In a surveillance state, this can have profound implications: Think of Uganda, for example, where a legal crackdown on lesbian, gay, bisexual and transgender LGBT activists is currently underway. Under surveillance, a gay youth seeking community or health care faces significant risks just for the simple act of making a phone call or sending an email.
This distinction is based on the traditional model of postal mail, where information written on the outside of an envelope is distinguished from the content of the envelope. This distinction is, however, rendered nearly meaningless by modern surveillance methods, which can capture far more than the destination of a communication, and en masse. In order to argue effectively for and reclaim the right to associate freely without surveillance, it is imperative that such a distinction be made. Digital metadata is different from analogue metadata and its wide-scale capture creates a chilling effect on speech and association.
It is time for fresh thinking on the impact of the culture of surveillance on our daily habits. The way that we interact on the internet is undoubtedly changing as a result of our knowledge of mass surveillance. Fortunately, fear and withdrawal are not the only reaction to this knowledge; our habits are changing as well. Corporations — lambasted for their alleged cooperation with the NSA — are responding to the increased public awareness of mass surveillance as well.
In early , before the Snowden revelations, encrypted traffic accounted for 2. In Europe and Latin America, the increase in encrypted traffic is starker: 1. It is also telling that journalism organisations have stepped up in the wake of the Snowden revelations, putting into place systems that will protect future whistleblowers. Similarly, the public discussion around the use of encryption is also growing, as is the funding and development of privacy-enhancing technologies.
Governmental and quasi-governmental organisations, such as the US State Department and Broadcasting Board of Governors, as well as non-profits such as the Freedom of the Press Foundation, have increased funding toward tools that can be used to thwart surveillance attempts.
The 13 Principles for the Application of Human Rights to Communications Surveillance, 16 developed prior to the Snowden revelations, provides a framework for policy making at the state level. As awareness of mass surveillance increases among the populace, it follows that new tactics for opposing it will arise. Given the complex nature of digital spying and the interlinked set of rights it affects, this is imperative. Ending mass surveillance requires consideration not only of its effect on privacy, but its impact on expression and association as well.
Wikileaks disclosure shines light on Big Brother. CBS News. Davos: World Economic Forum. This was not the Roe who made history four years earlier in Roe v. Wade , the landmark case that established abortion as a constitutional right.
In contrast to the first Roe, who had the means to buy an abortion if only she found one for sale, the second Roe lived in deep poverty. The impact of her indigence, in court and in her prior efforts to gain control of her pregnancy, would be hard to overstate.
Supreme Court and state authorities espoused broad, universal principles of individual freedom in balance with the common good. Also, as elsewhere, the state made plausible claims of purpose that seemed to conceal other motives. The outcome may have forced Roe, an unwed mother of three, to deliver a fourth child against her will, and imposed a crushing financial cost on her teenage co-plaintiff. From the moment Roe made the hard choice to terminate her pregnancy, the Connecticut Welfare Department became an implacable foe.
When the U. The record shows that Roe made the attempt, but failed. Under directly applicable precedent, Roe had a constitutional right to privacy against state interference with the very personal choice to terminate her pregnancy.
Under federal statute, she was entitled to free and comprehensive medical care. Before finishing the story of Roe, we pause to address a question that many readers may now be asking themselves. What does privacy have to do with the right to abortion? In fact, the constitutional right to privacy and its scope were central questions in both Roe cases. In those contexts, privacy should have provided a shield against arbitrary search, seizure, surveillance, or compulsory submission to intimate questioning.
For disfavored minorities and the poor, we found, the shield was so porous that it seldom kept government out. Privacy in reference to Roe describes a more muscular right: not only freedom from unwanted eyes and ears, and hands , but freedom to live personal lives without interference. Brandeis conceived of privacy as a boundary between state authority and sheltered domains of personal life where government did not belong. Within those domains, privacy stood for freedom to act on our choices without need for approval from society or state.
We could form ill-advised friendships, read deplorable books, enjoy indecent liaisons, patronize establishments of low repute, live by unorthodox principles or none at all.
