Human Property

Do airport body scanners infringe on privacy rights?

The question isn’t really easy to answer.  Any court analyzing this question would have to look at a society’s “reasonable expectations” of privacy.

California has some of the most robust privacy protections in the country, so looking at its law is instructive.  The California Constitution guarantees an “inalienable right[]” in attaining and preserving one’s privacy.  Cal. Const., art. I, § 1; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 16.  The California Constitution protects individuals from intrusions of privacy both by the government and by other people or businesses.

A plaintiff asserting a privacy claim based on the California Constitution must establish:  (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct on the part of the defendant constituting a serious invasion of privacy.  Hill, 7 Cal.4th at 35-37, 39-40.

In talking about body scanners, (1) and (3) are a no-brainer.  People have a protected privacy interest in keeping others from inspecting their naked or unclothed bodies.  And there is no doubt that the body-scanners themselves invade this privacy.

The real issue is (2).  What is the expectation of privacy these days with regard to plane travel?  Are people prepared to virtually disrobe in order to board a plane?

Does the mere fact that you consent to board an airplane relieve you of your constitutional rights?

Advocates of body scanners might say that we “live in a dangerous world” and that the scanners are necessary to ensure passenger safety.  For these advocates, scanners are the best way to check to see if someone is carrying contraband without asking them to actually disrobe.

On the other hand, how much privacy are we willing to get rid of on account of terror attacks?  This is the real question we have to ask ourselves.

There is also the question as to what, exactly, these body scanning machines can actually do.  The TSA admits that its own policies require body scanning technologies to have storage and transmission capabilities.  Are people comfortable knowing that the scans of their bodies may be held in a government database?

And at some point, it will be worth asking:  Why is it, exactly, that sends young Arabs and Africans onto planes armed with explosives?

Answering that question may obviate the need for all these security measures in the first place.

Until then, we may be looking at increasingly less privacy anytime we want to board an airplane.

Patents protect inventions, while copyrights protect creative works.   As India rushes onto the world stage, it seems clear that we are only a few years away from a real explosion in activity in India related to both.

The success of a movie like Slumdog Millionaire and its musical impresario A.R. Rahman hints at a growing interest in Indian music and culture in the West, that Indian companies will no doubt want to monetize.

In fact, they will probably care more about copyright protections in Western markets than in India itself — the Slumdog Millionaire soundtrack retails for a lot more in New York than in the Mumbai slum itself.

I would expect Indian cultural companies to start to really invest in copyright protections in the next five years as a way of capitalizing on growing interest in Indian music and movies in the US and Europe.

The same is true with patents.  With Indian companies like the Tata Group purchasing once powerful Western brands like Land Rover, it seems clear that Indian companies are now finally finding the confidence and capital to generate wealth alongside Western and Chinese competitors.  And to stay competitive, Indian companies will want robust patent portfolios.  A big patent book is a peacock feather —  a way of showing your intelligence and know-how in a globalized world.

India’s prospective growth rate for 2010 hovers at around 8 percent.  With Western markets continuing to look tepid, it’s just a matter of time before Indian companies make the leap and being monetizing their intellectual property in Western markets.  Expect for this to happen sooner rather than later.

Jack Dorsey, the founder of Twitter, plans to change the focus of his tech revolution from communication to something just as fundamental:  money.

The Los Angeles Times writes that Dorsey intends on developing a small plastic device called a “Square” that any cell phone user can add to his or her headphone jack.  The Square converts the telephone into a device that can read and scan credit cards.

From the Times:

Dorsey envisions the service replacing virtually every cash transaction. Let’s say a friend owes you $30 for dinner last week, but there’s no ATM in sight. Grab the Square device from your key chain, plug it into your phone and tell him to pay up.

If Dorsey’s Square is convenient and as easy as it sounds, then there may be significant changes up ahead with how we deal with our money.  Dorsey’s focus is on small transactions that currently go under the radar of most banks or other institutions, like buying something off of Craigslist:

Then there’s the untapped market on Craigslist. The free and ubiquitous classified ad website “is doing more transactions than EBay today and has no inherent payment mechanism,” Dorsey said. “It’s a huge market for us.”

But the Square’s potential effects are fundamental to the way modern economies work.  The Square would change the speed and convenience by which money exchanges hands — what economists call the “velocity” of money.  Money could change hands in seconds, not in hours.  What we would have is a true “peer-to-peer” model for monetary transactions, without any type of middle-man or intermediary.

The Square would affect the anonymity of money.  A big advantage of paper money is that it is anonymous.  You can pull out $20 from an ATM and spend it on anything you’d like, without any real trace of what you purchased.  This has benefits for people who would prefer their purchases to remain private — for legal and illegal reasons.

