The Surveillance Society: Brodsky Plan

to Protect New Yorkers against

Government and Corporate Intrusions
Introduction

The right to privacy is one of the most cherished personal rights in a democracy; it is
imperative that the state protect this right, and that the next Attorney General use the
powers of the office to protect people against intrusions by large corporations and large
governments. Most New Yorkers assume that their traditional anonymity and privacy is
being maintained. Not so. As you drive or walk down public streets, your picture is taken
and data files are maintained. Often the data is stored or sold for commercial purposes.
Governments and corporate knowledge of peoples spending habits, internet use, and
whereabouts are pervasive and growing. Most New Yorkers know little about this and
even less about how to protect themselves from these intrusions.
The AG must be the first protector of the rights of the people. As invasions of privacy
become more the rule rather than the exception, the next Attorney General must lead the
struggle to protect the legitimate privacy interests of all New Yorkers.
There is no doubt that these are complicated issues in a post 9/11 world. The nation’s
attitudes towards personal and national security have in many areas overtaken our
traditional concerns for privacy and liberty. But the bulk of privacy invasions are not for
security reasons, but rather for commercial and governmental uses; it is for this reason
that the next Attorney General must lead.

Background

The information age has forced us to revisit our right to privacy. Technology has been
a force for change, both good and bad. It has connected people around the world and
eased daily life while simultaneously created a potential “surveillance society.” New
technology has resulted in vast networks of cameras on highways monitoring traffic,
allowed online advertisers to monitor and mine a person’s detailed internet activity, and
created law enforcement’s ability to “enter” a home remotely—by thermal heat detectors
and other means.[1] People have begun to feel the impact of these developments.
Professor Alan Westin found that contemporary society has developed a deep concern
over the increasing technological advancements in surveillance because they are contrary
to American’s core privacy values.[2]
The impetus of our privacy concerns stem from a long American tradition of mistrust
of governmental intrusion in individual matters. Technology has allowed government to
intrude into the daily lives of citizens with greater ease. Supreme Court Justice William
Douglas was right when he said, “We are rapidly entering the age of no privacy, where
everyone is open to surveillance at all times; where there are no secrets from
government.”[3] However, that’s only half the story. Technology has allowed private

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corporations to likewise intrude into every aspect of our private lives. Every time you use
a cell phone, go online, use a credit card, and participate in a number of necessary
modern day activities, you give up privacy. As Kevin Bankston, staff attorney, Electronic
Frontier Foundation said, “[online data] is practically a printout of what’s going on in
your brain: What you are thinking of buying, who you talk to, what you talk about… It is
an unprecedented amount of personal information, and these third parties (such as
Google) have carte blanche control over that information.”[4]
As Attorney General, Richard Brodsky will aggressively use the resources of the office
to defend every New Yorker’s right to privacy. Already he has spent a career crusading
against intrusions into the private matters of New Yorkers. He fought for regulations to
include privacy protections in the New York Department of Transportation’s vast
surveillance Closed Circuit Television System in the Hudson Valley—a surveillance
system providing government with the ability to monitor, identify and disseminate
information about individuals on a large-scale. He also passed innovative laws to protect
online privacy rights and he has fought to enshrine privacy rights in the State
Constitution. Recently, he launched an inquiry into the Google Maps feature that allows
users to see 360-degree photographs of a road or avenue. While conducting the maps
survey, the company tapped into unsecured WiFi connections and was able to store e-
mails of unwitting computer users.
The Attorney General’s Office can be a central advocate for increased privacy rights.
From advocating for stronger laws[5] to bringing cases to protect the privacy of New
Yorkers, the Office can be a forceful agent for change.[6] As Attorney General, Brodsky
will continue and have greater focus on protecting the right to privacy of all New
Yorkers.

The Brodsky Roadmap to Protect New Yorkers’ Privacy in the

Information Age

The following is a comprehensive approach to protecting privacy in the Information

Age. It includes statutory and constitutional changes, increased coordination between the
various watch dog agencies and a focus on enforcing current laws to maximize and
protect New Yorkers’ privacy rights.

