t.”

This narrow ruling was not unusual, Gray explained.  Courts usually try to “reach the narrowest grounds for a decision” and, because the court did not believe that the larger issue was adequately presented, Gray believes it would have been “irresponsible” to extend the decision more broadly.

A whole new level of technology

The Jones decision was built off of the Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures… [unless] upon probable cause, supported by oath or affirmation.”  Over time, the amendment has been understood to assert the necessity of a search warrant before law enforcement can begin a search of people or property.

While the U.S. government did concede that officers had violated the terms of the warrant, the lawyers argued that GPS tracking did not require a warrant, citing previous cases that ruled placing a homing beacon on a car did not require a warrant.  However, the defense asserted that GPS technology was exponentially more intrusive than the homing beacons, which essentially allowed police to track the beacon only when they were within its line of sight.

“This is an exceptional form of technology in terms of what resources have been available to law enforcement in the past,” said Kendall Burman, a senior national security fellow at the Center for Democracy and Technology.  “They are able to track individuals and cars in this instant without the use of human beings.”

The third party doctrine

Because Scalia’s ruling stated that the “government physically occupied private property, questions continue to arise in regards to “nonintrusive” searches.

The Supreme Court’s third party doctrine outlined in United States v. Miller explains that citizens cannot expect privacy protection under the Fourth Amendment over information they disclose to a third party.  When coupled with the growing amount of location information collected by private companies, this doctrine allows companies to use this information however they see fit.

Graphic by Ben Kamisar

John Villasenor, a senior fellow in the Center for Technology Innovation at the Brookings Institution, said that as private companies continue to amass mountains of information on the general public, location tracking without a “physical search” that would require a warrant under the U.S. v. Jones is already becoming less relevant

“Technology has changed so much that a lot of us have our locations tracked anyway without a warrant, so the issue of before-the-fact warrants will, in many cases, be less important than it was even when the events that led to Jones started,” he said.  “…The location data to track you and me and almost everyone else is already stored somewhere.  The question is, [who can] go and get it.”

As of March, a Pew Internet report found that 46 percent of American adults use a smart phone.  These devices, which mostly run on operating systems created by Apple or Google, collect location data which is aggregated and stored by the company.

Justice Sonia Sotomayor addressed the issue of the third party doctrine in her concurrence, where she mentioned the possibility of reviewing the doctrine.   Burman said that she was “heartened” to see Sotomayor question this doctrine and hopes that the court will address situations where people are not intending to lift the “veil of privacy” from their activities.

“I think the concurrence really draws that doctrine into question,” she said.  “The strength of [Justice] Sotomayor’s concurrence along with [Justice] Alito’s suggests that there is a real opportunity to reevaluate what the third party doctrine means.”

But while Gray understands the need to re-evaluate the doctrine, he believes that the current doctrine “reflects a pre-existing assessment [of] the proper balancing of interests under the Fourth Amendment” between private rights and the ability of law enforcement to perform their duties.  In his view, there are many legitimate circumstances in which law enforcement should be able to work with private companies. As a hypothetical example, he cited  a social network company turning evidence of criminal activity to the police on its own accord.

“If you had a broad rule that any information that was detected and aggregated by a private company could not be shared with government without violating the Fourth Amendment, then you would essentially be building this artificial wall that would dramatically limit the ability for law enforcement to get involved in circumstances we would like them to get involved,” he said.  “It’s going will be hard to make the case that building an artificial wall best serves the proper balance.”

Tracked by cyber-footprints

Every time we swipe in at the train station, make a purchase at the grocery store or walk by a bank, some element of our personal data is collected. You could be alone on a backpacking trip, making no contact with the outside world, and that smartphone turned off in your pocket still would use global positioning systems to track your every move.

We are living in a time of information overload, and sometimes it becomes difficult to remember where we have left cyber-footprints.

For 48 hours, I tracked exactly who was taking my information digitally and how it could be used. During this time, I spent one day in Washington  and the next day traveling by air to Chicago.

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Google standing by hotly contested change in privacy policy

WASHINGTON — Google is maintaining that a privacy policy implemented Thursday is not the dangerous change civil liberties experts are claiming it could become.

The new approach combines the privacy policies of more than 60 Google products into a uniform code that emphasizes what the search giant considers a “more intuitive user experience.”

In an official Google blog post Thursday, Alma Whitten, the company’s director of privacy, product and engineering, wrote that the policy adjustment makes Google’s privacy controls easier to understand. Beyond that, nothing has been drastically modified, she said in the blog post.

