Oral Argument on DNA Searches Provides Scary Glimpse Into the Future of Privacy
By Hanni Fakhoury | EFF | March 4, 2013
The Supreme Court recently heard oral argument in Maryland v. King, a case considering the constitutionality of warrantless DNA collection from arrestees. We’ve long warned about the privacy problems with the rise of cheap, easy and fast blanket DNA collection, and filed an amicus brief with the Court urging it to hold the government can only obtain this sensitive genetic material with a search warrant. While it can be fruitless trying to read the tea leaves of oral argument, one specific idea — that technological advances making DNA analysis faster means warrantless collection may be OK — should leave you worried about the fate of privacy going forward in the digital age.
One of the main disagreements surrounding the issue of DNA collection is whether the state is collecting DNA from arrestees for immediate identification — to figure out if they’ve arrested the right person and learn who that person is for purposes of making a bail determination — or for past and future investigation — to solve cold cases and to store DNA for future searches. The state has long claimed they used DNA for both, while we’ve argued the government simply isn’t able to use DNA collection for immediate identification purposes since there’s currently a delay in analyzing DNA ranging from several days up to a few months. But with the rise of rapid DNA analyzers which can analyze DNA in 90 minutes, law enforcement is chomping at the bit to purchase and install these devices at police stations across the country. When the lawyer challenging the blanket DNA collection argued that law enforcement’s interest in using DNA for immediate identification was simply not possible because of the lengthy delays in DNA analysis, Chief Justice Roberts interrupted to note (PDF):
Now, your brief says, well, the only interest here is the law enforcement interest. And I found that persuasive because of the concern that it’s going to take months to get the DNA back anyway, so they are going to have to release him or not before they know it. But if we are in a position where it now takes 90 minutes or will soon take 90 minutes to get the information back, I think that’s entirely different…
Other members of the court echoed this idea, hinting that if DNA analysis was done faster, than there could be a legitimate identification — as opposed to investigative — need for the practice. And if that was the case, then DNA collection was no different than fingerprinting, and the police could swab and collect DNA without a search warrant. This would be a dangerous Fourth Amendment precedent.
The reasonableness of a search under the Fourth Amendment has always depended on whether the search is reasonably related in scope to the circumstances that justify the search in the first place. But that determination shouldn’t hinge on how long it takes to do the search, but rather what the search reveals. And with DNA searches, an enormous amount of sensitive information is being revealed to the government: a person’s entire genome. Ignoring the breadth of this intrusion by focusing on the ease of collection — implicitly believing the easier it is to intrude into a private place, the less protected it is — elevates form over substance to the detriment of the right of privacy enshrined in the Fourth Amendment.
This dangerous thinking extends beyond DNA collection. We’ve already warned about the problems with warrantless home video surveillance and stingrays, or fake cell phone towers which the government has been very secretive about. As technological advances like these allow the government to easily collect and catalog greater amounts of information, courts run the risk of allowing broader and more intrusive searches to pass Fourth Amendment scrutiny simply because of the possibility of exposure. Instead, courts should be focusing on the actual intrusion and people’s expectation that private information will not be exposed, regardless of how technological advances can make government access easier or faster.
The fact the government can do something now it couldn’t do before doesn’t make it constitutional. In fact, it should be the opposite. As it becomes easier for the government to seize and analyze, institutional checks — like a search warrant — on the government’s power is necessary to protect privacy before it becomes a casualty to technological advances.
Related article
Google faces UK class action over secret iPhone tracking
RT | January 28, 2013
Google is embroiled in its biggest privacy battle yet in the UK over reportedly tracking users’ online habits. At least 10 UK citizens began legal action with dozens more lining up. According to media estimates up to 10 million Britons could join in.
Google is accused of evading security settings on Apple’s devices and Safari’s web browser in order to keep tabs on people’s online preferences.
This is the first group claim over privacy issues that the tech-giant is facing in the UK, the lawyer behind the action Dan Tench told The Guardian.
“It is particularly concerning how Google circumvented security settings to snoop on its users. One of the things about Google is that it is so ubiquitous in our lives and if that’s its approach, then it’s quite concerning,” Tench said.
On top of that there are plans in the works to launch an umbrella privacy action suit, which could potentially bring in millions of people in the UK.
Google executives reportedly received a letter from two users prior to the launch of legal proceedings.
The tech-giant is being sued for breaches of privacy and confidence, computer misuse and trespass, and breach of the Data Protection Act of 1998.
Claimants want Google to reveal how much data was secretly collected, for how long, and how the information is being used.
The point of the claim is not to make money off Google, but to send a message, argued a privacy campaigner working on the legal claims, Alexander Hanff.