Enshrining the Right of Privacy in the New York State Constitution

There are many important ways the State and the Attorney General’s office can pursue
to ensure that the right of privacy is protected. The most important is an amendment to
the State Constitution. The State Constitution is a social contract between citizens and the
state. There are certain rights that individuals have that are inalienable and need to be
protected. The state has a constitutional obligation to protect a person’s right to
education, a safe work place, free speech, and other central attributes of personal liberty.
The right to privacy should be added to this list. As Attorney General Richard will
introduce the following text, and see it become part of our constitution, “that the inherent
right of each person to personal privacy shall not be infringed."

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Creation of a Special “Privacy” Task Force in the Attorney General’s Office

In order to facilitate greater cooperation among bureaus within the Attorney General’s
office, Richard Brodsky will create a special Task Force on privacy issues, with a mission
to ensure that all citizens’ rights to privacy are protected.[7] It will coordinate activities
amongst the Internet, Civil Rights, and Anti-Trust Bureaus to create a comprehensive
strategy to protect citizens’ privacy rights; this will culminate with working closely with
the legislative and executive branches to create comprehensive privacy legislation. The
Task Force will also take complaints from individuals who claim privacy right violations
in cooperation with other Bureaus.
The Task Force will be in charge of coordinating statewide the investigation and
prosecution of law enforcement actions involving the Internet, primarily regarding
fraudulent, deceptive, or otherwise illegal conduct occurring online. The Task Force will
field complaints received directly from consumers who visit the Attorney General's
website and respond to inquiries by other bureaus and from other governmental and law
enforcement agencies. The Task Force will also review and prepare legislation where
current laws appear inadequate to address the integration of the Internet into the
marketplace of the 21st century. The Brodsky plan for this new organization within the
AG’s office will help focus on the laws Brodsky himself has already written to ensure
that privacy is maintained.

Better Coordination with Other Agencies

In addition to the creation of the Privacy Task Force within the Attorney General’s
Office, Richard Brodsky will also work closely with the New York State Office of Cyber
Security. The Office of Cyber Security coordinates the State’s cyber incident response
team, monitors the State's networks for malicious cyber activities, coordinates the process
by which State critical infrastructure data is collected and maintained, and leads and
coordinate geographic information technologies.
Chief among the Office of Cyber Security’s responsibilities is to help enforce the
“Security Breach and Notification Act”[9]—a law Assemblyman Brodsky helped
draft[10]. The law requires all state entities – persons or businesses – conducting
business in New York which own or license computerized data that includes private
information to disclose any breach of the data to New York residents. If a breach occurs,
that entity must notify the Attorney General, the Office of Cyber Security and the
Consumer Protection Board. The law was a key in protecting personal privacy; Richard
Brodsky will ramp up such efforts.

Specific Steps to Secure Your Privacy from Corporate Surveillance

As Attorney General, Richard Brodsky will introduce new legislation: the Online
Consumer Protection Act. It will establish rules and privacy policies with respect to how
website publishers and advertising networks collect and disseminate online behavior of

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consumers, while allowing the Internet industry to continue to innovate and stay flexible
in an industry where technology and standards change rapidly. This legislation would:
• Require that consumers are given adequate notice of how advertisers operate.
• Give consumers a clear and conspicuous mechanism on websites to opt-out of
such online advertising.
• Prohibit the use personally identifying information for purposes of advertising.
• Require websites and ad networks to allow individuals to say no to being tracked.
Like the very successful “Do Not Call” Registry, this approach will empower
consumers to make decisions for themselves and their familie

New York has long been a leader in public policy; waiting for other states or for the
Congress to act is not in the best interests of New Yorkers. New York has an obligation
to enact commonsense consumer protections. And once this piece of legislation is
enacted, Richard will utilize all the powers of the Attorney General's office to use this
law as a major tool to protect the privacy of all New Yorkers.

Taking Steps to Secure Your Privacy from Government Surveillance

The state has increasingly used camera systems and other surveillance technologies to
monitor the daily legal activities of its citizens. Where camera systems are increasingly
used in traffic enforcement surveillance and other areas, the State has an obligation to
establish policy in which the public’s right to privacy is protected. As Attorney General,
Richard will work with the legislative branch to pass a bill he drafted while in the
Assembly, the Closed Circuit Television System and Surveillance Personal Privacy Act
(A.1313).
This legislation would apply to all State operated, public authority operated and
municipal operated CCTV systems. It would:
• Limit the focus of CCTV systems to highway and exit roads for the purpose of
traffic management
• Prohibit the CCTV system operator from unwarranted focus on private property
for the purpose of monitoring any activities or persons on such property
• Prohibit a CCTV operator from collecting personally identifying information data,
unless a court order is issued
• Limit the usage of recorded data to transportation planning, traffic management,
and traveler information purposes and ensure that such data is kept in a safe,
secure location for a minimum amount of time.

