Privacy: The Right to be Left Alone

August 12, 2012

According to a national poll sample [approximately 1,700 people] taken by Monmoth College, " An overwhelming majority of Americans support the idea of using drones [flying "armed robots"] to help with search and rescue missions (80%). Two-thirds of the public also support using drones to track down runaway criminals (67%) and control illegal immigration on the nation’s border (64%). One area where Americans say that drones should not be used, though, is to issue speeding tickets. Only 23% support using drones for this routine police activity while a large majority of 67% oppose the idea. " http://spectrum.ieee.org/automaton/robotics/military-robots/poll-shows-concern-about-drones-and-domestic-surveillance

Peter Singer, in his New York Times piece, "Do Drones Undermine Democracy?" (http://www.nytimes.com/2012/01/22/opinion/sunday/do-drones-undermine-democracy.html?pagewanted=print) points out that drone technology ( or in military jargon, "unmanned aerial systems") has raised important questions about the division of powers between the Congress and the President: "In America, our Constitution explicitly divided the president’s role as commander in chief in war from Congress’s role in declaring war. Yet these links and this division of labor are now under siege as a result of a technology that our founding fathers never could have imagined." Singer goes on to comment that,"... now we possess a technology that removes the last political barriers to war. The strongest appeal of unmanned systems is that we don’t have to send someone’s son or daughter into harm’s way. But when politicians can avoid the political consequences of the condolence letter — and the impact that military casualties have on voters and on the news media — they no longer treat the previously weighty matters of war and peace the same way." He comes concludes, "The Constitution did not leave war, no matter how it is waged, to the executive branch alone. In a democracy, it is an issue for all of us."

Rich Lowry, Editor of the National Review points out that, "Drones will no doubt raise novel issues under the Fourth Amendment, which prohibits unreasonable search and seizure. They will require rules. The same is true of any technology, of course. The Supreme Court held unanimously earlier this year that police can't attach a GPS tracker on someone's vehicle without a warrant. This isn't reason to ban all use of GPS trackers by law enforcement. The fear of drones is, in part, the fear of the new -- it is Luddism masquerading as civil libertarianism. " (Luddism is a perjorative term for folks who act like the Luddites of the nineteeth century destroying the new technology of the industrial revolution which threatend their livelhoods ). Lowry further states, "The influential conservative columnist Charles Krauthammer wants drones banned domestically and thinks the first American to shoot one down will be declared a national hero. Sen. Rand Paul considers them a clear and present danger to American freedom and is offering legislation to require a warrant every time one takes flight, except to patrol the border or in extraordinary circumstances. The drone is to our liberty what the wolf is to sheep, a natural enemy." http://newsok.com/rich-lowry-the-great-drone-panic/article/3691059#ixzz20FqmvhzD

From the Reason Online blog, Calvin Thompson opines, "It is a stretch to think that the same federal government that gave us the PATRIOT Act, the TSA, and the indiscriminate drone attacks on civilians in the Middle East would even think twice about violating domestic privacy rights." (http://reason.com/blog/2012/07/10/drone-code-of-conduct-says-and-accomplis)

Apparently this seems to be an isssue that Progressives and Libertarians can find common ground as both place a premium on individual rights including Privacy --- the right to be left alone.

"Watchbirds", a short story by Robert Sheckley written over fifty years ago, addresses this issue. Watchbirds were like our drones taken to the next level: they were equipped with learning circuitry which allowed them to discern when a crime was about to take place and could deliver a taser-like jolt to the would-be perpetrator thus preventing the intended crime. When one Watchbird learned something new ­-- it was automatically transferred to the whole flock so they became better and better at detecting and stopping crimes like murder until they began zapping fishermen who they had inferred were murdering the fish. I won't spoil where this goes --- I'll only reveal that the outcome is much much worse than anything the pundits or the politicians have mentioned. Read the story at: http://www.gutenberg.org/files/29579/29579-h/29579-h.htm

Intellectual Property: Part 2

I ended last month's column Intellectual Property Part 1 with the (I hope) provoking and suspenseful segue: Next time: Why indeed pick on poor Joel --- the pros and cons of file “sharing”.

