Privacy; Past, Present and Future
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Privacy; Past, Present and Future

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Let's cover the history of privacy to reflect on current events. It may surprise you the same abuses of privacy come up throughout US history, and the same battles to protect an individual's privacy ...

Let's cover the history of privacy to reflect on current events. It may surprise you the same abuses of privacy come up throughout US history, and the same battles to protect an individual's privacy are fought.

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  • There is also “religious law” which typically will have no privacy laws, however will enforce privacy rights for their leaders. <br />

Privacy; Past, Present and Future Privacy; Past, Present and Future Presentation Transcript

  • Privacy Past, Present and Future Toorcon San Diego 2013 Robert Rowley @iamlei
  • This guy ● Researcher ● Not a lawyer ● Reads a lot about law
  • This guy ● Researcher ● Not a lawyer ● Reads a lot about law Warning: When drunk I have been known to harass lawyers about legal contradictions and obscure case history.
  • This talk Previously worked in a position where I was able to uphold privacy rights of thousands of customers. (abuse desk) Perked an interest in law, which I had known to pick up a book on the subject matter from time to time. Bought two books on privacy found in a dark, over-filled used book store somewhere on Belmont in Chicago. ● Book A) 1962 publish ● Book B) 2003 publish ● They contrasted
  • Breakdown ● Definitions ● Origins of Privacy ● Legal Cases ● Modernization ● Reflection of Current Events ● Future Predictions
  • Defining Privacy ● Legal Definition ● Personal Sense
  • Understanding Law ● Common Law United States ● Civil Law Europe
  • Understanding Law ● Common Law United States ● Civil Law Europe Religious Law
  • Early Technology “Technology” Allowing people to communicate easly to masses of people. Guesses?
  • Early Technology “Technology” Allowing people to communicate easly to masses of people.
  • Encouragement of Learning Queen Anne, London 1706
  • Enter Curl ● ● Curl publishes the book “Letters from Swift, Pope and others” This work is mostly composed of letters written by literary figures, published without their consent. Not this Pope
  • Early Privacy Cases ● Pope v. Curl; London Circa 1741 ● Lord Chancellor Hardwicke Not this Pope
  • Early Privacy Concerns “Technology” Allowing two or more people separated over vast distances to communicate with each other. Guesses?
  • Early Privacy Concerns “Technology” Allowing two or more people separated over vast distances to communicate with each other.
  • Early Privacy Concerns ● ● Ben Franklin (Postmaster for Colonies 1730-1775) Could not guarantee confidentiality of letters handled by postal system.
  • Early Privacy Concerns ● ● ● Ben Franklin (Postmaster for Colonies 1730-1775) Could not guarantee confidentiality of letters handled by postal system. 1753 required postal workers to give an oath to not mishandle mail.
  • Early Privacy Concerns ● ● ● ● Ben Franklin (Postmaster for Colonies 1730-1775) Could not guarantee confidentiality of letters handled by postal system. 1753 required postal workers to give an oath to not mishandle mail. During the revolutionary war, mail sent via the post is commonly being inspected by third parties.
  • Early Privacy Concerns After the revolution ● ● ● ● Franklin no longer postmaster Postal Confidentiality Laws Pushed by Washington and Jefferson are passed Basis of the “Federal crime to open another person's mail” Locks on mailbags and other deterrents implemented
  • 1800's Privacy Cases in the US ● ● MacKenzie and his associates find a chest of letters written to a third individual “Hoyt”. They then take the collection of letters to a New York publisher and prints a book of the compilation of letters, without consent of Hoyt.
  • 1800's Privacy Cases in the US ● Hoyt v. MacKenzie and Others (1848, NY) ● Lower New York court sides with Hoyt citing Curl v. Pope
  • 1800's Privacy Cases in the US ● Hoyt v. MacKenzie and Others (1848, NY) ● Lower New York court sides with Hoyt citing Curl v. Pope ● Decision is reversed by the NY Chancellor. ● ● Hoyt not being the original author of he letters can not argue they are his property. MacKenzie is allowed to continue selling the books.
  • 1800's Privacy Cases in the US ● ● ● Woolsey v. Judd (1855, NY) New York courts ruled opposing the previous Chancellor's decision in Hoyt v. MacKenzie. The original author and recipient allowed joint ownership/protection from private letters being published.
  • Modernization ● ● Seeing the need for privacy to be addressed in the US legal system two lawyers (Warren and Brandeis) publish “The Right to Privacy” essay in the 1890 Harvard Legal Review Considered the most influential writings on privacy in legal matters.