Vigorously Enforce New York State Privacy Laws

There are various laws on the books that provide privacy protections to New Yorkers –
now they must be vigorously enforced. Like Attorney Generals before him, he will use
traditional statutes like the Deceptive Practices Act under the State General Business Law
to maintain personal privacy protections. But more importantly, as Attorney General,

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Richard Brodsky will tap less used tools such as the Computer Trespass Law. [11] By
enforcing existing checks against governmental and private invasions of privacy,
combined with enforcement of additional new legislation, the Brodsky Administration
can help set a national standard of privacy protection as the information age transforms
how we view the world and how the world can see us.

[1] See Kyllo v. United States, 533 U.S. 27 (2001), holding that “[w]here, as here, the
Government uses a device (i.e. a thermal heat device) that is not in general public use, to
explore details of the home that would previously have been unknowable without
physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable
without a warrant.”

[2]Alan F. Westin. Privacy and Freedom. New York: Athenaeum Press, 1967.

[3] Osborn v. United States, 385 U.S. 323, 341 (1966) (Douglas, J., dissenting).

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[4] Mills, Elinor, “Google balances privacy, reach.” CNET News, (July 14, 2005) at
http://news.cnet.com/Google-balances-privacy,-reach/2100-1032_3-5787483.html.

[5] See “STATE MUST ACT TO PROTECT PRIVACY: Spitzer Urges Legislature to
Do More to Protect Consumers (July 5, 2000) at
http://www.ag.ny.gov/media_center/2000/jul/jul05b_00.html.

[6] See “STATE SETTLES ONLINE PRIVACY CASE: ACLU Takes Steps to
Prevent the Release Personal Data from its Web Site” (August 26, 2003) at
http://www.ag.ny.gov/media_center/2003/jan/jan14a_03.html, announcing an
agreement with the American Civil Liberties Union that will help protect consumers from
exposure of personal data from the organization’s web site.; See also “MAJOR
ONLINE ADVERTISER AGREES TO PRIVACY STANDARDS FOR ONLINE
TRACKING: Company to Increase Visibility and Verify Data Collection Practices”
(March 13, 2006) at http://www.ag.ny.gov/media_center/2002/aug/aug26a_02.html,
announcing a settlement with the nation’s leading Internet advertising service that sets a
new standard for consumers’ online privacy. Under its agreement with New York and the
other states, Manhattan-based DoubleClick Inc. will use its clients' privacy policies to
make its tracking activities more visible and will give consumers access to their online
profiles. Terms of the settlement include provisions requiring DoubleClick to provide
independent verification of its compliance with the agreement and to pay the states
$450,000 for investigative costs and consumer education; and “INVESTIGATION
REVEALS MASSIVE PRIVACY BREACH: Internet Marketer Agrees to New
Standard for Purchase of Personal Info from List Builders” at
http://www.ag.ny.gov/media_center/2006/mar/mar13a_06.html announcing
settlement to address what may have been the largest breach of privacy in internet
history.

The settlement with Datran Media, a leading e-mail marketer, follows an investigation
that identified the improper disclosure of the personal information of more than six
million American consumers.

[7] The creation of specialized task forces within the Attorney General’s Office
has demonstrated innovative results. For instance, the creation of the “Health Care
Industry Task Force” has resulted in nationwide reforms in the health care industry. See
http://www.ag.ny.gov/bureaus/health_care/HIT2/about.html.

[8]See the Office of Attorney General’s website at

http://www.ag.ny.gov/bureaus/internet_bureau/protecting_your_privacy_online.html.
Here they have various tips and guides for consumers to protect online privacy.

[9] See State Technology Law (Section 208) and the General Business Law (Section 899-
aa).

[10] See Assembly bill 9431-A of 2004.

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[11] See NYS Penal Law § 156.10.

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