To briefly review, I referenced the article in the the May 22 Press Republican, “ Court won’t reduce student’s $675,000 music download fine”about the student, Joel Tenenbaum who was busted  for illegally downloading 30 songs. I also briefly discussed the concept of ownership citing the differing philosopies of Plato and Aristotle: Plato believed that private property served to divide, not unite humanity while Aristotle thought private ownership of any property was only the fair outcome and  reward of an individual’s labor. But these are both Western viewpoints.

There also exists a completely different  Eastern view:  " Brahmanist philosophy called Vedanta believes that ownership arises due to the sense of being separated from the rest of the universe[citation needed]. When one suffers under the illusion that one is separate from the rest of the universe, ownership is one of the ways one might attempt to reconnect with "other" objects. Vedanta believes that ownership is an illusion which persists as long as the belief in separation from the Universe persists. When one understands the fundamental reality that there is only one entity called the Universe, one is freed of the illusion of ownership.”  (http://en.wikipedia.org/wiki/Ownership) While this more oceanic view certainly disposes of the ownership issue it is ,unfortunatelty, not a useful solution to Joel's dilemma in a society of constitutional capitalism.

In order to examine this issue we first need a more precise definition of  "file sharing" and fortunately Wikipedia is ready to help: "File sharing is the practice of distributing or providing access to digitally stored information, such as computer programs, multimedia (audio, images and video), documents, or electronic books. It may be implemented through a variety of ways. Common methods of storage, transmission and dispersion include manual sharing utilizing removable media, centralized servers on computer networks, World Wide Web-based hyperlinked documents, and the use of distributed peer-to-peer networking. (source: http://en.wikipedia.org/wiki/File_sharing). I don't want to get into the technical details of what a "centralized server" or a "Peer to Peer" (often denoted as P2P --- cute huh?) network is but, again, the Wikipedia site is an excellent source if you have a computer connected to the world wide web (often denoted as WWW;)

A fairly comprehensive anecdotal and annotated investigation of the pros and cons of file sharing with the focus on music files by Keith Jenci can be found at http://www.mredkj.com/other/sharing.html. On the Pro side he lists, "MP3s (MP3 is a computer format for an audio file) are not a physical thing, so no actual value is lost by "stealing" a song.", to "Many artists support file sharing (it increases sales)". On the Con side: "Music is worth the money, and many CDs are reasonably priced." to "Struggling artists are losing out".

A more structured and insightful discussion of the issue is by Michael J. Quinn in his book, "Ethics for the Information Age". Quinn and many others view music as "intellectual property" and, as such, is afforded the legal protections that all property gets. He defines Intellectual Property as:  “Any unique product of the human intellect that has commercial value. Examples of intellectual property are books, music, movies, plays, paintings, chemical formulas, and computer software.”.  An example of the conflict between property rights and freedom of expression is called “music piracy ‘ by the recording industry  and is called “file sharing” by millions of Internet users. If I own a music file on my computer why can’t I share it with a friend? “Because it is intellectual property covered by copyright law and sharing it is theft.” is the response of the recording industry. As the speed and capacity of the Internet expands this problem has only grown worse.

But what about poor Joel? Well, he did break the law and I think some punishment is in order here --- but not a fine of  almost one million dollars --- perhaps a community service speaking to students would be more appropriate and more useful. If you want to help him, try this link: http://joelfightsback.com/  Or not.

Intellectual Property Part 1

Perhaps you read, as I did, the article in the in the May 22 Press Republican, “ Court won’t reduce student’s $675,000 music download fine” by AP Legal Affairs Writer Denise Lavoie.  Perhaps you wondered why Joel Tenenbaum, the student referred to in the headline was fined such a large amount for illegally downloading 30 from a file system shared by thousands of others.  Why pick on poor Joel, and  why so large a fine?  The detailed history of  the lengthy and complicated trial proceedings between the plaintiff recording companies (Sony, Warner Bros., etc) and Tenenbaum can be found at: http://en.wikipedia.org/wiki/Sony_BMG_v._Tenenbaum . It’s an extensive and interesting story that begins with the concept of ownership.