A world where every dollar transaction is recorded would contain a wealth of information, both good and bad.  Do we really want our purchases logged like that?

Consider another twist:  The Square would open interesting questions related to currency arbitrage.  Let’s say I had a friend with a bank account in Euros.  Given the fluctuation in exchange rates, could I simply transmit to him money on Wednesday, wait for the rate to increase, then make a profit by my friend simply sending the money back to me over the internet?  This seems like it would open a highly dangerous market for currency speculation, with people reacting in real-time to shifts in the market.  Do we want a world where currency speculation could happen in seconds?

Money, at heart, is simply an agreed upon medium of exchange.  Part of our attachment to money is no doubt sensory:  we see it, we touch it, we give it to other people.  Would “the dollar” mean as much to us, as opposed to some other currency, if it were simply an electronic number and not the comforting images of dour Washington, bold Hamilton, and confident Franklin?

Very little would prevent someone from opening a bank account in Euros or Pounds and hooking up the Square to that account, and simply using that currency in everyday life.  Suddenly, you see a world where consumers would be able to pick and choose their currencies as well.  People could choose Euros because it has a higher exchange rate, the Rupee because they want to support the Indian government, or the Pound because they just adore the Queen.  Much of the control exercised by governments through their use of currency would evaporate overnight.  This is truly radical, and it is likely that we would see governments pass laws to restrict the use of the Square to prevent this.

But, these days, anything can be hacked.  And here is where we come full circle in the use of money, and the devleopment of technologies.  For centuries, governments used gold and silver because everyone valued them.  Then, in the 20th century, governments used fiat currencies (without any backing of any metal) because they had more control over the money supply.  Now we potentially have a device that may let people pick and choose which fiat currency they wish to use as their preferred medium of exchange, thereby stripping governments of whatever power they obtained through the use of fiat money.  How will governments react?

Of course, maybe the Square won’t find an investor.  But with Dorsey’s name and Twitter under his belt, we may be looking at a truly revolutionary idea.

Google Inc. and Yahoo Inc. were served with warrants related to the Erin Andrews “peeping” scandal.

The Chicago Sun Times reports that the Feds may have been looking for another video posted by the the man accused of secretly recording nude videos of the famous sportscaster.

It’s news when these companies get served with warrants because it reminds all of us how much information we all store with these companies — and how one subpoena can potentially expose a lot of our personal lives to the public.

It’s also a reminder how — thanks to the internet — one person with a camera can make another person’s life totally miserable and completely exposed to the entire planet without a lot of effort.

Is access to the internet a civil right?  Are we entitled to the internet merely on account of citizenship?

In the United States this might be akin to asking whether cable TV is a civil right.  It just seems like an odd question to ask.

But other countries have taken this question seriously, and in many instances have concluded that access to the internet is a basic right.

This past October, Finland became the first country to declare high speed internet access a legal right.  The Finnish law requires that by 2015, every Finn must have internet access equivalent to 100 mb per second.

In June, a top French court declared access to the internet a basic human right guaranteed by the Declaration of Human Rights.  As such, the French court held that it was impermissible for France to deny internet access to individuals who were merely accused (but not convicted) of online piracy.

Estonia, a small Baltic country that borders Russia, passed legislation close to 10 years ago declaring internet access as a fundamental human right.

Will the United States follow suit with these other countries?  Congress seems unlikely to pass any type of law law guaranteeing internet access; there just didn’t seem to be any pressure or reason to do so.  As in France, the issue would probably come up before a court.  Here are a few hypotheticals that might lead a court to consider this question:

• Illinois is currently pondering a law that would ban registered sex offenders from accessing “social-networking Web sites“.  Would such a ban be constitutional?  Can a state prohibit people from accessing information and websites online?  Would this be an illegal restraint on the First Amendment’s guarantees of freedom of expression, or freedom of association?  The First Amendment guarantees people the right to say what they want in public forums subject only to time, place and manner restrictions.  Is the internet a public forum?  Or is it akin to a private mall which can kick you out at any time?  Answering this question may require a technical analysis as to who “controls” the internet — is it a private or government function?

• In addition to First Amendment issues, are there potential legal issues on account of the Equal Protection Clause?  The Equal Protection Clause of the 14th Amendment (passed after the Civil War) provides that all Americans are entitled to equal protection of the law:  no single group can be unfairly singled out for exclusion from constitutional rights.  Would the Illinois law present a case of an unfair restriction of a group of people without any rational basis?  It may seem unlikely that the Supreme Court would protect sex offenders from exclusion, but just a few years ago the Supreme Court held that a Colorado law which deprived gay people of legal rights was grossly unconstitutional as it unfairly targeted a group of people from protection of the law (Romer v. Evans, 517 U.S. 620 (1996)).