“This lawsuit is about sending a very clear message to corporations that circumventing privacy controls will result in significant consequences. The lawsuit has the potential of costing Google tens of millions, perhaps even breaking 100 million pounds [US$15.7 million] in damages given the potential number of claimants – making it the biggest group action ever launched in the UK,” Hanff says.
Some users responded by creating a Facebook group titled ‘Safari Users against Google’s Secret Tracking’ to gather support for the new claims against Google. The page promises to hold Google responsible for any privacy breaches.
The group was set up “to provide information for anyone who used the Safari internet browser between September 2011 and February 2012, and who was illegally tracked by Google,” reads the group’s statement. “Any users in the UK may have a claim against Google for this breach of their privacy. Other users, who have set up this group, are taking action against Google to hold them to account.”
The page was created only a day ago, but it already garnered over one hundred ‘likes’.
One Facebook user, Vitor Costa, commented on the secrecy aspect behind Google’s privacy breaches, questioning “what they are doing with this information.”
The legal action follows a US ruling that approved a $22.5 million fine to penalize Google for a privacy breach between summer 2011 and spring 2012. The fine resulted after allegations that Google secretly kept tabs on millions of Safari web users, while leading them to believe that their online activities could not be traced as long as they did not change the browser’s privacy settings.
The FTC came to the conclusion that Google’s stealth tracking (which allowed the company to bypass Safari’s settings) contradicted its own privacy assurances.
Google is not new to privacy violation accusations. In the past it faced many allegations such as, keeping tabs on Wi-Fi users with its StreetView cars and privacy failures of the Google’s previous social network, Google Buzz.
Also, European Union lawmakers have been continuing to pressure Google to boost personal security controls and limit the collection of data without users consent.
But new Google services such as Conversations API, which merges offline consumer info with online intelligence, allowing advertisers to target users based on what they do at the keyboard and at the mall, only raise more privacy-based questions.
Related article
- Google faces legal action over alleged secret iPhone tracking (guardian.co.uk)
US: Congress Trying to Fast-Track Domestic Drone Use, Sideline Privacy
ACLU | February 6, 2012
Congress is poised to give final passage to legislation that would give a big boost to domestic unmanned aerial surveillance — aka “drones.”
As we explained in our recent report, drone technology is advancing by leaps and bounds, and there is a lot of pent-up demand for them within the law enforcement community. But, domestic deployment of unmanned aircraft for surveillance purposes has largely been blocked so far by the Federal Aviation Administration (FAA), which is rightly concerned about the safety effects of filling our skies with flying robots (which crash significantly more often than manned aircraft).
As we also explained in our report, the FAA is under pressure to loosen the reins and permit broader deployment of drones by government agencies.
One result of that pressure is this legislation (H.R. 658 — see conference report for more details), which authorizes appropriations for the FAA through fiscal 2014. Unfortunately, nothing in the bill would address the very serious privacy issues raised by drone aircraft. This bill would push the nation willy-nilly toward an era of aerial surveillance without any steps to protect the traditional privacy that Americans have always enjoyed and expected.
Congress — and to the extent possible, the FAA — need to impose some rules (such as those we proposed in our report) to protect Americans’ privacy from the inevitable invasions that this technology will otherwise lead to. We don’t want to wonder, every time we step out our front door, whether some eye in the sky is watching our every move.
On Friday, the House gave final passage to the legislation. House approval came on a quite partisan vote, with most Republicans in favor and most Democrats opposing. The Senate is scheduled to take up the bill later today.
Here are details on what the bill would do in terms of drones:
- Require the FAA to simplify and speed up the process by which it issues permission to government agencies to operate drones. It must do this within 90 days. The FAA has already been working on a set of proposed regulations to loosen the rules around drones, reportedly set for release in the spring of 2012.
- Require the FAA to allow “a government public safety agency” to operate any drone weighing 4.4 pounds or less as long as certain conditions are met (within line of sight, during the day, below 400 feet in altitude, and only in safe categories of airspace).
- Require the FAA to establish a pilot project within six months to create six test zones for integrating drones “into the national airspace system.”
- Require the FAA to create a comprehensive plan “to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.” “Civil” drones means those operated by the private sector; currently it is all but impossible for any non-government entity, except for hobbyists, to get permission to fly drones (for-profit use of drones is banned). Industry groups and their congressional supporters see this as a potential area for growth. Congress specifies that the plan must provide for the integration of drones into the national airspace system “as soon as practicable, but not later than September 30, 2015.” The FAA has nine months to create the plan. The FAA is also required to create a “5-year roadmap for the introduction” of civil drones into the national airspace.