For Roe, ground down by poverty, self-sufficiency could be a mirage. It was a great deal easier to form an intent than to carry it out. Griswold introduced privacy as binding precedent, holding that government had no business peering into the marital bedroom.
When the Griswold doctrine begat Roe v. Wade , women of childbearing age attained a power of decision that history had not afforded them before. With reliable access to birth control and abortion, sex and procreation became separate choices. Women gained control over life-changing events that had simply happened, ready or not, to their mothers and grandmothers. These were liberating developments in the fullest sense of the word.
Women could decide when and whether to try to conceive a child, and change their minds from month to month. If a pregnancy threatened their health or well-being, they could end it. Roe, by the case record, had no access to such resources. Supreme Court offered no remedy. By a vote of 6 to 3, the majority in Maher v. Roe upheld the state regulations. The majority opinion did not suggest much serious reflection on that point. This appeared to leave the Court in an embarrassing bind, having acknowledged that Roe and others had been deprived of a fundamental right.
It chose, therefore, to discount the burden that Connecticut inflicted on the indigent. Its understanding of cause and effect and consequence in the observable world might charitably be called incomplete. The justices may have reason to fear that constitutional review of state spending choices would bring a bottomless expansion of workload, a dearth of principled methods to draw the lines, an incursion into the proper function of the political branches, a blurring of legal and policy questions, and so on.
The fact remains, though, that the Court is left to defend the unattractive proposition that government may use the coercive power to withhold state spending from the most financially insecure citizens in order to to accomplish the same end that the state is forbidden to write into law.
The Court is likewise wedded to a proposition that would not survive an introductory class on taxation or property. Lobbyists for the rich spend hundreds of millions of dollars to influence the language of tax rates, exemptions, carry overs and subsidies; the allocation of scarce rights on public lands and within electronic spectrums; the laws of inheritance; the finer points of trade policy; the permitting of construction and renovation and zoning; and too many other examples to name.
Government does not exert sole control over any part of our economic life, but its unique powers of compulsion and its monopoly on the supply of money, among many other policy instruments, allow it to play as large or small a role as it chooses.
As for the line-drawing problem, it is probably not as hard in every case as the justices may fear, least of all in the one we speak of here. Connecticut wrote a budget of zero for exactly one, disfavored, politically controversial medical procedure in the close aftermath of a landmark decision that gave Fourteenth Amendment privacy protection to personal choice about exactly the same procedure. The Hyde Amendment, named for principal sponsor Rep.
Henry Hyde, remains in effect today. It prohibits the use of federal Medicaid funds for abortions unless the pregnancy threatens the life of the mother. Medical necessity or threats to her own health do not suffice. The state and federal laws, blessed by the high court, leave intact the freedom to choose an abortion in affluent communities, but compel other women to carry unwanted—or dangerous—pregnancies to term. Justice Brennan took up this argument in a dissent that, if present politics are any indication, is many years away from carrying the Court.
At last count, three-fifths of women covered by Medicaid and aged fifteen to forty-four live in states where Medicaid covers abortion only in cases of life-endangerment, rape, or incest. Another way to say the same thing is that only seven states give practical support for poor women to enjoy the same constitutional right to decisional autonomy that is guaranteed to more affluent ones. Laws and norms that safeguard privacy in the United States do not work for poor people, racial minorities, or otherwise disfavored groups.
As practiced in contemporary America, surveillance leaves them open to arbitrary and encompassing intrusions that are seldom if ever inflicted upon society at large.
Why this is the case—the question of intent—is beyond the scope of this report. The systems we have examined—public safety and social welfare—are created and supported by many well-intentioned people in good faith.
They need not be malicious by design, however, to have harmful effects. For one thing, a model that blames every harm on righteous accident cannot plausibly cover all the abuses we have documented here. Some of of the harshest surveillance measures are features, not bugs, in the system.
Discriminatory surveillance and control are not epiphenomenal to the project of providing for the poor; they are purposeful aspects of its design. And their persistence is a political choice. Some of our finest thinkers on surveillance have cabined themselves off from facts on the ground in unfamiliar neighborhoods. Inattention to the experiences of non-white, non-male, and non-rich people produces embarrassing results, even in otherwise rigorous work.