The concept of  ownership is ancient and complicated but we can begin by noting that it was discussed by both Plato and Aristotle about 2300 years ago who had opposing views on the matter. Plato believed that private property served to divide, not unite humanity while Aristotle thought private ownership of any property was only the fair outcome and  reward of an individual’s labor --- and not much has changed since then. Whether you side with Plato or his student, Aristotle, regarding intellectual property like music, books and movies, the current copyright laws side with Aristotle.                                                                                                                                                                                              

The Constitution of the United States under Article 1, Section 8 grants “The Congress the right to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This clause  is usually interpreted as attempting to synthesize and reconcile the philosophies of Plato and Aristotle by recognizing the individual rights of the inventor or creator whilst balancing them with the overall benefits for society. It seems to be a recognition that we all need each other not just to advance civilization, but for survival itself: “United we Stand, Divided we Fall”.

Even before the USA existed, there existed copyright laws in Britain due perhaps to the philosophy of John Locke who makes a strong case for a natural right to private property. He claimed that “people have a right to those things which they have removed from Nature through their own labor.”  This means that whether I have cleared the land myself or sold my grain to attain money to buy the land, I have a natural right to own the land --- and you do not.  In his book, “Common as Air: Revolution, Art and Ownership” author Lewis Hyde points out, “The very first copyright law (Britain’s 1710 Statute of Anne) gave ‘the Authors and Proprietors of books exclusive rights to their works for as long as twenty-eight years, provided that they paid a sixpenny fee and listed their works ‘in the Register-Book of the Company of Stationers.’”

The limited term of ownership under the copyright laws of the United States has increased since the original Copyright Act of 1790 where the term was specified as  fourteen years with the possiblity of extending for another fourteen years if the copyright holder was still living. However the term of ownership has inched up since then, culminating in the  Copyright Term Extension Act  of 1998. This Act extended the terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever is earlier. This act has been dubbed  the Sonny Bono Act or as the Mickey Mouse Protection Act. And, yes, this was the Bono of the“Sonny and Cher” song team of the sixties and seventies and yes, the Walt Disney Corporation was a prime factor in the passage of the Act as their copyright of the Mickey Mouse logo was due to expire shortly and not only are lobbies legal in the US, corporations have recently been promoted to people. Perhaps Plato was right after all.

Next time: Why indeed pick on poor Joel --- the pros and cons of file “sharing”

Computer Games

The main title immediately caught my eye: “The Hyperaddictive, Time-Sucking,
Relationship-Busting, Mind-Crushing Power and Allure of Silly Digital Games”
but the alternate title, “Just One More Game ...Angry Birds, Farmville and Other
Hyperaddictive ‘Stupid Games’ clinched the deal. I had to read the article in
the April 4, 2012 edition of the New York Times Magazine by Sam Anderson.
(http://www.nytimes.com/2012/04/08/magazine/angry-birds-farmville-and-other-
hyperaddictive-stupid-games.html?ref=magazine)

I was hooked because I’ve always had this love/fear relationship with games and
especially computer games. The attraction came from the addiction and so did the fear.
In 1982 I presented a paper at the National Education Computer Conference in Kansas
City entitled, “A Call for the Study of Computer Games” in which I attempted to make a
positive case for them (they improve eye-hand coordination thus improving the chances
of your son growing up to be a fighter pilot) and to try to categorize them according to
their structure (learning games for teaching reading or math, board games like chess and
checkers, adventure games like Dungeons and Dragons, etc.) Nowadays, there are games
and simulations that are smarter, faster and prettier.

Back then, the most interesting and exciting computer games existed in video arcades
in malls. I fed many a quarter into single-purpose computing machines that allowed
me to play Space Invaders and Asteroids (Pac Man never grabbed me). As computer
technology improved and become less costly, these and newer games migrated to
personal computers made by IBM, Radio Shack, Apple and Microsoft Corporations. By
this time I was wary of seductive power of computer games. As a graduate student in the
mid seventies at the University of Massachusetts, I designed and developed a Computer
Managed Instruction system pretentiously named “ACCOLADE” --- an acronym for: An
Alternative Curriculum for Computer Literacy Development. Definitions of “computer
literacy” can range from: “the ability to tell a computer from a horse” to “highly
developed skills in the art of programming plus broad and deep knowledge in the areas of
history, applications, social issues, hardware and software”. I chose the latter.

