Free Future

When Privacy Gets Personal For Policymakers

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project at 11:21am

Data from license plate readers in Minnesota was obtained by a St. Paul car dealer using open-records laws, and used to repossess at least one car, according to a recent article in the Minneapolis Star Tribune. The article included this amusing tidbit:

When the Star Tribune published data tracking Mayor R.T. Rybak's city-owned car over the past year, the mayor asked police Chief Tim Dolan to make a recommendation for a new policy about data retention.

To those of us who think about privacy a lot, it’s not just funny but also amazing how, when public officials discover that they can be at the receiving end of bad privacy policies, it tends to produce an immediate, electric effect on policy. I’ve already written about the Video Privacy Protection Act, which was passed after a journalist obtained Supreme Court nominee Robert Bork’s video rental records. At a time when video stores were a primary means of accessing pornography, Congress sat bolt upright and quickly passed an unusually strong law—albeit one that covered only video rental records and failed to address any of the other privacy problems the nation was facing.

Then there were the officials in Portland, Oregon in 2002 who were in court defending the controversial practice of allowing the police to search garbage left on the curb without a warrant. So a local free weekly newspaper, Willamette Week, went through the garbage of the mayor, police chief, and prosecutor and wrote an article about what they found and what it said about their lifestyles. An excerpt:

Perched in his office on the 15th floor of the Justice Center, [Police] Chief Kroeker seemed perfectly comfortable with the idea of trash as public property.

"Things inside your house are to be guarded," he told WW. "Those that are in the trash are open for trash men and pickers and—and police. And so it's not a matter of privacy anymore."

Then we spread some highlights from our haul on the table in front of him.

"This is very cheap," he blurted out, frowning as we pointed out a receipt with his credit-card number, a summary of his wife's investments, an email prepping the mayor about his job application to be police chief of Los Angeles, a well-chewed cigar stub, and a handwritten note scribbled in pencil on a napkin, so personal it made us cringe. We also drew his attention to a newsletter from the conservative political advocacy group Focus on the Family, addressed to "Mr. & Mrs. Mark Kroeker."

"Are you a member of Focus on the Family?" we asked.

"No," the chief replied.

"Is your wife?"

"You know," he said, with a Clint Eastwood gaze, "it's none of your business."

Opinions on the journalistic ethics of this approach appear to differ and I ought to say the ACLU doesn’t condone privacy violations, including dumpster diving, by anyone, whether reporters or the police. That said, it’s hard not to find it somewhat delicious to see officials who want to cavalierly grant the police a free hand to intrude on others without legal process because “it’s not a matter of privacy,” confronted first-hand with the bogusness of that stance.

In this case, I don’t know that it actually produced a policy change. It’s just possible, however, that it produced a little soul-searching among the Portland officials.

More recently, as the Supreme Court was considering whether it’s a search when the government attaches a GPS tracker to an automobile, many commentators noted this exchange during oral arguments:

CHIEF JUSTICE ROBERTS: You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you're entitled to do that under your theory?

MR. DREEBEN: The Justices of this Court?

CHIEF JUSTICE ROBERTS: Yes.

(Laughter.)

MR. DREEBEN: Under our theory and under this Court's cases, the Justices of this Court when driving on public roadways have no greater expectation of -­

CHIEF JUSTICE ROBERTS: So, your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?

The Court, of course, went on to rule unanimously that it was a search when the government put GPS trackers on cars. Which is not to say that the justices did not grapple in depth with the issues involved. If you look at the transcript of the arguments, the government’s lawyer continued the exchange, prompting Justice Alito to reach straight to the nub of the issue:

In the pre-computer, pre-Internet age, much of the privacy—I would say most of the privacy—that people enjoyed was not the result of legal protections or constitutional protections; it was the result simply of the difficulty of traveling around and gathering up information. But with computers, it's now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets, information that was made available to the public.... Do we just say, well, nothing is changed, so that all the information that people expose to the public is fair game? ….isn't there a real change in this regard?

Especially given such thoughtful remarks, I wouldn’t necessarily ascribe the votes of Alito or other justices to the personal connection that was floated in argument. But I wouldn’t say it likely hurt, either.

But overall, what does this tendency tell us? Two thoughts.

First, celebrities are always among the first to feel the effects of new privacy-invading technologies, and as has often been noted since the days of Gary Hart, politicians are increasingly susceptible to the same treatment as starlets and other celebrities by the tabloid and mainstream media. If an ordinary citizen drives to a brothel, a gay bar, or an Alzheimer’s doctor, chances are low that anyone will notice or care. But if you’re a Supreme Court justice, that might be front-page news, and some tabloid would probably pay big money for those GPS, ALPR, or cell phone records. A local mayor or police chief could also be affected by such a revelation.

Second, we’d all like to think that our public officials give great thought to the ramifications (including privacy ramifications) of policies (including policies that will affect other people and/or people unlike them) before they decide to support those policies. But clearly, many policymakers need to be smacked in the face with the negative privacy implications some policies have. Whether that’s because they lack the imagination to foresee such implications, or because it’s human nature, or because policymaking elites tend to feel insulated from the populations that bad privacy policies often affect the most, I don’t know. But those of us who advocate for good privacy policies would be well advised to remember the lesson.

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