Posts Tagged ‘privacy’

Q&A Roundup Part 3

Friday, September 18th, 2015

Hey Nathan,

I’m ≡≡≡≡≡≡≡≡, an AI MSc student. Your comic is great! : ) I have some questions.
 
(1) The Good Wife, a show about lawyers, makes law knowledge seem a bit like a weapon to be used for attack and defence to help one navigate the civilized world. To what extent is this true? That is, what exactly is the utility of law knowledge without a license to practice it? Does being the best unlicensed lawyer in the universe turn you into a superhero or just an interesting dude?
 
(2) Suppose hypothetically that the AI apocalypse will be upon us in 5-20 years. Will laws about AI rights be passed? Will the development of AI systems in uncontrolled environments become illegal in an effort to prevent it?
 
(3) Along similar lines, it might, in the not too distant future, be trivial to surveil everything, everywhere, all the time. How does the legal system address this? How do you see the law evolving as these waves of technology hit us?
 
Cheers,
≡≡≡≡≡≡≡≡

Thanks for writing, ≡≡≡≡≡≡≡≡! Each of your questions could make for a long article in a law review, but here are some quick off-the-top-of-my-head thoughts:

1) I haven’t seen the show, but there are certainly people out there who try to use knowledge of law (and rules in general) as a tool to get their way. Sometimes it’s to prevent other people from doing something, sometimes it’s to make other people do something, and sometimes it’s to get money from people. Obstruction, compulsion, and extortion. They’re rare, in my experience, but they do exist.
If you think of life in a given society as a game, then the law is simply the rulebook for playing that game. And it can be hard to play the game if you don’t have at least a basic understanding of the rules (which is what I’m trying to give folks with my comic). The better you understand the rules that apply to you, the better you’ll be able to play the game, the less likely another player will be able to cheat you, and the better your understanding of the game itself. Similarly, the better you understand the law that applies to you, the better you’ll be able to make informed decisions, protect yourself from those who would use law as a weapon, and the deeper your understanding of our society and culture. The utility of law knowledge is the ability to navigate life.
The reason why lawyers exist, and why there is such a demand for them, is because we keep adding to the rulebook and rewriting it and making it ever more complex and arcane. Nobody can know all of it, so we hire people who understand the bit that affects us right now, and pay them for advice and to make decisions on our behalf. But that doesn’t mean people shouldn’t bother learning at least the basics of law, and just leave it all up to the lawyers. That would be like downloading a bot to play the game for you. And not even knowing which kind of bot to get.
I don’t think a fundamental knowledge of the law makes one either a superhero or extra interesting. I think it’s a basic prerequisite for functioning in any society.
2) The less we understand something, the more we fear it. The more we fear something, the more we try to prevent it. Often, this means passing laws to prohibit something when we don’t understand what we’re prohibiting. Laws like that are typically both overbroad, punishing those it wasn’t aiming at, and ineffective against the intended target.
Most people have even less understanding of technology than they do of law. Politicians and regulators are no different. I’d expect all kinds of laws trying to regulate and prohibit scary tech, and I’d expect blameless people to be prosecuted and punished simply because they’re easy to catch and easy to convict according to poorly-thought-out laws, and I’d expect people who want to develop the tech to find ways of doing so regardless.
In other words, we’ll do what we always do.
3) The concern with surveillance is mostly with how the government can do it. For individuals and businesses, the main concern is not breaking laws against wiretapping – recording someone’s voice without their knowledge. This is why many security video cameras don’t have a microphone.
When it comes to the government, all these extra cameras everywhere are a potential source of evidence that the government could subpoena – and because it wasn’t the government taking the videos, there’d be no issue about whether the government violated your rights when the video was taken. Free evidence that won’t be suppressed. The expense would be in tracking down useful videos and subpoenaing them before they’ve been deleted.
But what I think you’re getting at is whether there may be an erosion of our “expectation of privacy” – and therefore our protections against government surveillance – as surveillance in general becomes more ubiquitous and technologically advanced. I think that’s extremely likely. After all, if a reasonable person would have to expect that he or his stuff could be detected by any private individual or entity, then how can it be reasonable to prohibit the police from detecting it? Not just security video and things people capture with their cell phones, but also code that tracks behavior online, and other details yet to be imagined.
As surveillance technology advances and its use gets more ubiquitous, we’ll have two options: (a) prohibit people from using or making advanced devices; severely restrict public photography and video recording; and restrict the production and use of software that can analyze it; or (b) let the government see what any private person or organization could see. The first option is impractical, unworkable, and in my opinion morally wrong. So we’re probably going to have to go with the second. Our expectation of privacy is going to erode, and the government will be allowed to see more and more of what we do.
I’d be interested to hear what other people think about these questions. All the best!

