Topic: Surveillance and the First Amendment
By: Adelaide Dunn, Panel 2
This article is of particular note after the growing dispute between the FBI and Apple regarding encryption (and Apple’s message to its customers about this issue last month – http://www.apple.com/customer-letter/). Ryan Calo offers an alternative to the common accusation that tech giants have no regard for privacy rights, because of their financial dependency on gathering data from users. He argues that technology companies are acting instead as “data custodians” by formulating simpler encryption techniques and making those developments default on devices. This will make effective data protection available to all, rather than a specialized project for the privacy-minded and tech-savvy among us. Such ubiquitous encryption, Calo contends, is currently the most assuring shield against mass surveillance. However, there are still major systemic obstacles that society faces in challenging mass surveillance.
From a democratic perspective, the American population generally displays ambivalence towards the privacy issues raised by surveillance. Even if we elect privacy-conscious politicians, however, the intelligence community is still powerful, enormous and shrouded in secrecy. Political candidates lack access to this entity and do not possess the expertise or incentives to challenge it.
In addition, challenging surveillance on a Constitutional (or other legal) basis requires your knowledge of the specific surveillance in the first place. Those who are able to utilize the Fourth Amendment tend to have already been implicated in a crime. Furthermore, data that is stored online by third party service providers may be reachable by law enforcement agencies without a warrant, depending on what jurisdiction the third party server exists within. These assertions serve as a pragmatic reminder behind the complex discussions around the legality and constitutionality of mass surveillance.
Technological protections are available to encrypt communications and to hide online purchases and browsing behaviour. However, these are often complex to use and not tailored to specific privacy tasks that users attempt to achieve. Because technological protections are niche, their very use can place one on the government’s radar.
Due to these societal, institutional and technological challenges, shifts in tech giants’ policies and inventions regarding encryption remain promising. Perhaps, as the population becomes more educated and aggressive towards surveillance, privacy will become a stronger market force behind the development of communicative consumer products like smartphones, tablets and computers. That way, responses to consumer need by corporations like Google, Apple and Microsoft might be democratically as well as commercially productive.