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Matthew DeAngelo CST 373 Assignment 5: Privacy Post-9/11

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Privacy, to every person it has a different meaning. For some, they squirrel their lives away from daylight and live as if a recluse wanting none to know who they are. Others, their whole life is as if an open book. The advent of the internet certainly had a revolutionary effect on privacy, the details of many lives only a few clicks away. Yet what perhaps has an even deeper impact upon the concept of privacy is when one perceives that they, or those under their care, are in danger. One such obvious example would be the years following the September 11 terrorist attacks upon United States soil in 2001 yet we must also keep in mind rapidly developing technology and how the users of said technology may clash with those of the previous generation. To begin with what is privacy? At its most broad it can be said to the right to be let alone, as said by Louis Brandeis and Samuel Warren (The Right to Privacy,). That is to say that each person has a bubble of sorts that belongs solely to them in which a person can exist without influence, coercion, or observation from the outside world. One such example might be a persons personal bedroom, particularly if it is where they spend much of their alone time. It is in such a place that they might store personal belongings that have meaning to them, writings, entertainment, or even just to sit and think. Things which belong to them that others have no business poking their nose into. From there it should be that persons decision as to which aspects or items in this area of seclusion they chose to share with others. Yet the previous is a rather general definition and it can be rather difficult at times to say what a breach of privacy is and what is not. Thus let us take a look at what the American

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common law recognizes as the definition of privacy for the purposes of a lawsuit, as said by William Prosser who was both a teacher and dean for several law schools. 1. 2. 3. 4. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs. Public disclosure of embarrassing private facts about the plaintiff. Publicity which places the plaintiff in a false light in the public eye. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

To start with these definitions still cover a relatively wide range but still act as a basis for rulings. Yet it should be noted that some of these definitions can still be breeched, whether legally or as a side effect of legally produced information. For example a warrant can be obtained by police from a judge to intrude upon a persons house but only if there is reasonable suspicion or evidence. How said evidence is obtained is another matter altogether. Furthermore sometimes these basic definitions are a double edged sword as evidence that would have resulted in a sure conviction is stricken from the record due to how the evidence was obtained. I would like to note that it seems the fourth definition leans more towards the issue of fabricating evidence than actual privacy. As for me, I consider privacy to be a simple thing. If it is something that causes no harm to others then others have no right to know of or about it except by my permission. Yet who determines what I view or do is potentially harmful to others and how would they even beable to view such to judge? In short, they shouldnt without first finding probably cause. For example, if I were to purchase a video game with a rating of M or above most clerks are required by either
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company policy or government law to check whether I am old enough to actually purchase said game. This is reasonable as for one, I am likely in a public area, and two while it has not been concisely proven whether violent media negatively affects minors our culture as a whole believe steps should be taken to protect them regardless as it could have a potentially harmful effect upon them. If I wish to purchase a gun most merchants are required to run some sort of background check or confirm whether I have a license says I am approved to own such a thing. This is reasonable as a gun poses a significant hazard not only to myself but to others around me. Now granted the previous example does raise another privacy concern as to whether the people who live around a gun owner have a right to know about said guns, given the potential danger, yet I should think that the prior background checks and/or issued licenses be theoretically sufficient in most cases. Regardless there is a thin line that must be walked when one has to consider an individuals privacy and the safety of a community at large. When it comes to the violation of privacy, at least in the United States, one topic that repeatedly crops up is that of the Patriot Act which has a tendency of violating all previously mentioned definitions of privacy. To start with, it should be noted that the Patriot Act was introduced to Congress on October 23, 2001, which was shortly after the 9/11, and became law after only three days. This is significant because it is a relatively short period of time during which the nation was still in chaos over the terrorist attack and clamoring for safety. Thus despite the numerous violations of privacy contained by the Patriot Act lawmakers passed it trying to do what they thought was right given what had happened. If the 9/11 attacks had not happened certainly a similar bill might have been introduced eventually but would have faced much higher opposition as its passing should be attributed as a knee jerk reaction. Furthermore there is much
