Some interesting developments this week related to privacy. In particular, a Federal District Judge from the Eastern District of New York, Judge Garaufis, ruled:
"The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by 'choosing' to carry a cell phone must be rejected…In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user's reasonable expectation of privacy in cumulative cell-site-location records"
Something I haven't seen explained clearly in the impact assessments is how likely this judge's decision is to be turned over, or whether other districts are required to follow suite. A brief legal overview from a policy guy, not an attorney.. Statutory Law is what most people think of when they think of laws; the laws passed by Congress and written in the law book. Common Law can be seen as law made by judges, or more precisely, statutory law interpreted by judges in a way that sets a precedent for action and interpretation of future laws. In this case, Judge Garaufis is creating statutory law.
The Federal Court system is three-tiered. The Supreme Court is at the top and decisions made by the supreme court are binding for all other courts. The next level down is the Circuit Court of Appeals. There are eleven regional judicial Circuit Courts of Appeals, each region includes several states. The lowest tier are the District Courts, the Eastern District Court of New York is where this decision was handed down.
The reason this matters; court decisions are binding to courts lower down on the hierarchy, but not across. Supreme Court decisions set precedent for all three tiers. Decisions handed down in the first circuit court of appeals are not binding for the second circuit court of appeals, but they are binding for District courts within that region. The district court decisions are not binding on other districts.
While this seems like an important decision and step forward in protecting privacy, it is only a step and doesn't mean gps data is protected. The usual disclaimers apply - I am not a lawyer etc.
Facebook has tweaked their privacy settings to show who you will share a post with when you hit submit. This seems like a step in the right direction, but I still think Google + has a leg up in their graphical representation of privacy settings. Hopefully this approach will catch on and it will be easier for people to understand what is happening with the data they send off to these major corporations.
Further rumors about an Electronic Privacy Bill of Rights. A paper is due out in the fall from the Obama administration outlining a possible approach. It sounds like Government will work with companies to determine a voluntary, self-regulation approach to protecting consumer privacy, including a set of technical and policy standards that companies should follow. This could be very interesting and should probably build from the Fair Information Practice Principles: http://www.ftc.gov/reports/privacy3/fairinfo.shtm
1. Notice/Awareness 2. Choice/Consent 3. Access/Participation 4. Integrity/Security 5. Enforcement/Redress
Privacy, Surveillance, and the Human Implications of New Technology