• Let’s assume that the Illinois law passed constitutional muster.  Could Illinois take the next step and ban all internet access for registered sex offenders?  The same First Amendment and Equal Protection Clause issues would appear to present themselves once again, but with greater force.  Let’s further assume that a court would OK restrictions on sex offenders to access the internet — can a state then restrict internet access for other groups?  Could a state pass a law barring convicted terrorists from accessing the internet?  How about alleged terrorists?  Many states already restrict convicted felons from voting and possessing hand guns — deeply fundamental rights in America.  Even if internet access were a fundamental right, it would seem internet restrictions caused by convictions might pass constitutional muster.  Is this right?

• Here’s another hypothetical that may be a reality before long.  Suppose the RIAA is able to successfully lobby Congress to pass a “three-strikes” bill that requires internet providers to restrict internet access to individuals who have been caught pirating materials at least three times.  Would it be constitutional to restrict internet access across the board to convicted online pirates?  This was the issue before the French court in June, and it found that that the law as written was too broad because it deprived people of judicial review.  If a jury finds you guilty three times of online piracy, can you be banned from accessing the internet for good?

The development of electronic book readers like Amazon’s Kindle raises interesting questions about the future of books.

The portable nature of the book has been its greatest advantage as a tool.  You can hold onto a book for a long time and freely share it with someone else.  You can read it as many times as you’d like.  If what you’re reading is considered dangerous, you can hide it.  Books are small but possess a lot of power and influence.

The only restrictions imposed on book ownership are those placed by copyright laws.  These restrictions are relatively minor.  You have to purchase the book once, and you can’t make copies of it and sell it to someone else.  That’s about it.  You are even permitted to resell the book without any trouble, a concept known as “first-sale.”

Some companies are attempting to use technology as a way of changing the relationship to the book.  The current restrictions on the Kindle, for example, attempt to change that relationship.  Instead of purchasing a copy of the book, you are actually purchasing a license to view it on your Kindle.  You are not permitted to transfer downloaded copies of e-books to others, thus restricting the right of first sale.

In short, you’re not really buying a book — just the limited right to view its contents.  This is a lot of power for Amazon to maintain over book ownership, and it carries some disadvantages.  Amazon got into hot water about its behavior when it deleted copies of 1984 from hundreds of Kindles.  People were up in arms, even though Amazon had credited back the affected accounts.  Some line had been crossed by Amazon when it manipulated the data after selling it.

Google, as well, wants to change the relationship with the book.  Google has been scanning millions of pages into a large database which it hopes to make searchable to the public — a veritable digital library.  Despite the balking of other companies and even the government, Google seems set to make a deal with the Justice Department and other online competitors over its plan.  Google would prefer that we read books through some service.  It remains to be seen if people will want what Google plans to offer.

But there, too, relationships may be shifting.  If Google is planning a searchable library, will privacy become an issue?  Consider the provisions of the Patriot Act that permit the government to access library records of individuals through National Security Letters:  would Google’s library be subject to review by the US government for certain search terms?  Do you risk surveillance with Google’s digital library that would never be a concern by merely reading a copy of that book in the local library?

Companies should certainly innovate when it comes to books, but they need to consider the fact that old habits die hard.  The Kindle seems like a book, but Amazon made clear that it really wasn’t a book — at least in terms of what people are used to.  And if privacy ends up out the window with Google’s new digital library scheme, people may soon realize that the digital library is a lot less comfortable than the brick-and-mortar version.

Companies should thus be careful with how they package their products.  The common law may provide plaintiffs with avenues against companies that package their products with new, unfamiliar restrictions.  A jury may very well believe that the product known as the “book” carries certain privileges attached to it — ones that can’t be trampled on.

Maybe this is why Amazon settled a lawsuit stemming from the 1984 debacle for $150,000 for the two plaintiffs.  Those numbers can add up.

Innovation and inventions impact society — sometimes even shifting power in unpredictable ways.   The printing press helped spread the Reformation.  Gunpowder permitted the rise of hundred-thousand-person armies.  What are modern technologies leading to, right now?

How are laws changing in the face of technological development?  How are rights being affected?

How are companies seeking to out-maneuver each other in the marketplace with new technologies?

What battles are being waged in boardrooms, policy meetings and inventors’ labs for relevance in an increasingly wired age?

Happy reading!