After a hard day of building and testing ACCOLADE, I relaxed by using my state-of-the-
art Plato computer (it had a pixel resolution of 512 by 512 ) to play one of the very first
games on a very early version of the Internet --- only about a dozen nodes. “Empire”
was a graphical multi-user game with a simple premise: Conquer the Universe. You
joined a team of geographically distributed users (aptly named Terrans, Klingons, etc)
and with combined recourses (spaceships loaded with armies and various weapons)
attempted to accomplish the goal of Universal Domination. When this was achieved by
one of the teams, the game was reset and another 24 hours of play began. As a newbie, as
soon as I entered the game I was quickly dispatched by a seasoned player so it was not
much fun. In desperation, I sent out a message to all players, “New player needs help,
please be gentle”. Almost immediately I got a response, “I can help” and they proceeded

to put me in “tractor orbit” and tow me around under their protection while I was taught
basic survival strategies ( like reallocating some of my energy from defensive shields to
photon torpedoes instead of the laser canons). After a bit, I messaged back to
mentor, “Ok I think I’m ready to fly on my own – thanks very much for the help”. I got
the reply, “No problems, by the way how old are you?”. Surprised, I answered “I’m 36”.
“YIIIIKES!!!”, was the reply. “What’s the problem?” says I. “I’m 12” says my instructor.
It was my turn to say “YIIIIKES”.

I learned that while there are many ways computers waste our time and even act as
dehumanizing agents, they still have the power to promote egalitarian values. By masking
cues such as sex, age (and smell), they allow us to interact as equals. In fact from that
point on, our conversation changed as my teacher realized I was an adult and I that he
was a child --- it shouldn’t have but it did. Just another instance of technology acting like
a double-edged sword.

Education and Technology

How technology has changed our educational system is a topic that’s sometimes hot, sometimes not. It was a very hot topic about fifteen years ago and seems to be making a comeback recently despite tough economic times and  despite the truth in the old joke that it took 25 years for the overhead projector to migrate from the bowling alley to the classroom. It may, however, surprise you that money spent on education in the US exceeds our defense budget if you take into account state and local as well as federal expenditure. (http://www.usgovernmentspending.com/year_spending_2012USbc_13bc1n#usgs302)

My interest in this topic was rekindled by a recent “On Point” NPR radio podcast, “The Digital Future of Textbooks” hosted by Tom Ashbrook (http://podcastdownload.npr.org/anon.npr-podcasts/podcast/330/510053/145842681/WBUR_145842681.mp3)

The show has an interesting structure: Ashbrook invites several experts in the field who ,by answering his questions, lay out the issues which are supplemented by questions and ccomments from phone callers and internet comments. An enlightening and  entertaining discussion usually ensues. This podcast discussed the pros and cons of using digital textbooks running on  portable computers within an educational setting.

Even when you factor in the costs of providing small computers to the students this still remains a viable economic option. Printed textbooks at the college level can cost students 500 to over 1000 dollars per year; a tablet computer can be acquired in the 200 to 400 dollar range.  In the grades K-12, textbooks degrade fast --- pages go missing as all students are not as fastidious as the teachers might wish. Yes, students will also drop tablet computers but insurance plans are available that amortize costs and lead to the student owning the computer by the time they graduate. Another possible negative effect is that the money spent on digital texts will be diverted from traditional subjects like art, music, sports and even woodshop. Who is to say that the loss of these subjects outweighs any of the benefits gained with more technology?  And how can we be sure these digital textbooks don’t devolve into digital comic books? And what about the Digital Divide ---will this advance in technology further exacerbate the divide between the haves and have-nots?

However, the pros do seem to be outweighing the cons. While big states like Florida and Texas can control some of the content in print texts, E-texts could be more localized allowing more educators to become author/ publishers. Teachers can insert, delete and resequence chapters which are very likely to contain interactive media. Students could not only watch a video as they read, they can interact with graphical models that allow them to ask their own “what-if “ questions.  Picture an Environmental Science  student running a climate change model and essentially asking, “What happens if cars are required to get 50 miles per gallon?”  And, in addition to lighter backpacks, a digital text allows the student to highlight, underline and otherwise take notes that are stored right with the lesson for easy review.