  • Right to privacy ● ● ● ● ● The right to privacy does not prohibit any publication of matter which is of public or general interest. The right to privacy does not prohibit the communication of any matter, though in its nature private, in concerns of slander and libel. The right to privacy ceases, upon the publication of the facts by the individual or with their consent. Factuality of the matter published does not afford a defense. The absence of malice in the publisher does not afford a defense.
  • Early 1900's Privacy Concerns ● Photography “Kodakers”
  • Early 1900's Privacy Cases ● ● A flour company uses a photo of young girl, Abigail Roberson on 25,000 prints, advertisements and lithographs promoting their products. Without the consent of the Robersons.
  • Early 1900's Privacy Cases ● “Roberson v. Rochester Folding Box Co.” (1902) ● Affectionately known as “Abigail”
  • Early 1900's Privacy Cases ● “Roberson v. Rochester Folding Box Co.” (1902) ● Affectionately known as “Abigail” ● The right to privacy does not exist in law, thus the court can not rule on that merit. ● Apparently no one read 1890's Harvard Review. ● Abigail lost the battle, but the war raged on.
  • Early 1900's Privacy Cases ● ● ● New York Signs First Privacy Act (1903) Sec. 50: A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor. Georgia rules case for an individual's privacy (1905)
  • Early 1900's Privacy Cases ● ● New England Mutual Life Insurance uses the likeness of Mr. Pavesich in one of their advertisements. Without consent of Mr. Pavesich. They did not even give him free life insurance.
  • Early 1900's Privacy Cases ● ● Pavesich v. New England Mutual Life Insurance (GA 1905) “ The publication of a picture of a person, without his consent, as a part of an advertisement, for the purpose of exploiting the publisher's business, is a violation of the right of privacy of the person whose picture is reproduced, and entitles him to recover without proof of special damage.”
  • New Technology! ● TelegraphTelephone ● Wiretaps!
  • Wiretapping ● 1934 Federal Communications Act ● Creates the FCC and addresses wiretapping ● Required carriers to allow law enforcement the authority to activate interception of communications or access to call-identifying information and to prevent any such interception or access without such authorization
  • Wiretapping ● 1960's Charles Katz picks up a payphone in Los Angeles to make gambling wagers in other states. ● The payphone was being bugged by the FBI. ● Katz is arrested and convicted for illegal gambling. ● Katz appeals to the supreme court.
  • Wiretapping Advancements ● Transistor advancements ● Micro-bugs designed ● Hal Lipset's Olive in a martini ● Senate begins drafting privacy bills related to wiretapping
  • And then came Nixon
  • Another Patriotic Asshole ● 1972 break in of Democratic HQ at the Watergate hotel. ● Wiretapping of the oval office recorded Nixon (tapes “lost”) ● Smoking gun, Nixon's cover up found on one tape recording. ● Nixon resigned in 1974 (he is later pardoned by Ford) ● Americans react by voting in many new Democratic leaders.
  • Church Committee ● Laundry list of government abuses ● Privacy, human experiments, assassinations and more... ● ● Lead to the creation of the United States Senate Select Committee on Intelligence Primary duties are overseeing US Intelligence Community. Not this church
  • Privacy Act of 1974 ● Drafted before Watergate ● Quickly approved in 1974 ● Reformed through 1978, as privacy is now a big topic
  • Privacy Act of 1974 1. Privacy of communication. ● ● No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains. Exceptions exist for law enforcement, etc...
  • Privacy Act of 1974 1. Privacy of communication. 2. Retain disclosure records. ● ● Each agency, with respect to each system of records under its control, shall keep an accurate accounting of the date, nature, and purpose of disclosure. Retain these disclosure records for at least 5 years.
  • Privacy Act of 1974 1. Privacy of communication. 2. Retain disclosure records. 3. Provide access to records for the individual. ● ● Upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system. Permit the individual to request amendment of a record pertaining to him
  • Privacy Act of 1974 1. Privacy of communication. 2. Retain disclosure records. 3. Provide access to records for the individual. 4. Civil remedies ● Statutory damages to be collected against government agencies for failure to comply with the rules (inaccurate data, reckless data sharing/loss, etc..)
  • Foreign Intelligence Surveillance Act ● FISA Passed 1978 ● Outlined wiretapping laws, applied strict controls ● Created Foreign Intelligence Surveillance Court ● Allowed for unwarranted surveillance of foreign nationals
  • Many more aspects ● Contraception ● Religious freedom ● Abortion ● Suicide ● Gay/Lesbian rights
  • The Digital Age ● Computers, Networks, Data ● Mass data collection, cheaper every year.
  • Electronic Privacy Act ● 1986 ● Extended wiretapping laws to include: ● Digital communication ● Paging devices ● Tracking devices ● Electronic funds transfer