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discussion as to whether the Patriot Act has actually stopped any terrorist attacks. As Ben Swann points out in his article several cases such as the shoe bomber Richard Reid or the Times Square bomber, which were attributed to being stopped by the Patriot Act, were in fact failed attempts due to malfunctioning equipment though their later arrests could be due in part to the Patriot Act. In another article Jena Baker McNeill gave one particular case as an example of the Patriot Act at work to where Julian Sanchez made several counterpoints citing that several cases that the Patriot Act may have helped with never actually bore solid evidence in an article with the Los Angeles Times. I myself cant say for certain whether or not the Patriot Act has helped, it has some powers which are related to normal criminal cases and yet more that are clearly invasive. I believe that with a bit more work it could be turned into something better that also safeguards our privacy more effectively. There are other challenges to privacy to be had as well though of more specific natures than the more generalized threat the Patriot Act is and some that are for privacy as well. Some of which Amitai Etzioni goes over in his book The Limits of Privacy. For example national ID identification. Oddly enough despite having several forms of identification that are quite similar, and indeed are expected, it seems the nation at large is rather against a nationalized ID. At the moment the closest we come to this is our social security number but that is for the most part limited to financial and tax matters. Nothing else. The main problem with social security numbers is that being just a number it can be easy to copy as, if one has gotten to the point of stealing someones social security number they usually also have access to basic information about the person to be able to utilize it. The second closest thing we have are drivers licenses. These are generally not objected to as they are issued by individual states and thus the
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information those are linked to, such as warrants and what not, are generally only contained within the relevant state without a request being made by another. Drivers licenses also tend to be somewhat easy to forge despite efforts by state governments. I however think national ID cards would be a bad idea, however, that is due to by limiting it to a card we run into issues with losing said card or having it stolen. What I would support would be linking a national ID via biometrics. Biometrics are significantly more difficult to fake and by having a variety of potential biometrics not only does it make it easier for those that might lose a particular limb associated with a given biometric scan but it also creates several more layers of security for more sensitive information. Now there are still potential ways for your biometric to be stolen, depending on what sort of biometric scan is being used, but if one were to back that up with another means of security such as several questions or a code it is even harder to fake. Some question whether your information would truly be safe from corporations given the more centralized aspect but if we were to continue to keep banks around I think it would still be relatively safe as the banks would act as a buffer. Containing only the information on you required for a transaction or perhaps in the event that additional information is required that you would have to fill those in on the spot rather than connect to the national database to retrieve them. The benefits could be huge as well, criminals more likely to be apprehended due to being unable to fake identities, fraud of several varieties would see a downturn as your own body becomes linked to the transaction, as well as illegal immigration being easier to crack down on due to employers requiring at least some access to a persons records which an illegal immigrant would not have.

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Etzioni goes on to speak of encryption as well. This is a debatable topic as while on one hand encryption becoming more wide spread would on average bring an increase in privacy to an individual it also causes several security concerns in that it makes it more difficult to track down terrorists or criminals. Even with a valid warrant for justified reasons law enforcers would not be able to listen in on electronic communication unless they have the encryption key to that specific instance. Now it is entirely possible that said law enforcers could go to companies and use said warrants to obtain the keys that those companies customers are using but for someone who intends harm it would not be difficult for them to get ahold of a non-USA encryption code/ software that the law enforcers would be effectively unable to crack. Thus as a result of pushing for more encryption we would probably end up in the same situation we are in currently for the average person while making it more difficult to target the actual problematic people. Thus against those who would steal our information our privacy is safe while at a potential cost to our safety as a country. Timothy B. Lee makes several points in his article as to why encryption is not already more widespread. Namely convenience for the user as end to end encryption, which would be the most effective, makes it difficult to add features. That is not to say the major provider of programs and such arent encrypting their data and yours, just that for true privacy the consumer would have to give up ease of use and accessibility. Another subject that Etzioni brings up is how our medical records are used. Namely that they tend to get passed off to third parties without our knowledge for a variety of reasons. In some cases its unauthorized such as when a database sells its information to insurance organizations or loan agencies who use them unfairly to target people or in the case of high profile people like celebrities might sell the information to new media outlets. Even worse are