Of course all of this means that teachers must take on new roles and responsibilities. They should be allowed to move away from fixed mandated lesson plans and have more flexibility to design their own.  With the students interacting, perhaps in small groups, with their lessons, teachers would have more time to adopt the MBWA (Management By Walking Around) method of classroom administration. Teachers become more like coaches, spending more one-on-one time with their students and answering their questions instead of lecturing which can be, in a worst-case scenario, answering questions the student did not ask. Instead of being “the sage on the stage”, the teacher has the opportunity to become “the guide on the side”.

David Eagleman, in his essay, “Six Ways the Internet May Save Civilization” says, “The Internet opens the gates of education to anyone who can get her hands on a computer…A motivated teen anywhere on the planet can walk through the world’s knowledge, from Wikipedia to the curricula of MIT’s OpenCourseWare.” (Not to mention the wonderful free lessons on Kahn’s Academy; see http://www.khanacademy.org/about/getting-started)

If you’re old enough, you will probably remember similar predictions that television technology would revolutionize our educational system. Unfortunately TV has not lived up to its full promise.   Let’s hope digital technology does not suffer a similar outcome.

Private Lives

By the time you read this, the trial of Dharun Ravi may already be over and a verdict delivered.  He is a freshman at Rutgers University who has been accused of “invasion of privacy, bias intimidation and hindering apprehension” associated with the suicide death of his roommate, Tyler Clementi.  While the terms “invasion of privacy” and “hindering apprehension” are somewhat self-explanatory, “bias intimidation” needs some clarification. Briefly, it occurs when an act is committed “with a purpose to intimidate the victim because of  their race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity” (the full legal definition is at http://www.judiciary.state.nj.us/criminal/charges/bias3.pdf) This is a particularly important charge because the criminal penalties for bias discrimination are much more severe than the other two charges (up to ten years in prison and/or possible deportation),

So, what happened that caused these accusations to be made against Ravi? That is a very long and complicated story that has been minutely described by Ian Parker in the Feb 6, 2012 New Yorker magazine, “The Story of a Suicide --- Two college roommates, a webcam, and a tragedy”.

Here is a short version which leaves out many of the details: Ravi set up a webcam on his computer to secretly view a liaison between his roommate, Clementi, and an unidentified male, known only as “M.B” in the court records. Along with Ravi’s friend, Molly Wei they viewed (but did not record) part of the rendezvous.  After the encounter,  Ravi tweeted, “Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay.” As Ravi’s Twitter account was public, Clementi found and read that tweet and although initially reticent to start a “drama”, he eventually filled out the online form for a room change, reporting that his roommate had spied on him with a webcam. Afterwards, he went to the George Washington Bridge and jumped, committing suicide. He left his last message on Facebook: “Jumping off the gw bridge sorry.”

Whether or not Ravi is guilty of all or any of the three charges will be determined by the judicial process. Even the apparently obvious  “invasion of privacy” indictment is being argued by the defense attorney who claims that Ravi used his webcam only for security purposes --- he was merely trying to protect his computer from possible theft. However, if the privacy violation is proved by the prosecution, this is certainly another case of technology making it easier to violate the privacy of an individual and, in this instance, one that has caused  dreadful consequences. 

A less sensational concern is Google’s recent change in its  privacy policy. Google claims that all it wants to do is replace with a single policy the multiple policies associated with its many applications --- ranging from  maps to music to email and even Youtube (see: http://www.google.com/intl/en/about/products/index.html for a complete list) .  Google will now be able to store all of its customer data in a single database making it easier and more feasible for Google to target its ads to individuals who have subscribed to their services. Proponents point out that you have the choice to opt in to this policy and you gain all of the services Google provides for free. No one is forcing you to join and if you are comfortable trading some of your personal data for free use of these services, it’s a very good bargain.

Critics have an different viewpoint. They claim that Google is, first and foremost, a company that makes its money on advertisements that accompany their services. And, although, Google does not directly share your data with its advertisers, it uses them to select their ads. This raises the question of the security and integrity of your data. What if a hacker gets hold of it? What if a government agency requests access? Do your really want your search history to be this accessible?

