Privacy, information access, and security in a panopticon society

1. Privacy, information access, and security in a panopticon society donna Bair-Mundy

2. Intercepting topics Security Libraries Privacy Surveillance

3. Discussion questions: What is privacy? Why do we need it?

4. Informational privacy - Westin's definition - part 1 Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. Control Westin, Alan F. 1970. Privacy and freedom. London: Bodley Head.

5. Informational privacy - Westin's definition - part 2 Viewed in terms of the relation of the individual to social participation, privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, either in a state of solitude or, when among larger groups, in a condition of anonymity or reserve. Choice Temporal Varied means

7. Informational privacy - Westin's definition - part 3 The individual's desire for privacy is never absolute, since participation in society is an equally powerful desire. Ongoing dialectic

8. Informational privacy - Westin's definition - part 4 Thus each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives. Social norms

10. Informational privacy - Westin's definition - part 5 The individual [balances the desire for privacy with the desire for disclosure and communication of himself to others] in the face of pressures from the curiosity of others and from the processes of surveillance that every society sets in order to enforce its social norms. Privacy v. Surveillance

11. Release from tensions of life in society requires release from pressure of playing social roles Westin's privacy theory: 4 functions of privacy Power to define the boundaries of the “core self” Personal autonomy Emotional release Self-evaluation Limited & protected communication Need to integrate experiences into meaningful pattern; essential for creativity Share confidences and intimacies only with those one trusts Westin, Alan F. 1970. Privacy and freedom. London: Bodley Head.

12. Individual privacy versus individual secrecy Privacy Allowed and in some cases required for socially-sanctioned acts. Stress reducing. Secrecy Involves socially proscribed acts. Stress inducing. Margulis, Stephen T. 1977. Conceptions of privacy: current status and next steps. Journal of social issues 33(3):5-21, p. 10. Margulis, Stephen T. 2003. Privacy as a social issue and behavioral concept. Journal of social issues 59(2):243-261.

13. Us Us Us Us Election day Us Them

14. Privacy an old concern Halakhah (Jewish law) Proscriptions on: Physical intrusion Visual surveillance Aural surveillance Talmud Walls between houses to be a certain height Creditor may not enter person’s house Ancient Roman law (Justinian’s Pandects) Prohibition against going into a home and dragging out the person Hippocratic oath No disclosure of what in practice seen or heard that “ought never be published abroad”

15. Types of privacy in law Informational privacy Decisional privacy Control of access to information about a person or group of persons Freedom to make personal decisions without interference from government Privacy Act of 1974 Roe v. Wade 1973 Gormley, Ken. 1992. One hundred years of privacy. Wisconsin law review Sept/Oct 1992:1335-1441.

16. American Constitution • Heavily influenced by natural rights philosophy (John Locke) • After extensive argument decided to include a Bill of Rights

17. Bill of Rights debate: Mason, Jefferson, et al. When assigning powers to the government must also limit those powers General warrants and writs of assistance

18. Objections to Bill of Rights Bill of Rights is stipulation a king gives to his subjects, granting a few exceptions to rights of the monarch Bill of Rights dangerous—implies government has powers not Could later be misconstrued as all-inclusive not granted (Alexander Hamilton, Federalist paper no. 84, etc.)

19. The compromise Amendment IX The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

20. Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

21. General warrants (1) • No specific individual • No specific crime • No specific place to be searched • No specific items to be sought • Illegal according to Sir Edward Coke’s Institutes of the Lawes of England (first published 1642 and 1644) • Illegality confirmed by Sir Matthew Hale • Illegality confirmed by Sir William Blackstone

22. General warrants (2) • Suspicion of crime related to government revenue • Used against anyone who dared to challenge or limit the authority of Parliament or the crown • John Wilkes (member of Parliament) • Anonymously wrote critical essay published in North Briton • General warrant leads to massive arrests, Wilkes ► Tower of London

23. Writs of assistance • Any customs official could enter “any House, shop, Cellar, Warehouse or Room or other Place...” • Seize unaccustomed goods • Lasted for the life of the sovereign under which it was issued plus six months • According to John Adams, major factor in seeking American Independence

24. Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...