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the authorized or rather overlooked cases such as the disclosure of medical records to employers, which appears to be often done without the prospective employees permission. Frankly I see both cases to be about the same, medical information is not something that is supposed to be disclosed without the medical recipients knowledge or permission. The reason being is it opens the door for discrimination which, as a society, we are supposed to be trying to move away from yet even if a given tidbit of information is not part of an actual process of determining such things as employment if the hirer gets wind of said tidbits it may still influence their decision. In essence, it creates another form of racism especially when you bring genetic information into the mix. Now that is not to say in certain cases the flow of information is not warranted, such as a health insurance company needed access to certain records to give an accurate rate, but it needs to be done with the individuals knowledge. In fact, some people may go undiagnosed or even die from treatable conditions due to their fear of their information being shared. Those of my generation seem to be the most open yet when it comes to the matter of privacy. Certainly this change can be attributed to the rapid development of social networks such as Facebook and Twitter over the past ten years allowing people to reach to millions of internet users easily and yet I cannot help but think it is not quite as simple as that. I think it might be more along the lines that many people do not realize how far what they post on the internet can reach until it comes back to haunt them, such as a certain incident potentially robbing a person of a potential job. As much as said person might protest that is a breach of privacy at the same time they posted the information in what would be considered a public area. Similarly you have the few people who hide behind artificial IP changes, several firewalls, and the like. Yet these same
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people may talk about all the same stuff the more open people do though with either artificial names or withholding names entirely, secure in their safety measures. That is also the nature of the internet at work, allowing someone to sit in absolute privacy and yet interact as much as the next person. Still despite that they leave a trail of information. Bill Tanzers Click actually makes light of this somewhat. What began as a thought in the back of his head after a curious sex based case turned into full blown research. Research on what you ask? On us which he gathered with his own company the Hitwise Competitive Intelligence Service. It is curious just what can be done with our search data and how certain factors can influence how we perform our searches. How receiving spam, something everyone despises, can still increase searches, and as a result sales, for said item. How despite being gung-ho over committing ourselves to New Years resolutions searches relating to help keeping them drop within the first quarter of January. Or worse yet how marketers can insert an idea into our heads due to curiosity that then makes us to look up their product and question ourselves if we might really need it. And this is all possible due to analyzing our search patterns. Now one of the important things he notes is that our personal identities are not gathered due to several filters in place to prevent just that before the data even reaches his company and several more after that to ensure cleanliness. So is this still an invasion of privacy if we ourselves are no longer associated with the data? I say no. For one by using the search engines you are agreeing to their terms and conditions which generally allow them to use the data in any way they wish while providing you with the data you want in return. The user is willingly sending data regarding their interests to a company, thus it is technically not private anymore and by further removing any private info regarding your identity and inserting the remaining data into a statistic you are
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essentially invisible. Now that does not mean someone could not track you based on search patterns but it is a far sight harder than some seem to think. Still, I do not like the idea that the information that I provide is being used without really being told what it is being used on but it would be a nigh impossible task to be tell, or perhaps understand, the average consumer every instance of how their information is being used. When it comes to other cultures things get more interesting. Take for instance the Japanese, to an American they seem to have no concept of privacy. Small living quarters, cramped traffic and public transportation, millions of people living on small islands. Much less their still somewhat common mixed gender multi-person bathing arrangements. At its core the Japanese sense of privacy is a disconnect between physical and mental faculties. To an American privacy is effectively a leave me alone sort of mentality that also includes the need to be physically reclusive, for a Japanese person reading a newspaper amounts to the equivalent in the physical sense. This can also be seen in their older style of architecture where walls would be made of paper or otherwise thin materials that are easily heard through. To the Japanese you might overhear someone talking about something but socially until they tell it to you you do not know of it. When it comes to such things as medical records things get even more curious given the Japanese are also driven to work well as a team. Certain medial information, generally that of something temporary or relatively minor, is expected to be shared with a superior given that it may affect workflow. Yet more permanent conditions are considered a heavily taboo and private subject. When it comes to matters such as data tracking the Japanese also seem to have the viewpoint that the data is a statistic and not associated with an individual which seems to follow the previously mentioned idea that if a person is expressly told something they do not know it
