December 1, 2009

Who's Watching Your Browsing?

While some of you blogwatchers out there are deeply worried about the public feud between a right-wing blogger and a formerly right-wing blogger who got fed up with the excesses of the more vocal elements of the conservative blogosphere and deciding whether you will follow suit or will instead excorciate the splitter (a navel-gazer of an issue if I've ever seen one, and at most a symptom of the growing polarization of our political dialogue), and others are deeply concerned that President Obama said at West Point today what he'd been saying for a week he was going to say there about a "surge" in the Afghanistan war (admittedly a deeply serious issue), and still others are taking up arms to fight the War on the War on Christmas (deliciously condemnable silliness just in time for the holidays, natch), I'd like to point out something that you might have missed.

You are very likely carrying around with you, in your pocket, briefcase, or purse, a device, for which you pay a private company money every month so that data can be broadcast to and from it.  Data like digital transmissions of your telephone conversations.  Data like where you are when you are having that conversation.  Data like how fast you are driving your car.  Data like where you car is going.  Data like how long you are to be found at any particular location.  Think about the accuracy of the GPS unit in your cell phone's mapping program -- mine gets me to within six feet of my actual location, every time and yours is probably at least as good.  Data like when you access the internet over the phone and what kind of websites you are cruising for information.  What Twitter feeds you read.  What txtmsgs u snd 2 yr frndz & hw oftn u snd them.  When you have alarms set on your phone to wake you up in the morning.  However you use your cell phone, it all is reduced to data.

Now, all of that data is sent through that private company's computers.  It doesn't matter whether you have Sprint, Verizon, AT&T, T-Mobile, or whatever other company is out there.  It all goes in to a computer and you'd better believe it all gets recorded.  Even your phone calls.  How do you think you get your voice mail?  The voice messages are digitally recorded on the central computers.

So, Johnny FBI comes along and says, "Hey there, Elaine The Sprint Data Librarian!  How's it going today?"  Johnny FBI smiles real nice.  He's handsome.  Then he says,  "I wonder if you could do me a favor.  My boss would like to review your company's data files showing the tracking location and data access usage ratio for, I dunno, about eight million of your customers.  We gotta look for them terorrists!" 

And then Elaine the Sprint Data Librarian says back, "Screw you, Johnny FBI!  If you want our customers' private information, why don't you go talk to Judge Brown down the street and get a warrant?"

Only, um, Elaine the Sprint Data Librarian didn't say that.  Instead, she said, "Here you go, Johnny FBI!  Ooh, you're cute!  And if you need more of our customers' private and personal data, come on back now, y'hear?"  And Johnny FBI happily perused this data obtained without a warrant and never made any public disclosures about it at all.

Oh, I know what you're thinking.  You're thinking, "Wait!  No!  This can't be!  Johnny FBI wouldn't violate 18 USC section 3126!  That's the law!  He'd report on what he was doing to Congress."  Sadly, you'd be wrong -- as a matter of policy, Federal law enforcement agencies have deliberately disregarded this law since 2004.  In fact, all of the major private information providers -- whether they are cell phone companies, internet search engines, or cable companies -- have entire departments, open for business 24/7, who do nothing but respond to local and Federal law enforcement requests for information on how their customers are using their services.

I don't think you have to be a nutjob paranoid to be a little bit unsettled by this.  Nor is that sort of concern something that strikes me as particularly partisan.  Liberals and conservatives both ought to be distrustful of the government, distrustful of the government's motives, and distrustful of what the government does with this personal information to which it has functionally unfettered, unregulated, and unoverseen access. It's not a case of "Well, I don't have anything to hide."  Maybe you don't, but that doesn't mean you like the idea of some analyst deep within a dungeon of cubicles somewhere in Fort Meade, Maryland reconstructing your telephone calls with your friends because you jokes about politics with them, or a detective at your state trooper's office wondering why it was that your cell phone moved through a bad part of town at night and then reconstructing your travels for the previous month to see if your trip there was out of the ordinary.  Because next thing you know, you're on the "no-fly list" and have to explain that no, you're just a boring old insurance adjuster and don't mean any harm to anyone and no one believes you.

The point is, privacy policies are important.  And they have to be adhered to.  And the government has to have some checks on the exercise of its power.  This should concern you, even if you have nothing to hide.  The bad guys -- well, they're going to be bad guys no matter what we do.  If the government wants to get this data, they can -- with a warrant.  That's why we have the Fourth Amendment, and it isn't too much to ask that the government comply with it.

5 comments:

王子 said...
This comment has been removed by a blog administrator.
Transplanted Lawyer said...

Comment deleted as very likely spam and most certainly a non sequitur.

DaveBuck said...

Great post but can you please, as a favor to me, refer to 'data' in the plural. I know these days you're allowed to get away with data being singular ... but I'm old school. It's just something to which I'm not able to adjust and I am so distracted.

zzi said...

You write "Browsing" in a Google blog website and you get spammed?

His Lordship The Gun-Toting Atheist said...

I've heard rumors that it is possible for a wireless carrier to secretly activate a cell phone and listen in, unnoticed.

I've also heard a second hand story about how OnStar operators sometimes randomly start talking to vehicle passengers, with no indication of how long they have been listening in. "Hello Mr. Smith, this is Bob from OnStar. I just want to remind you that your vehicle is due for an oil change. Oh! and your wife is right, Basil Road is the next left."

Of course, these are all unsupported rumors, but in this digital age, one never knows who's watching or listening.