- Require the FAA to publish a final rule within 18 months after the comprehensive plan is submitted, “that will allow” civil operation of small (under 55 pounds) drones in the national airspace, and a proposed rule for carrying out the comprehensive plan.
The bottom line is: domestic drones are potentially extremely powerful surveillance tools, and that power — like all government power — needs to be subject to checks and balances. We hope that Congress will carefully consider the privacy implications that this technology can lead to.
The Right to Anonymity is a Matter of Privacy
By Jillian C. York | EFF | January 28, 2012
This January 28 marks International Privacy Day. Different countries around the world are celebrating this day with their own events.
Throughout history, there have been a number of reasons why individuals have taken to writing or producing art under a pseudonym. In the 18th century, James Madison, Alexander Hamilton, and John Jay took on the pseudonym Publius to publish The Federalist Papers. In 19th century England, pseudonyms allowed women–like the Brontë sisters, who initially published under Currer, Ellis, and Acton Bell–to be taken seriously as writers.
Today, pseudonyms continue to serve a range of individuals, and for a variety of reasons. At EFF, we view anonymity as both a matter of free speech and privacy, but in light of International Privacy Day, January 28, this piece will focus mainly on the latter, looking at the ways in which the right to anonymity–or pseudonymity–is truly a matter of privacy.
Privacy from employers
Human beings are complex creatures with multiple interests. As such, many professionals use pseudonyms online to keep their employment separate from their personal life. One example of this is the Guardian columnist GrrlScientist who, upon discovering her Google+ account had been deleted for violating their “common name” policy, penned a piece explaining her need for privacy. Another example is prominent Moroccan blogger Hisham Khribchi, who has explained his use of a pseudonym, stating:
When I first started blogging I wanted my identity to remain secret because I didn’t want my online activity to interfere with my professional life. I wanted to keep both as separate as possible. I also wanted to use a fake name because I wrote about politics and I was critical of my own government. A pseudonym would shield me and my family from personal attacks. I wanted to have a comfortable space to express myself freely without having to worry about the police when I visit my family back in Morocco.
Though Khribchi’s reasoning is two-fold, his primary concern–even stronger than his need for protection from his government–was keeping his online life separate from his employment.
Privacy from the political scene
In 2008, an Alaskan blogger known as “Alaska Muckraker” (or AKM) rose to fame for her vocal criticism of fellow Alaskan and then-McCain-running-mate Sarah Palin. Later, after inveighing against a rude email sent to constituents by Alaska State Representative Mike Doogan, AKM was outed–by Doogan–who wrote that his “own theory about the public process is you can say what you want, as long as you are willing to stand behind it using your real name.”
AKM, a blogger decidedly committing an act of journalism, could have had any number of reasons to remain anonymous. As she later wrote:
I might be a state employee. I might not want my children to get grief at school. I might be fleeing from an ex-partner who was abusive and would rather he not know where I am. My family might not want to talk to me anymore. I might alienate my best friend. Maybe I don’t feel like having a brick thrown through my window. My spouse might work for the Palin administration. Maybe I’d just rather people not know where I live or where I work. Or none of those things may be true. None of my readers, nor Mike Doogan had any idea what my personal circumstances might be.
Though Doogan claimed that AKM gave up her right to anonymity when her blog began influencing public policy, he’s wrong. In the United States, the right to anonymity is protected by the First Amendment and must remain so, to ensure both the free expression and privacy rights of citizens.
Similarly, in 2009, Ed Whelans, a former official with the Department of Justice, outed anonymous blogger John Blevins–a professor at the South Texas College of Law–in the National Review, calling him “irresponsible”, and a “coward.” Blevins took the fall gracefully, later explaining why he had chosen to blog under a pseudonym. Like Khribchi, Blevins’ reasons were numerous: He feared losing tenure and legal clients, but he also feared putting the jobs of family members in the political space at risk.
Privacy from the public eye
A friend of mine–let’s call him Joe–is the sibling of a famous celebrity. But while he’s very proud of his sibling, Joe learned early on that not everyone has his best interests at heart. Therefore, Joe devised a pseudonym to use online in order to protect the privacy of himself and his family.
In Joe’s case, the threat is very real: celebrities are regularly stalked, their houses broken into. His pseudonym keeps him feeling “normal” in his online interactions, while simultaneously protecting his sibling and the rest of his family from invasions of privacy.
Achieving anonymity online
Anonymity and pseudonymity may seem increasingly difficult to achieve online. Not only do companies like Facebook restrict your right to use a pseudonym, but even when you do think you’re anonymous, you might not be–as blogger Rosemary Port found out in 2009 after Google turned over her name in response to a court order.