A Fundamental Disconnect

Friday, May 1st, 2015

Your smartphone has a lot of private stuff on it. Passwords, photos, messages, files. You want to keep it private. So it’s a good thing that companies are building better encryption into their phones, right?

Not according to law enforcement. They complain a lot about encryption. Encryption is pretty good, these days, which means law enforcement can’t easily get stuff that’s encrypted. It used to be you have to be kinda tech-savvy yourself to encrypt your stuff. But now phones are encrypting your stuff by default. Cops, prosecutors, spies, and regulators want those passwords, photos, messages, files. And now they can’t get them. They’re frustrated. Like a spoiled brat throwing a tantrum, telling her dad to make Willy Wonka give her what she wants, they shout at lawmakers to make the nasty companies give them access. Maybe they don’t go “if you loved me, you would” (though they might), but echoing the rallying cry of governmental overreach everywhere, they scream “think of the children!”

Seriously, that’s their argument. Eric Holder, our recently-departed Attorney General, cried “think of the children!” last autumn at the Global Alliance Against Child Sexual Abuse Online conference. Law enforcement can do its job while “adequately protecting” your privacy (whatever he thinks that means), he said — but “when a child is in danger, law enforcement needs to be able to take every legally available step to quickly find and protect the child and to stop those that abuse children. It is worrisome to see companies thwarting our ability to do so.”

 

Damn those evil, evil companies for helping child abusers!

It’s a common refrain. Just the other day, a Massachusetts district attorney testified before Congress that “when unaccountable corporate interests place crucial evidence beyond the legitimate reach of our courts, they are in fact placing those who rape, defraud, assault and even kill in a position of profound advantage over victims and society.”

Damn those evil, evil corporations!

What law enforcement needs, they say, is a “backdoor” — they demand and insist that tech companies build flaws into their encryption, so that government can get those secret files and catch bad guys. We can trust law enforcement to only use those encryption flaws for a good cause. And it’s not like any of those bad guys will be able to use those flaws to commit more crimes.

-=-=-=-=-

Of course this is pure nonsense. And fortunately there was at least one congressman present on Wednesday who knows it.

California Rep. Ted Liu called B.S., in no uncertain terms. Tech companies aren’t doing this to help criminals, he said, but to protect their customers. “Because the public is demanding it.” And by the way, the public is demanding it because it “does not want an out-of-control surveillance state.” That’s right, the public is demanding protection from the government.

Which is what the Fourth Amendment’s all about, after all. Protecting our privacy from government intrusion.

This may seem obvious to you. That you have basic privacy interests in your stuff. And just because the government wants to see it, that doesn’t mean they should be able to.

But law enforcement doesn’t see it that way. Nope. Cops and prosecutors and spies and regulators honestly believe they are entitled to it. If evidence of a crime exists, they honest to God think there oughta be a way for them to get it.

That’s the fundamental disconnect that’s driving this debate. Because they’re wrong.