My best guess is that this is an issue divided by age. If you are under 30, this new policy doesn’t bother you at all. If you are not, you are probably troubled by Google’s new privacy policy.

Post Script: In addition to the jail term, the judge sentenced Ravi to three years of probation and 300 hours of community service. He must also must pay court fines and contribute $10,000 to a state-licensed, community-based organization dedicated to assisting victims of bias crimes.
http://www.nj.com/news/index.ssf/2012/05/dharun_ravi_sentenced_to_30_da.html

Technology going to the Dogs

In this day of information acceleration and subsequent overload it’s comforting to learn that the latest technology for sniffing out drugs is, well, a dog’s nose. So, how did it come to be that the canine olfactory system is the latest and greatest technology for locating drugs?  In the Jan 4 PR was an article, “Supreme Court ponders drug dog’s sniff” which, if you missed or cannot recall the details, let me summarize:

On an anonymous tip and without a search warrant, the Miami-Dade police department had their chocolate lab, Franky, sniff just outside the house of Joelis Jardines to detect an illegal marijuana operation. After Franky had signalled that he sensed the drugs inside the house, the police used that evidence to get a search warrant from a judge and, in fact they confiscated 179 plants from the house with and estimated street value of over $700,000. Jardines pleaded not guilty and his attorney challenged the search, claiming Franky's sniff outside the front door was an unconstitutional law enforcement intrusion into his home which is protected by the Constitution.
 

The Florida Supreme Court ruled that the arrest of Jardines violated the Fourth Amendment protections against “unreasonable search and seizures” and has been challenged by the State Attorney General of Florida. The US Supreme Court will decide this issue this year. (Source:http://www.telegram.com/article/20120104/NEWS/101049967/1052/news01)

This new twist tests the Fourth Amendment to the Constitution once again. Is it a violation of our constitutional rights for a police dog to sniff outside our house for the prescence of drugs inside? Before you answer that question, let’s review some of the history of some prominent  Fourth Amendment Supreme Court cases involving technology.  In a previous column celebrating Constitution Day, I described two cases that dealt with this issue:  Olmstead vs US in  1928 where a bootlegger’s phone was tapped and the court ruled for the US government although Judge Brandeis, in a dissenting opinion, argued that the Fourth Amendment’s protection should extend to electronic communications. He pointed out that when a phone is tapped, the control of personal information at both ends of the connection are compromised --- not just the suspect’s privacy. In this fashion, “the tapping of one man’s telephone  line involves the tapping of the telephone of every other person whom he may call, or who may call him.”

Brandeis’ view was upheld and Olmstead overturned in 1967 (Katz V. US)  where a bookie was apprehended placing illegal bets in a bugged phone booth. Katz won and  Judge Potter Stewart summarized the court’s decision when he wrote, “The Fourth Amendment protects people, not places.”

It appears that the Jardines/dog sniffing case will be settled in Jardine’s favor also, especially in light of the Supreme Court’s recent decision on 1/23/2012 (US vs Jones) where the court ruled that police violated the constitutional rights of Jones when, as part of drug operation,  they secretly attached a GPS device to his SUV without a warrant.. The majority of the Justices  ruled that placing the GPS device on Jones’ vehicle for the purpose of tracking his movements constituted a search of his property and therefore required a warrant. Thus the ruling was about protecting citizens’ property rights and not their privacy. The Court purposely deferred ruling on whether technology like surveillance cameras or cell phones which can track users is a protected right of privacy under the Fourth Amendment. However, the worrisome issue seems to be how technology manages to worm its way into our private lives.  In fact, Chief Justice Samuel A. Alito Jr. faulted the majority for trying to apply 18th-century legal concepts to 21st-century technologies. What should matter, he said, is the “contemporary reasonable expectation of privacy”.

If you’re curious about the fate of  Mr. Jardines, lower courts can reprosecute but cannot use the evidence gathered from the illegal intrusion into his home.  It would have been more thoughtful for the cops to have secured a search warrant before they utilized the services of their drug-sniffing dog, Franky. What Franky thinks about all this has not been disclosed.