While we should continue to fight for our privacy under the law, the best thing we can do as users to who value our right to anonymity is to use tools like Tor. Anonymous bloggers can use Global Voices Advocacy’s online guide to blogging anonymously with WordPress and Tor. And all Internet users should educate themselves about what is–and isn’t–private on their online accounts and profiles.
Related articles
- International Privacy Day: Fighting Data Retention Mandates Around the World (alethonews.wordpress.com)
- Google And Privacy: Nothing To See Here, Move On (informationweek.com)
- Google shifts stance on Google+ anonymity, will support pseudonyms (arstechnica.com)
- Google Says Bye Bye to User Privacy (forbes.com)
- Google+ relaxes real-name policy, allows pseudonyms (plus.google.com)
International Privacy Day: Fighting Data Retention Mandates Around the World
By Katitza Rodriguez | EFF | January 24, 2012
This January 28 marks International Privacy Day, the day that the first legally binding international privacy treaty was opened for signature to Member States in January 28, 1981. Different countries around the world are celebrating this day with their own events. This year, we are honoring the day by calling attention to recent privacy threats around the world and describing a few of the available tools that allow individuals to protect their privacy and anonymity.
Today, we are calling on governments to repeal mandatory data retention schemes. Mandatory data retention harms individuals’ anonymity, which is crucial for whistle-blowers, investigators, journalists, and for political speech. It creates huge potential for abuse and should be rejected as a serious infringement on the rights and freedoms of all individuals.
It has been six years since the highly controversial Data Retention Directive (DRD) was adopted in the European Union. Conceived in the EU and steamrolled by powerful U.S. and U.K. government lobbies, this mass-surveillance law compels EU-based Internet service providers to collect and retain traffic data revealing who communicates with whom by email, phone, and SMS, including the duration of the communication and the locations of the users. This data is often made available to law enforcement. Europeans have widely criticized the DRD, and year after year, it has inspired some of the largest-ever street protests against excessive surveillance.
The European Commission has begun mounting a defense for this highly controversial mass-surveillance scheme, though they have thus far been unable to show that the DRD is necessary or proportionate. For the DRD to be legal in the EU, any limitation to the right to privacy mustbe “necessary” to achieve an objective of general interest and “proportionate” to the desired aim. This requirement is important to ensure that the government does not adopt severe measures to address a problem that could be otherwise solved in a way that is less harmful to civil liberties. But the Commission has been arguing that all uses of retained data illustrate that the Directive is “valuable.” This doesn’t meet the legal standard. Instead, the Commission should provide evidence that in the absence of a mandatory data retention law, traffic data crucial to the investigation of “serious crime” would not have been available to law enforcement.
Despite the European Commission’s efforts to preserve the Directive as-is, a leaked letter confirms that the Commission has been scrambling to conjure evidence for the “need” of a DRD scheme in the European Union. It also underscores the fact that there is no system of oversight that would allow citizens to monitor the impact of the proposed program on their privacy rights. Perhaps the most disquieting detail that has been confirmed by the letter is that service providers have already been storing instant messages, chats, uploads, and downloads. This type of data collection falls outside the scope of the DRD. Moreover, the letter indicates that “unnamed” players seek to broaden the uses of the DRD to include prosecution of copyright infringement including “illegally downloading.” Since this is not a serious crime, this legally falls outside the scope of the DRD.
In response to this leak, EDRI stated, “The leaked document however shows that the Commission can neither prove necessity nor proportionality of the Data Retention Directive – but still wants to keep the Directive.” The leaked letter also disclosed that the EU Commission is evaluating the possibility of amending the Directive. The Commission has commissioned a study into data preservation in the EU and around the world. According to the letter, this exercise is to be completed by May 2012.
Ending Data Retention: Constitutional Challenges
Constitutional courts have begun weighing in on the legality of this mass-surveillance scheme. In a decision celebrated by privacy advocates, the Czech Constitutional Court declared in March 2011 that the Czech data retention law was unconstitutional. Earlier this month, the same Court dealt another blow to data retention by annulling part of the Criminal Procedure Code, which would have enabled law enforcement access to data stored voluntarily by operators. Most importantly, the Czech Court used compelling language in articulating the importance of the protection of traffic data. The Court stated that the collection of traffic data and communication data warranted identical legal safeguards since both have the same “intensity of interference”.
We couldn’t agree more. Sensitive data of this nature demands stronger protection, not an all-access pass. Individuals should not have to worry whether one sort of private information has less protection than another.