  • September 11th 2001
  • US PATRIOT ACT (2001) Title II. Enhance Surveillance Procedures ● Requires disclosure of electronic communications and customer data to law enforcement agencies for communication and commerce companies. ● "Sneak and peek" warrants ● Roving wiretaps ● FBI to granted access to documents that reveal the patterns of U.S. citizens.
  • Brandon Mayfield ● ● ● ● Oregon Lawyer Takes a child custody case for a low-income client, Jeffery Battle. Battle was associated with a group in Portland who were working to join Al Qaeda. (e.g... “Terr'rist”) Because of the association, Mayfield is now being surveilled by the FBI.
  • Brandon Mayfield ● ● March 11th, 2004 – Madrid Train Bombings. FBI marks Mayfield as the primary suspect, based on hearsay and false evidence. ● Mayfield arrested at his office, held until May 20th, 2004. ● Mayfield is awarded a settlement for FBI violating his rights. ● Mayfield is allowed to challenge the US PATRIOT ACT.
  • Brandon Mayfield ● ● ● Mayfield v. USA (2007) 2007, Judge Aiken declared unconstitutional two portions of the USA PATRIOT Act Both related to surveillance without a warrant/court oversight
  • John Doe ● ● Doe v. Gonzales; Doe v. Ashcroft; Doe v. Mukasey Each case related to the unconstitutional National Security Letters, and their imposed gag orders.
  • John Doe ● ● ● ● Doe v. Gonzales; Doe v. Ashcroft; Doe v. Mukasey Each case related to the unconstitutional National Security Letters, and their imposed gag orders. 2005, Judge Victor Marrero declared National Security Letters unconstitutional. 2008, EFF Filed Amicus briefs to have NSL provisions removed from PATRIOT Act.
  • Nicholas Merrill ● ● Doe v. Gonzales; Doe v. Ashcroft; Doe v. Mukasey 2010, Nicholas Merrill is allowed to go public that he was the John Doe named in Doe v. Ashcroft
  • Recent History ● ● ThinThread, Trailblazer and Stellar Wind (and many more) Whistleblowers: Thomas Drake, Thomas Tamm, William Binney, J. Kirke Wiebe and Edward Loomis (and many more) ● Massive global surveillance programs ● Many were Pre-September 11, 2001
  • Recent History ● Wiretapping Communication (mid-early 2000's)
  • Recent History ● Wiretapping Communications ● AT&T ● Room 641A ● Whistleblower: Mark Klein ● Hepting v. AT&T (filed in 2006 by EFF)
  • Recent History ● Wiretapping Communications ● AT&T ● Room 641A ● Whistleblower: Mark Klein ● Hepting v. AT&T (filed in 2006 by EFF) ● Case Dismissed in 2008; Congress amended existing laws, giving retroactive protection.
  • Recent History ● Wiretapping Communications ● AT&T ● More litigation stemming from room 641a ● Jewel v. NSA (filed in 2008 by EFF)
  • Recent History ● Wiretapping Communications ● AT&T ● More litigation stemming from room 641a ● Jewel v. NSA (filed in 2008 by EFF) ● Dismissed 2010 (by Judge Vaughn Walker)
  • Recent History ● Wiretapping Communications ● AT&T ● More litigation stemming from room 641a ● Jewel v. NSA (filed in 2008 by EFF) ● Dismissed 2010 (by Judge Vaughn Walker) ● Reinstated 2011 (Court Appeals, 9th Circuit)
  • Recent History ● ● “Whistleblower”: Edward Snowden Released secret documents related to global surveillance programs
  • Privacy Bills ● USA FREEDOM Act ● Sensenbrenner (R-OH) ● Reform sections of PATRIOT Act to implement tighter surveillance requirements.
  • ● ● ● Sensenbrenner (R-OH) USA FREEDOM Act Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act
  • ● ● ● ● ● ● Sensenbrenner (R-OH) USA FREEDOM Act Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act USA PATRIOT Act Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act Acronymoholic
  • Privacy Bills ● ● Intelligence Oversight and Surveillance Reform Act Wyden (D-OR), Udall (D-CO), Blumenthal (D-CN), Paul (R-KY) ● End Bulk Collection of Phone Records ● Creates Constitutional Advocate for Secret Courts
  • Is privacy dead?
  • Is privacy dead? ● It is a basic human right. ● It will come under attack. (Technology) ● It must be fought for. (EFF/ACLU) ● People saying this typically want to sell you something.
  • The privacy battle ● ● Privacy vs. Security (4th amendment 1792) “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches ...”
  • The privacy battle ● ● ● ● Privacy vs. Security (4th amendment 1792) “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches ...” If data is to be collected (Privacy Act 1974) Responsibility of the party collecting data to not mis-handle the data collected.
  • What if privacy could be boiled down? ● Transparency ● Accountability ● Oversight
  • What if I wish to do more? ● Read ● Talk to your representative (let them know it's important) ● Join EFF/EPIC/ACLU or other civil rights groups.
  • Resources ● Privacy “The right to be let alone” Ernst/Schwartz 1962 ● “Ben Franklin's Web Site” Robert Ellis Smith 2000 ● “The Right to Privacy” Harvard Review 1890 ● Sarah Igo Lecture “Privacy” ● EPIC (epic.org) ● EFF (eff.org) ● Liberation technology (liberationtechnology.stanford.edu) ● Harass me on twitter: @iamlei ● Email: Robert@RobRowley.com