Month: February 2015

February 12th- Panel 10

By: Joseph Gracely

Sneaking Past Kyllo

Link to article: http://www.usatoday.com/story/news/2015/01/19/police-radar-see-through-walls/22007615/

In 2001 the Supreme Court held in Kyllo v. United States that police use of thermal imaging technology to detect heat signatures within a person’s home was unconstitutional.  In doing so, the Court noted that the device in that case was “not in general public use.”  The Court also indicated that radar-based systems then being developed would be covered by its ruling in Kyllo.

Now those radar-based systems are here.  And contrary to the apparently clear holding in Kyllo, they are out on the streets providing officers with data about the presence and movements of suspects behind closed doors.

As USA Today reports, the Range-R handheld radar sensor is currently being used by at least 50 U.S. law enforcement agencies, among them the FBI and U.S. Marshals Service.  While the detectors don’t display images of what’s behind a wall, they are highly sensitive and can pick up on movements as slight as breathing from more than 50 feet away.

Until December 2014, when the use of the devices came to broader attention, police used the radar sensors secretly, without search warrants, presenting potentially great Fourth Amendment concerns.  This is particularly so given the difference in technology between radar and thermal imaging.  While thermal imaging arguably involves only the detection from outside the home of heat penetrating out through the walls – as the government actually argued in Kyllo – radar is something different.  With radar, there is – at some level – a penetration of the home by radar waves from the device.  Given the holding in Kyllo, it’s unclear how such warrantless radar use could survive constitutional scrutiny.

February 12th

By: Bo Wang

Smart TVs May Redefine Privacy in Our Home

http://www.bbc.com/news/technology-31296188

TV is getting smarter. Nowadays many smart TVs have voice activation feature. One could basically control the TV by giving oral command, without going through the pain of reaching for the remote. But the TV listens to more than what people would have expected. As Samsung is warning its customers, when the feature is on, whatever you say including “personal or other sensitive information” may be transmitted by the TV to Samsung or a third party.

Putting aside the shock that this sounds similar to George Orwell’s book 1984, there are some interesting legal issues that concern privacy law. Take the reasonable expectation of privacy test as an example, do people who own smart TVs automatically fail the first prong because they have no actual expectation of privacy when they talk before the TV?

After all, customers choose to buy these TVs. One could argue that people are not expecting to surrender their privacy in the living room because they don’t know their smart TV would “snitch”. But the counter argument could point to the Samsung warning or its privacy policy in the manual that comes with the TV and say “well, now you know it and it is your decision to turn on the voice feature.”

Should the little button on the remote that controls the voice activation also control how much privacy I have in my home? I don’t think it should. But the reasonable expectation of privacy test seems to be of no help here. It is also hard to argue physical trespass since I bought the TV. So the traditional doctrine of physical trespass doesn’t help either. I would love to see how courts will reconcile the new technology with the privacy concerns here because surely I want my privacy protected and I don’t want to reach for my remote.

February 12th

By: Siyi Tian

Article by the Center for Democracy & Technology 4 February 2015: Congress Moves Forward on Protecting Americans’ Digital Privacy

The article, which appeared in the press & in the news section of the Center for Democracy & Technology, announced the introduction of bills in both the U.S. House and Senate to update the Electronic Communications Privacy Act (ECPA). The bills aim to update the ECPA of 1986 and to provide stronger privacy protections of information stored digitally in the cloud, including e-mails.

Representatives Kevin Yoder and Jared Polis introduced the House version of the bill, the Email Privacy Act, and currently have 228 co-sponsors. Senators Mike Lee and Patrick Leahy introduced the Senate version, the Electronic Communications Privacy Act Amendments Act.

Specifically, the new bills aim to update the Stored Communications Act, 18 U.S.C. §§2701-2711. Under the current 180-day rule, law enforcement can obtain content of e-mails 180-days or less with a subpoena, not a search warrant. Senators Patrick Leahy and Mike Lee write that the proposal they will soon introduce will add the new requirement for the government to obtain a search warrant, based on probable cause, before searching through the content of e-mails or other electronic communications stored with a service provider such as Google, Facebook, or Yahoo!. They reason that the same privacy protections should apply to online communications as phones and homes. Since the government is prohibited from tapping our phones or forcibly entering our homes to obtain private information without warrants, the government should also need a warrant for obtaining our online communications.

The ECPA has not been significantly updated since it was enacted in 1986. The purpose of the ECPA was to protect our privacy, but it was enacted in a time before people heavily relied on e-mails, mobile location, cloud computing, social networking, and the Internet in general. Technology innovations have since outpaced the ECPA, and digital communications often do not have the same privacy protections as paper communications. Advocates and companies have long called for an update to the 1986 law, and support for ECPA reform has increased rapidly following revelations about government surveillance.