-=-=-=-=-

Let’s set aside the colossally stupid assumption that only good guys will be able to exploit backdoors to encryption. But only after noting that this alone demonstrates an enormous lack of understanding about how data tech works. That the folks who are supposed to be protecting us from malicious hackers want to give those very crooks a way to steal our private data, our bank accounts, our private photos — this alone should be alarming as hell.

Who’s accusing whom of aiding and abetting the bad guys?

But let’s set that aside. Let’s focus on that disconnect. That fundamental misunderstanding of the role of law enforcement, of the Constitution they’re sworn to uphold, and what law enforcement is “entitled” to.

-=-=-=-=-

Here’s the deal: Law enforcement isn’t entitled to a damn thing.

Yes, we’d love for them to be able to get all the evidence they lawfully can. Absolutely. If there’s evidence of a crime, and the government can find it without violating anyone’s rights, then by all means the government should do so. Society wants criminals to be punished for their crimes, and that can’t happen without evidence to prove that they did it.

Society wants that. But it demands that government not violate our rights in the process. There’s nothing in the Constitution granting law enforcement the right to collect evidence. But there’s plenty in there specifically protecting individuals from the government, specifically limiting what the government can do when it tries to gather evidence. Why? Because although catching and punishing the bad guys would be nice, it’s not as important to us as making sure the government doesn’t use its awesome power to do bad things to us.

We’ve balanced it nicely with our Exclusionary Rule. If law enforcement crosses the line, then they’re not allowed to use evidence they got by crossing that line. But they can still use the other stuff they got lawfully. This encourages them to gather all they lawfully can, without any fear of repercussions, and only takes away stuff they shouldn’t have had in the first place. And our courts bend over backward to say evidence was lawfully gathered.

But not everything can be lawfully gathered. It just can’t. Just because it exists, that doesn’t mean the government can see it.

“But private actors can see it!” you hear law enforcement cry. “Where’s the justice in a system that prevents the police from seeing stuff a civilian or a company could see?”

One: You are also civilians. No matter how much you arm yourselves with military gear and dress up like soldiers, police are not the military. You’re us. We’re not “them.”

Two: As Representative Ted Liu pointed out in a strong rebuke to the D.A. at that hearing, “here’s the difference: Apple and Google don’t have coercive power. District attorneys do, the FBI does, the NSA does.”

It’s simple. Private actors aren’t restricted by the Fourth Amendment, because private actors aren’t the government. They can’t throw you in jail. Maybe they can sue you or ding your credit rating, but the government can destroy your life and even take it away. The Constitution tries very hard to limit what the government can do with all that power. And as Rep. Liu concluded, “it’s very simple to draw a privacy balance when it comes to law enforcement and privacy: just follow the damn Constitution.”

So no. You can’t whine and cry that you’re not allowed to see things the rest of us can see. We need to be protected from you. Our founding fathers knew it. The Constitution you’re sworn to uphold exists to protect us from you. From you, not from Google.

-=-=-=-=-

“But what about the children!”

What about them?

“What about a kid who’s in danger of being horribly abused by a bad guy?”

And you have his phone, but not… him?

“Didn’t you hear us? A kid could have been horribly abused!”

That would be sickening and awful, and we’d love it if you caught the guy who did it.

“Well, what if the evidence we need to prove the bad guy did it is encrypted on his phone?”

And you’d know this… without having other evidence?

“For the sake of argument, yes! My God, we won’t be able to punish the man who made this child suffer!”

And this is different from every other case where you can’t find the evidence you need… how?

“We know it exists! Probably!”

And this is different from any other case where you can’t find the evidence you need… how?

“But tech companies can design their products so we can find the evidence! Government should compel them to do that!”

Well, how about private safes and security vaults, should those manufacturers be forced to design inherent flaws so cops can open them easily?

“That’s a great idea! Yes!”

Wait, I didn’t-

“Yes! And lawyers and doctors and priests — we should be able to force them to tell us what the suspect told them! And…”

You’re starting to scare me. This is the kind of government overreach we’re afraid of. Don’t you get it?

“But think of the children!”