Jan Vobořil of Iuridicum Remedium, which led the legal complaint against the Czech data retention law, told EFF:
I believe that both decisions will help ensure that new legislation enforces the same restrictions as exist for use of wiretap. These include strong privacy safeguards for government access to citizen’s data, the obligation to inform individuals about the use of their data, and so on.
Several other courts in EU member states have also ruled on the illegality of data retention laws. Earlier in 2009, the Romanian constitutional Court rejected the imposition of an ongoing, sweeping traffic data retention program. The Court rightly emphasized that mandatory data retention overturns the presumption of innocence in a way that treats all Romanians like potential suspects. Despite this court decision, a new draft data retention bill was introduced in the Parliament, but the Senate finally rejected it at the end of 2011.
In March 2010, the German Court declared unconstitutional the German mandatory data retention law. The Court ordered the deletion of the collected data and affirmed that data retention could “cause a diffusely threatening feeling of being under observation that can diminish an unprejudiced perception of one’s basic rights in many areas.” The lawsuit was brought on by 34,000 citizens through the initiative of AK Vorrat, the German working group against data retention.
Over in Ireland, the Court is referring to the European Court of Justice the case challenging the legality of the DRD, thanks to the complaint brought by Digital Rights Ireland. The Irish Court acknowledged the importance of defining “the legitimate legal limits of surveillance techniques used by governments”, and rightly emphasized that “without sufficient legal safeguards the potential for abuse and unwarranted invasion of privacy is obvious”. The Courtsin Cyprus and Bulgaria have also declared their mandatory data retention laws unconstitutional.
The DRD compels EU member countries to implement the Directive into national law. Fortunately, many member states have not yet done so. The Czech Republic, Germany, Greece, Romania, and Sweden have not adopted this piece of legislation, despite pressure from the European Commission to do so. In Austria, the data protection law will take effect in April 2012. AK Vorrat Austria plans to use all legal means to challenge the legality of the DRD. They have also handed over a petition to the Austrian Parliament asking the government to fight against the DRD at the EU level and to review all existing anti-terror legislation. (If you are Austrian, sign the petition today at zeichnemit.at.) In Slovakia, the NGO European Information Society Institute is opposing the Slovakian data retention implementation law.
Meanwhile, civil society groups are resisting and campaigning against this oppressive data retention law. EDRI, along with EFF and AK Vorrat, has fought to repeal the DRD in favor of targeted collection of traffic data. EDRI has previously reported that Deutsche Telekom, a German telco, illegally used telecommunications traffic and location data to spy on roughly 60 individuals including journalists, managers, and union leaders. They also reported that two major intelligence agencies in Poland used retained traffic and subscriber data to illegally disclose journalistic sources without any judicial oversight. These are only a few examples in which data retention policies have directly threatened individuals’ expression and privacy rights.
The DRD is a threat to Internet privacy and anonymity, and has been proven to violate the privacy rights of 500 million Europeans. EFF, together with EDRI, will keep fighting to repeal the DRD in favor of targeted collection of traffic data.
Mandatory Data Retention in the United States
Two bills introduced in the U.S. Congress in 2009 would have required all Internet providers and operators of WiFi access points to keep records on Internet users for at least two years to assist police investigations. Neither bill became law. Some legislators and law enforcement officials continue to argue, however, that mandatory data retention is necessary to investigate online child pornography and other Internet crimes. In January 2011, the U.S. House of Representatives Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing that discussed whether Congress should pass legislation that would force ISPs and telecom providers to log Internet user traffic data. In May 2011, H.R. 1981, which would require retention of such traffic data, was introduced in the House of Representatives. This bill is still alive and continues to be a threat to the privacy and anonymity of all Americans. EFF has joined civil liberties and consumer organizations in publicly opposing H.R. 1981. Please join EFF, and help us defeat this bill before it is made law. Contact your Representative now.
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From the Archives
British propaganda campaign incited mass slaughter of communists in Indonesia in 1960s, declassified papers reveal
RT | October 17, 2021
British spies played a part in the mass murder of Communist Party of Indonesia (PKI) members in the 1960s, urging locals, including army generals, to “cut out” the “communist cancer,” declassified papers have revealed.
The Indonesian Army’s brutal clampdown on the PKI in 1965 and 1966 is considered to be one of the worst mass murders of the 20th century. Between 500,000 and three million supporters of the Communist Party were slaughtered, according to various estimations.
Declassified Foreign Office documents, which were recently released by Britain’s National Archives and seen by The Guardian newspaper, indicate that the UK isn’t without fault in those shocking events.
The British Foreign Office had always denied the country’s involvement in the brutal clampdown on those blamed of communist links in Indonesia. … continue
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