“The new policy doesn’t change any existing privacy settings or how any personal information is shared outside of Google,” Whitten wrote. “We aren’t colleting any new or additional information about users. We won’t be selling your personal data. And we will continue to employ industry-leading security to keep your information safe.”

The company has contended a more universal policy will work to its users’ advantage in the long run. For example, under the new privacy policy, one Google product could generate traffic conditions if another Google product pinpoints the user in a certain geographic location.

Since the altered privacy policy was disclosed earlier this year, it has touched off a wave of international criticism from everyone from civil liberties watchdogs to elected officials.

In late February, 36 attorneys general signed an open letter dinging Google for not allowing users to opt out of the new privacy policy. The message, addressed to Google CEO Larry Page, addes that the privacy shift allows a user’s personal information to be shared across multiple services even if the user signs up on only one service.

The privacy policy revamping basically results in personal data being “held hostage in the Google ecosystem,” the members of the National Association of Attorneys General said in the letter.

The association’s missive came several days after the Electronic Privacy Information Center sued the Federal Trade Commission as a way of persuading it to curb Google’s impending policy change.

And on Thursday, European Union Justice Commissioner Viviane Reding declared the consolidated privacy policy goes against European law. She told the BBC that the search giant is not following transparency rules as it collects personal information across Google’s dozens of platforms, including YouTube and Blogger.

Google has greeted each challenge with the same defense: Its new, unified privacy policy follows all applicable laws and makes using its services easier for all users.

The company told a reporter for The Washington Post’s Post Tech blog that it remains “happy to discuss this approach with regulators globally.”

Thursday’s Google blog post confirmed the company’s confidence in its privacy policy revision.

“As you use our products one thing will be clear: It’s the same Google experience that you’re used to, with the same controls,” Whitten wrote.


Online Privacy: Is it even possible in today's networked world?

WASHINGTON–On July 4th, 1776, the founders of our country adopted the Declaration of Independence, and forever altered the course of history. But at heart of that document is one line that stands out above all others: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

Life, liberty and the pursuit of happiness: three ideas, three unalienable rights that have come to define our country and our country’s mindset. But there’s another idea that is thought to be in line with those: privacy. The Fourth Amendment to the Constitution, part of the Bill of Rights, guards against unreasonable searches and seizures. But is privacy a right, or is it just assumed to be a right? In a modern world where Facebook and targeted ad campaigns based on ¬¬internet surfing patterns reign supreme, can we even assume that our information is being kept private and safe?

In the wake of recent congressional hearings on online privacy, major players such as Facebook, Apple and Google were questioned on that very topic: Is their consumers’  information safe and private?

At the hearing, Facebook chief technology officer Bret Taylor assured Senate leaders that they “never sell data to third parties or advertisers” and that “in every aspect of a product’s design, privacy is an aspect of the discussion.”

However, one day after these hearings, multiple media outlets reported that a hacker had compiled information from 100 million Facebook users—including email addresses, individual websites, and phone numbers—and made all of this information available for download.

This flies in the face of exactly what Taylor said, that such information is private and not  available to hackers. Facebook will counter with an argument centering on user privacy controls, but does the company believe that everyone who uses their product is aware of these controls?

In a recent E-Business and ForeSee Results customer satisfaction index report, Facebook scored in the lowest five percent of private sector companies.

“Our research shows that privacy concerns, frequent changes to the website, and commercialization and advertising adversely affect the consumer experience,” said Larry Freed, president and CEO of ForeSee Results, in a press release.

Google, meanwhile, has faced similar problems concerning privacy. More than two months ago, Google admitted it collected date on users of its Google Maps Street View program. And in a move that will surely raise some eyebrows, Examiner.com reported Monday that a German company recently sold GPS-controlled surveillance drone cameras to Google. The reported purchase of these drones is that they will be used with other mapping projects.

In a world of increasing surveillance and by default, less privacy, is there a reasonable right to expect privacy?

According to the Wall Street Journal, in 2008, Microsoft had plans to unveil its Internet Explorer 8 with a “privacy by default” setting, as opposed to Facebook’s opt-in privacy mantra. But Microsoft’s plan was quickly scrapped in favor of a track-and-sell targeted ad program aimed at its users. The reported reasoning for such a change: “Executives who argued that giving automatic privacy to consumers would make it tougher for Microsoft to profit from selling online ads.”

So the question becomes: If the companies in charge of so much of our so-called “private” information have no incentive to protect what we do online, should demand more control over our privacy?