Technology is increasingly placing social media and the natural curiosity of people at crossroads with privacy rights advocates, law enforcement, and national security. Smartphones with video and audio functionality coupled with destination sites have turned billions of people into photographers, bloggers, journalists, and chroniclers of events. It is interesting that the diaries our daughters and sisters used to hide in their sock drawers have now turned into thousands of blogging sites and social media giants like Facebook, MySpace, and Google +.
The most embarrassing and controversial pictures and videos that used to end up in shoe boxes now are routinely and regularly posted on YouTube, Instagram, and Pinterest. It was once like pulling teeth to get a teenager to “express his feelings,” but now there is an incessant need to share every thought through Twitter. Our sons and brothers who used to play it cool and macho by being the “strong silent type” have forever broken that mythical persona and proven that they are just has chatty and love to gossip as much as your stereotypical nosey neighbor.
People who used to respect the privacy of others are constantly snapping pictures and uploading videos to the web. You can no longer tell someone to “mind their own business” when so many of us share all our business down to the last micro moment. We share everything and post every fleeting thought, every moment of our life no matter how inconsequential on Reddit and Facebook. Parents who were always asking their children “where are you going and who you are going with?" now have a new tool to track their kids, it’s called “friending and circles” and of course there is Foursquare. There is no mystery in the dating game when we have chronicled our entire existence on multiple web site meeting places e.g. Meetup, Ning or Tagged, or LinkeIn.
Is it any wonder that the government took notice of this wellspring of information and is trying to use it in the “pursuit of national security?” We always suspected that “big brother’ was spying on us and now the government is seeking to acknowledge and codify its intent to openly spy on the public. The Obama administration has sought to expand the PATRIOT Act and the Foreign Intelligence Surveillance Act to include wireless and warrantless search and seizure of e-mail, Facebook messages, internet history and other digital web-based data. The government is keenly aware that social media has become a tool for both trivial pursuit and a meeting place for freedom fighters, anarchists, and terrorists. Social media has played a significant role in overturning governments, as was the case in the Arab Spring which began with Facebook- and Twitter-based protests in Egypt and Tunisia. The government is so intent on capturing this information that it is rumored to be building a massive data center in Utah designed to be able to store a yottabyte (one quadrillion gigabytes) of information.
As is always the case the government law enforcement agencies want the option to spy on you using modern technology like drone planes and data mining robots, but they don’t want you as a citizen using that technology against them in the same way. In a recent decision, the Supreme Court found it legal to record law enforcement officials in the course of them performing their duties. The Court ruled that there is no expectation of privacy when a police officer is making an arrest or conducting an investigation or any other standard police duty. The Court found that an Illinois law that made it a crime to record police officers violated the “free speech and free press guarantees in the First Amendment.”
Privacy laws add to the complexity of the new paradigm. Only 12 states have what is known as “all consent laws” which require that all parties be notified of an audio recording. The Electronic Communication Privacy Act currently (ECPA) protects warrantless seizure of stored data, e.g. email. However as the Electronic Frontier Foundation (EFF) points out the data you store on social media and other websites is owned by the service provider and the service provider may comply with the government to release any and all information based on its own data privacy policies, terms of service, general counsel, and law enforcement guidelines.
The Digital Due Process Coalition (DDPC) seeks to modernize and reform privacy laws, specifically the ECPA, to reflect modern technology and comply with the Fourth Amendment. DDDPC is focused on how the current law treats “access to email and other private communications stored in the cloud, access to location information, and the use of subpoenas to obtain transactional data.”
The ACLU notes that the technology used by the government and private companies to track online activity is “advancing rapidly and has become highly sophisticated.” They have a campaign, Privacy 2.0, which is hosted on their website Dotrights.org whose mission is to educate the public on internet privacy rights.
Judge Richard Posner, who dissented in the Illinois case, captured perfectly the juxtaposition of users’ intent on sharing their lives through technology and law enforcement wanting to do the same. He wrote “privacy is a social value. And so, of course, is public safety.”