It is true that an update to the ECPA is much needed and desired to correct the confusions arising from unclear and conflicting standards with regards to electronic content, such as when a document stored on a desktop computer is protected by the warrant requirement of the Fourth Amendment, but the same document stored on a service provider may not be subject to the warrant requirement by the ECPA. This article, along with the introduction of the amendment bills, is a good step into the direction of reform. However, many barriers remain before passing the reform. For example, the Securities and Exchange Commission demanded a special carve out for warrantless access to private communications that people entrust to Internet companies. It would require strong bipartisan support to successfully reform the ECPA to offer equal privacy protections for all private communications.

February 12

By: Paula Kift

Metadata, and How You Feel

 http://www.newyorker.com/magazine/2015/01/19/know-feel

In “We Know How You Feel,” an article published in the New Yorker on January 19th, 2015, Raffi Khatchadourian describes the work of a startup company called Affectiva, which develops emotion-sensing software. Affectiva was founded by Rana el Kaliouby, an Egyptian scientist, and Rosalind Picard, a professor at the MIT Media Lab, in 2009. The company’s signature software, Affdex, calculates the proportions between non-deformable facial features such as mouth, nose, eyes and eyebrows. Affdex then “scans for the shifting texture of skin – the distribution of wrinkles around an eye, or the furrow of a brow – and combines that information with the deformable points to build detailed models of the face as it reacts. The algorithm identifies an emotional expression by comparing it with countless others that it has previously analyzed.” The software was initially developed to help autistic children classify human emotions. However, the business world was quick to identify more lucrative applications of the software. For instance, “CBS uses the software at its Las Vegas laboratory, Television City, where it tests new shows. During the 2012 Presidential elections, Kaliouby’s team used Affdex to track more than two hundred people watching clips of the Obama-Romney debates, and concluded that the software was able to predict voting preference with seventy-three-per-cent accuracy.” Perhaps more problematically, Affectiva could also be used in videoconferencing “to determine what the person on the other end of the call is not telling you. ‘The technology will say, ‘O.K., Mr. Whatever is showing signs of engagement – or he just smirked, and that means he was not persuaded.’”

Picard admits that some of the requests Affectiva received from corporations seemed unethical: “We had people come and say, ‘Can you spy on our employees without them knowing?’ or ‘Can you tell me how my customers are feeling?’ and I was like, ‘Well, here is why that is a bad idea.’ I can remember one wanted to put our stuff in these terminals and measure people, and we just went back to Affectiva and shook our heads. We told them, ‘We will not be a part of that – we have respect for the participant.’ But it’s tough when you are a little startup, and someone is willing to pay you, and you have to tell them to go away.” Picard eventually left Affectiva as the interest of the company shifted away from the medical to the corporate space.

Kaliouby and her team demonstrated that, in the age of big data, “even emotions could be quantified, aggregated, leveraged.” As of today the company has “analyzed more than two million videos, of respondents in eighty countries.” Given the wealth of the data, Affdex is now sophisticated enough to “read nuances of smiles better than most people can.” Kaliouby could imagine that one day cookies might be installed on computers that turn on laptop cameras as soon as somebody watches a YouTube video to analyze the user’s emotional response in real time.

Regulation is lagging. “In 2013, Representative Mike Capuano of Massachusetts, drafted the We Are Watching You Act, to compel companies to indicate when sensing begins, and to give consumers the right to disable it.” However, Capuano was unable to garner enough support for the bill as industry started lobbying against it. Meanwhile more and more companies are recognizing the financial potential of the Emotion Economy.

The technology described in the article raises intriguing questions with regard to the nature of electronically transmitted information and the third party doctrine. What category of information does emotional communication fit into? In the beginning of the article, the author suggests that “by some estimates we transmit more data with our expressions than with what we say.” Could emotional communication be classified as metadata? If so this would have problematic consequences for the privacy in our emotions since metadata is the kind of information that is least protected by current law. Even though Kaliouby and her colleagues assert that they turned away government inquiries about the technology, it seems likely that national security agencies are already in the process of developing their own. What if emotion-sensing technology were added to CCTV cameras?

Besides, if customers voluntarily allow third parties to collect information about their emotional communication, the government could easily gain access to that information by means of a subpoena. One could even imagine a time in which national security agencies collect emotional information on a grand scale and use it for predictive policing. For instance, national intelligence could determine that, based on an analysis of millions of emotional responses, a certain group of people is more likely to respond to certain information in a certain way. Everyone who reacts in a similar way would then be considered a part of that group and potentially threatening. In the age of big data, correlation trumps causation. Perhaps this scenario seems farfetched. But as Representative Capuano points out, “The most difficult part is getting people to realize that this is real. People were saying, ‘Come on. What are you, crazy, Capuano? What, do you have tinfoil wrapped around your head?’ And I was like, ‘Well, no. But if I did, it’s still real.”