Traditional thinking about privacy rights has not addressed the practical limits of its reach. When privacy is conceived as an abstract, egocentric right, it becomes difficult to defend against invocations of necessity to protect important interests of society at large. Likewise, the ostensible tradeoffs of privacy and security are frequently misconceived. As we have seen, policing can instill terror; surveillance can ruin lives.
When we speak of privacy and security, we would do well to ask: privacy for whom , and security against whom? These are questions and problems that the judicial branch is unsuited to resolve. In broader perspective, the Court will not and arguably should not become the engine of fundamental reform in this space. The Court acknowledged in Goldberg v. McRae that indigence creates an obstacle, sometimes even insuperable, to the assertion of certain rights.
There is no constitutional restraint against stripping a citizen of the financial means to exercise a guaranteed right. Recall that Mayer v. Roe the state wrote a new regulation to remove covered medical care if provided in connection with an abortion. Medicaid and welfare spending rules can close the door to abortion in poor communities as tightly as if the procedure were a crime. The Court interprets that financial leverage as a neutral subsidy choice, implicating no constitutional right.
As the majority reiterated in DeShaney v. We are not opposed to carefully chosen litigation. We root for the good guys and rely on them to think carefully about the risks of an adverse decision.
We predict, even so, that politics and policy will have to carry the main burdens of reform. That is as should be. Americans do not define our social compact by the barest minimum compliance with the Constitution. We express our values and priorities—our purpose, Beers might say—in acts of choice. The federal government, for all its solicitude for the rich, still offers support to the disabled, the elderly, and the unemployed alongside its gifts to real estate developers and hedge fund managers.
A majority of voting-age Americans hold protection of the defenseless as a core value. That sense of justice, so innate that we display it in early childhood, can be marshaled in the cause of surveillance reform.
One important precondition of reform, in our view, is an intersectional approach to analysis, goal-setting, and policy instruments.
Defining a universal right, if we want it to mean something practical, relies on a clear understanding of the particulars. Lawmakers and policy advocates are likelier to achieve the results they intend if they ask how any given proposal would interact with the real-world conditions of the rich and poor alike, man as well as woman, white as well as black, Christian as well as Muslim.
Absent explicit attention to the disparate impact of surveillance tools, the liberal conception of general privacy not only leaves the disfavored behind, but also is likelier to fail on its own terms. The Fourth Amendment, to put the point lightly, already does a fine job of protecting white suburban men from stop-and-frisk and klieg lights aimed into their homes.
We will have to think harder about how to bring that security to the urban poor. The M4BL platform , which covers a far broader landscape, includes a demand for an end to the mass surveillance of black communities, and the end to the use of technologies that criminalize and target their communities including IMSI catchers, drones, body cameras, and predictive policing software.
Some reformers seek support from the privileged by portraying the unprivileged as test subjects for oppressive surveillance that may one day expand into the population at large. The argument is a well-intended effort to build a common sense of risk, but we believe it is a mistake. While it is true that aggressive new forms of are sometimes normalized over time—drones built for warfare overseas were repurposed to photograph migrants on the border, then used overhead at anti-Trump protests—too much is made of technology creep.
The worst of the abuses we describe in this report are vanishingly unlikely to spill into whiter, richer, more privileged precincts where citizens have the power to fight back. There is no sense pretending otherwise, and no need: gross abuse of state power demands our attention whether or not it reaches us personally.
An intersectional approach begins by observing the tangible effects of surveillance on the lives of real people. What disquiets us as we look ahead is the strong potential of new technologies, networked and integrated with the ones we have, to compound the harms of unequal treatment with new burdens on those citizens least capable of bearing them.
Big Data is shorthand for the marriage of sophisticated new computational techniques with inexpensive storage and off-the-shelf hardware that is faster and more capable than multi-million-dollar supercomputers from just a few years ago.