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even if it was overheard. Overall it seems Japan tends to trend towards the idea that the needs of the many transcend that of the individual. Another case to consider would be that of the North Koreans. While very little actual information is known, due to extremely heavy censorship on the part of the North Korean government, it has been established that everyone including families are encouraged to spy upon one another. In essence North Korea is a culture dominated by fear and dedication to their leader, currently Kim Jong-un. The government is only interested in its own investments and not its people who are effectively left to starve, as a result said people look for any way they can in order to survive to the next day. Not to mention in a culture whose only existence seems to be to worship its leader, where any hint of dissent is quickly squashed, and its people are constantly fed censored propaganda it is little wonder that there appears to be no sense of privacy for a North Korean. From the outside it appears that any data the North Korean government is obviously modified heavily from the actual data if said actual data actually exists, which makes sense given its heavy propaganda. A national ID identity seems like something that the North Korean government might implement, if they have not already, though it does make me wonder how that might affect the spying that individuals are encouraged to perform on one another. Would a person steal said ID card then frame the owner of something to obtain better living arrangements? From what little I can gather it seems like a likely thing. Germans seem to be relatively similar in regards to the Japanese when it comes to privacy. They have similar mixed gender arrangements though for saunas but are opposed to such things as Google Streetview or airport body scanners. As pointed out by Jeff Jarvis in his

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article about his trip to Germany this is not because of privacy persay but of control. From what I gather Germany doesnt have quite the same disconnect between physical and mental that Japan does but focuses on their individual privacy rights. This may be in part due to Germanys naziphobia, as under a system such as Hitler had there was very little privacy. Quite frankly, it actually reminds me of the situation that North Korea is in now. So, as a result, we appear to have a highly privatized culture that has developed from one that previously was lacking privacy. As such it seems many Germans would be against certain ideas previously discussed. They would not like their information being shared without their consent as seen by medical records and search information, they would probably be for increased encryption though there might be some hesitation as that means pro-nazi groups could operate easier, and I think they might be against the nationalized ID as that also draws parallels to ID numbers given to Jews during the Holocaust. From Etzionis concerns regarding attempting to balance public safety against privacy to Tancers somewhat humorous take on what can be done with simple search trends there are no end to privacy concerns especially when one takes into perspective different cultures. In fact America may even be unique given how many different cultures intermingle within it. Furthermore there are no end to the seeming contradictions to said concerns as seen in both Japan and even America. Granted some cases it is merely the wording of the law that causes a contradiction, such as the case of Massachusetts Court declaring upskirts in public areas such as trains to be legal, but even for situations like that the gears turn towards correcting it. Always the gears turn when it comes to privacy, back and forth, and I think that they will never stop turning. Every generation introduces new challenges to previously established views and it always shall.
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Tancer, Bill (2008-08-18). Click: What Millions of People Are Doing Online and Why It Matters (p. 7). Hyperion. Kindle Edition. Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review, 4 (5), (1890): Retrieved from http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html Etzioni, Amitai. (1999). The limits of Privacy. Basic Books, New York. (Kindle ed.) Tancer, Bill. (2008). Click: What millions of people are doing online and why it matters. Hyperion, New York. (Kindle ed.) William L. Prosser, "Privacy," California Law Review, 48 (1960): Retrieved from http://www.californialawreview.org/assets/pdfs/misc/prosser_privacy.pdf Department of Justice. Highlights of the USA PATRIOT Act. Retrieved from http://www.justice.gov/archive/ll/highlights.htm Jena Baker McNeill and Julian Sanchez. The Patriot Act: Does it actually work? Los Angeles Times. Oct 21, 2009. Retrieved from http://articles.latimes.com/2009/oct/21/opinion/la-oew-mcneil-sanchez21-2009oct21 Ben Swann. Reality Check: Has the Patriot Act thwarted 42 terror attacks? FOX19-WXIX TV. Dec 08, 2011. Retrieved from http://www.fox19.com/story/16214431/reality-check-patriot-act-part-1-has-the-patriotact-thwarted-42-terror-attacks Timothy B. Lee. NSA-proof encryption exists. Why doesnt anyone use it? The Washington Post. June 14, 2013. Retrieved from http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/14/nsa-proof-encryptionexists-why-doesnt-anyone-use-it/ Adams, Andrew A., Kiyoshi Murata, and Yohko Orito. "The Japanese sense of information privacy." AI & society 24.4 (2009): 327-341. Retrieved from http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=12&ved=0CGoQ
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FjAL&url=http%3A%2F%2Fwww.researchgate.net%2Fpublication%2F220414896_The _Japanese_sense_of_information_privacy%2Ffile%2F50463518ad85682e10.pdf&ei=qiY iU5WbCcfkoATmpoHQAw&usg=AFQjCNGw5bRdNEnV_uJqaNJ41kc2kfGm7A&bvm =bv.62922401,d.cGU&cad=rja Hwang Jang Yop. The Problems of Human Rights in North Korea. April 8, 2003. Columbia Law School. Retrieved from http://www2.law.columbia.edu/course_00S_L9436_001/North%20Korea%20materials/h wang%20jang3.html Jeff Jarvis. The German privacy paradox. Feb 11, 2010. BuzzMachine. Retrieved from http://buzzmachine.com/2010/02/11/the-german-privacy-paradox/ Haimy Assefa. Massachusetts court says 'upskirt' photos are legal. March 6, 2014. CNN. Retrieved from http://www.cnn.com/2014/03/05/us/massachusetts-upskirt-photography/

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