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Big Brother in Your Pocket

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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August 20, 2009

If someone in the 1970s had revealed that within 40 years Americans would all be carrying electronic location-tracking devices with them wherever they traveled, people at the time would have either scoffed at the notion, or concluded that we were destined for a totalitarian takeover by the Soviet Union.

Yet here we are just three decades later, and that situation is precisely what we are rapidly finding ourselves in. The technology is our cell phones.

In 1996 Congress enacted a federal law that requires cell phone providers to install technology that will report the location of a caller who dials 911. The result of this “enhanced 911” or e-911 functionality is that today’s mobile phone networks are being built to detect your location — and lots of companies want to make money off of that. Data-mining expert Jeff Jonas in a recent blog post reported that a) companies are already plunging into the business of data-mining all the location information that Americans are creating, and b) they can discover a lot about people from that information. This data “makes where you live and where you work self-evident, and it reveals your most frequent, periodic, infrequent and rare destinations,” Jonas writes. It can also reveal who you meet after work for a beer, and roughly where you all go. And that is just the tip of the iceberg.

Jonas worries about the privacy implications but ultimately thinks that as a result of this, “a surveillance intensive future is inevitable.” He is probably right that gadgets and conveniences are irresistible, but there is no reason that by setting good public policies, we can’t protect our privacy while enjoying these conveniences.

To take just one easy example, why should law enforcement be able to access location records about us held by phone companies without a warrant? Information about our comings and goings is very personal and revealing. That is why the ACLU has filed a lawsuit to learn more about the government’s practices. It is now clear that cell phone tracking is a common law enforcement investigative technique, used by both state and federal law enforcement agents, and that it is in use all over the country.

On the commercial side, as Jonas points out, the uses of location tracking are endless. And many of them may well turn out to be things people like. But a key principle of privacy, accepted around the world as part of the core fair information principles, is that information collected for one purpose shouldn’t be used for other purposes without people’s affirmative permission. If someone wants to sign up for a friend-finding service and understands fully what this means for their privacy (and hopefully has the ability to turn it on and off), that’s one thing. But people who are just using their mobile phones for texting and calling friends and family do not expect that companies will exploit the side effects of how cell phones work for other, unrelated purposes that invade their privacy. (The Electronic Frontier Foundation also recently released an excellent white paper on location privacy).

Good policies have protected Americans’ privacy in the past. Surveillance cameras, for example, are proliferating throughout our society. This is not good for privacy, and it illustrates what happens when laws are not passed. But the situation would be even more invasive if all those cameras had microphones that recorded not only what people are doing but also what they are talking about. Have you ever noticed that surveillance cameras never have microphones? Why is that? It’s not as if microphones are very expensive, they could easily be added to cameras.

The answer is that our wiretapping statutes prevent people’s conversations from being recorded in most situations.

The vast landscape of technology deployment across the United States has been very definitely shaped by good policy, and that can be done again. There is no reason that we need to sit back and let our cell phones become what Americans have always viewed as an ultimate totalitarian tool: mass, full-time tracking devices.

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