Kevin Bankston | New threats to privacy

As a staff attorney at the Electronic Frontier Foundation, one of Kevin Bankston's primary responsibilities is to monitor the effects of new technologies on citizens' privacy rights and occasionally undertake litigation to protect those rights. Recently, he experienced the issue firsthand when he was, without his knowledge, photographed by Google Street View, and his image was posted online. Certainly, applying the law to any new field is going to be fraught with risks and difficulties. And certainly, many of the technologies that we're grappling with now are brand new.So we have to do our best to craft analogies to already existing doctrines as applied to already existing technologies. Sometimes that works well. Sometimes it doesn't.A key example would be our amicus brief to the 6th Circuit in the case of Gorshof v. U.S., where we argued that people have a reasonable 4th Amendment expectation of privacy in their e-mail that they store with their third-party provider. They have just as much expectation [of privacy] in that as they do with their phone calls, which are strongly protected by the 4th Amendment. We succeeded in convincing the court of the aptness of that analogy.More information is being generated and collected and stored; in particular, information that is highly sensitive and revealing. There has never been a document ' ever in the existence of humanity, I think ' that is more revealing of the interior concerns and nature of a person than, say, a log of all their Internet search activity. This was born out by my examination of search logs that were 'accidentally' disclosed by AOL last year in a frighteningly irresponsible data leak. They released search log histories of several hundred thousand of their users over a three-month period. Looking through those logs, it was clear that people treat their search engine like their most trusted confidante, seeking advice on practically every personal, medical, financial or familial problem you can imagine. So with new technologies, there are new privacy threats which I would say are graver than any we've faced before.The logs were attributed to unique numbers, so the person's user name was not shown, but a number of those histories revealed the searcher based on what was searched for. The New York Times located and interviewed a particular woman based on her search history. And if you search your own name in Google, the first thing on your first page of results is your own search history. We need to amend and clarify the Electronic Communications Privacy Act [ECPA], which was passed over 20 years ago. It is now'inadequate to deal with the plethora of technologies that are emerging. For example, whether and how that federal privacy statute protects the logs of your searches held by Google or AOL, or whomever, is completely unclear. It has not been litigated. As a result, that means that whatever rules might apply are being negotiated in secret between those companies' compliance officers and federal law enforcement and intelligence investigators when they come calling for information. No one knows what, if any, standards are being required of them in those meetings.The current law and its applicability to really common tools that we all use is completely uncertain. And that kind of uncertainty when it comes to something as private as your search logs is dangerous. There is similar uncertainty in ECPA about whether or how the government may track your cell phone in real time.There's a strong argument, and several courts have agreed, that a search warrant is required. The government has argued, and succeeded in some places, in getting authorization to do such surveillance without a probable-cause warrant. I can point to Loopt as a good example of a service that has designed itself to be respectful of privacy by not logging your position. Each time you report your position, it overwrites the previous record of your position. So if the government or a civil litigant were to go to Loopt and say they want to subpoena everywhere that person X has been for the past month, for example, they have the best answer possible, which is 'We don't have that. We don't keep that information.'Certainly, with things like Google Street View and with the proliferation of camera phones and surveillance cameras, our concepts of privacy in public are necessarily changing, and not for the better. I think it's really critical for us in order to operate as a free society to be able to move about in public with some level of anonymity. Tell us about your own experience with Google Street View. I was alerted by a journalist who, while using Street View for directions in San Francisco, happened to come across an image of me walking to work smoking a cigarette. So that was published, and I decided to contact Google. Their main response to privacy concerns has been that you can quickly and easily get them to take down objectionable photos. Of course, that doesn't really help if someone other than you is the first to find your photo, which I think is the most likely scenario. Nevertheless, I thought I would take them up on that offer and see just how quick and easy their process was.It turned out it wasn't that easy at all. The next day I got an e-mail from them saying, 'OK, to confirm that you are the person in the photo, please send us a copy of your driver's license and a sworn statement under penalty of perjury that that is you.' So I alerted the press to this. The next day Google decided to change its policy. Now they only require you to give your name and represent that you are the person, and they'll take it down.My concern here isn't so much for people like me who are caught smoking, but'people in much more compromising or embarrassing positions who might have been captured by Google's unmarked camera van. Say, someone walking out of an Alcoholics Anonymous meeting or an abortion clinic, or being photographed at a controversial political or religious event. Google Street View represents a trend in technology where the risk that we might be seen by someone who recognizes us when we're on the street is turning into a certainty that our image will be captured when we're out on the street and very well may be published to the entire world.