Big Data offers even a mid-sized company the realistic prospect of acquiring and manipulating data sets on a national scale. For the U. These capabilities offer great potential for good.
They also provide the building blocks of the most consequential new surveillance machine since the smartphone. In application, Big Data techniques have already begun to amplify the disparate harms of surveillance in disfavored neighborhoods.
In Chicago, police have also mined Facebook and other social networks to identify individuals they judge to be at high risk of committing or becoming victims of gun violence. It aims to preempt bad acts by a small minority by subjecting all residents to aggressive law enforcement intrusions on the basis of their associations, demographics, and geography. Policy makers should give careful thought to that punitive impact on the blameless majority, which is exactly akin to the central grievance of the colonists against King George.
There is considerable risk that machine learning techniques, when applied to a statistical record of unequal policing, will reproduce that bias in the guise of neutral science. Prejudice embedded in computer code will be an exceptionally difficult question for lay policy makers to judge.
Mitigating or preventing the harms of abusive surveillance may call for policies that are not typically considered under the rubric of privacy. Below we sketch two lines of further research and advocacy. Our purpose is not to write a comprehensive agenda.
Our intent is to invite policy makers and privacy researchers into a conversation that takes disparities of power seriously in all its dimensions.
For three years, our country has immersed itself in long needed soul searching about policing and punishment. Black Lives Matter and allied groups have persuaded a growing number of cities and states to create more stringent measures of police accountability.
Many members of the white majority public have come to understand that disproportionate police attention and violence are real in the places where black men and women live and work.
For the first time in American history, a significant number of white people see this moral calamity for what it is. Similarly, the Sanctuary movement has built support for measures that protect undocumented residents from manifestly unjust applications of immigration rules by decoupling local policing from the federal deportation system. Attention to the broader equities, for example, might discourage surveillance and arrest of victims who arrive at the courthouse to testify about domestic abuse.
Here again, an intersectional approach counsels us to pay close attention to the particular and overlapping harms of law enforcement overreach in communities of color. That connection to our work is obvious. Because the technology has evolved so quickly, however, checks and balances to prevent the kinds of abuses outlined above don't exist.
Two elements in particular are missing: A consensus on limits for the capability of public CCTV systems. Unfortunately, history has shown that surveillance technologies put in place for one purpose inevitably expand into other uses.
And with video technology likely to continue advancing, the lack of any clear boundaries for what CCTV systems should be able to do poses a significant danger. In just the past several years, many cities, including Washington, New York, Chicago, and Los Angeles, have for the first time installed significant numbers of police-operated cameras trainined on public spaces. And once these surveillance facilities are put in place, police departments will be in a position to increase the quality of its technology and the number of its cameras - and will inevitably be tempted or pressured to do so.
Do we want the authorities installing high-resolution cameras that can read a pamphlet from a mile away? Cameras equipped to detect wavelengths outside the visible spectrum, allowing night vision or see-through vision?
Cameras equipped with facial recognition, like those that have been installed in airports and even on the streets of Tampa, Florida? Cameras augmented with other forms of artificial intelligence, such as those deployed in Chicago? As long as there is no clear consensus about where we draw the line on surveillance to protect American values, public CCTV is in danger of evolving into a surveillance monster.
Legally enforceable rules for the operation of such systems. A societal consensus about how cameras should be used is important, but in the end we are a nation of laws and rights that have their root in law. While the Fourth Amendment to the US Constitution offers some protection against video searches conducted by the police, there are currently no general, legally enforceable rules to limit privacy invasions and protect against abuse of CCTV systems.
Rules are needed to establish a clear public understanding of such issues as whether video signals are recorded, under what conditions, and how long are they retained; what the criteria are for access to archived video by other government agencies, or by the public; how the rules would be verified and enforced; and what punishments would apply to violators.
There have long been well-established rules governing the audio recording of individuals without their consent there is a reason surveillance cameras never have microphones. It makes no sense that we don't have equivalent laws for video recording. When citizens are being watched by the authorities - or aware they might be watched at any time - they are more self-conscious and less free-wheeling.
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