25. First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Freedom of 1st Amendment gives right to associate without surveillance (Lieber 1859)

26. Ex parte Jackson “The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized...” Justice Field 96 U.S. 727, 732

27. Penumbras of the Amendments 1965 Griswold v. Connecticut 381 U.S. 479 "Zone of privacy" created by 1st, 3rd, 4th, 5th, and 9th amendments

28. Discussion question: Why do we need surveillance?

29. Need for surveillance (1)

30. Need for surveillance (2)

31. Need for surveillance (2)

32. Need for surveillance (2) Beniger, James R. 1986. The control revolution: technological and economic origins of the Information Society. Cambridge, Mass.: Harvard University Press.

33. Surveillance in a transforming society Zuboff, Shoshana. 1988. In the age of the smart machine: the future of work and power. New York: Basic Books.

34. Roles of Surveillance (1) Used to catch the criminals Used as means to control workers Necessitated by technology Facilitated by technology

35. Roles of surveillance (2) Provision of services (Social Security) Allows participation (Voter registration) Protection against threat • Means of social control • Discover and rout out deviance • Threat of surveillance used to promote compliance with the law

36. Routing out “deviants” Round-up of Pennsylvania Quakers (1777) Sedition Act of 1798 Espionage Act of 1917 – 1918 amend. Internment of persons of Japanese ancestry—WW II

37. Dealing with dissidents President Franklin Roosevelt had FBI spy on New Deal opponents President Johnson had FBI spy on opponents of his Vietnam War policy President Nixon had FBI, CIA, NSA, IRS, and Army Intelligence spy on and harass his perceived enemies United States. Congress. Senate. The Select Committee to Study Governmental Operations with Respect to Intelligence Activities. 1976. Final report.

38. “COINTELPRO New Left” FBI program to “expose, disrupt, and otherwise neutralize” activities groups and individuals affiliated with the “New Left” Extensive and mostly illegal surveillance United States. Congress. Senate. The Select Committee to Study Governmental Operations with Respect to Intelligence Activities. 1976. Final report.

39. “COINTELPRO New Left” Had members arrested on marijuana charges Sent anonymous letters about a student’s activities to parents, neighbors, and the parents’ employers Sent anonymous letters about New Left faculty members (signed “A Concerned Alumni” or “A Concerned Taxpayer”) to university officials, legislators, Board of Regents, and the press United States. Congress. Senate. The Select Committee to Study Governmental Operations with Respect to Intelligence Activities. 1976. Final report.

40. Surveillance - Plague model Highly visible Isolation and observation Social control Foucault, Michel. 1995. Discipline and punish: the birth of the prison. New York: Vintage Books.

41. Surveillance—Panopticon model Jeremy Bentham • Legal theorist • Rationalism • Utilitarianism • Eccentric

42. Jeremy Bentham’s Panopticon cells entry inspector’s lodge walkway

43. Panopticon society

44. Re-thinking constitutional privacy 1964- U.S. Senate Long Subcommittee Hearings on surveillance activities by federal agencies; first looked at IRS

45. No warrantless wiretapping in criminal cases 1967 Katz v. United States 389 U.S. 347

46. Congress Acts 1968 The Omnibus Crime Control and Safe Streets Act of 1968 (“Federal Wiretapping Act“), 18 USC Section 2510 et seq. Wiretapping illegal but when crime has been or is being committed law enforcement can, with a warrant, engage in wiretapping for limited periods. Provides judicial oversight for law enforcement wiretapping.

47. National security wiretapping 1972 U.S. v. U.S. District Court for the Eastern District of Michigan “Keith” “the customary Fourth Amendment requirement of judicial approval before initiation of a search applies in domestic security cases”

48. FISA 1978 Foreign Intelligence Surveillance Act U.S. Code 50 USC Sections 1801-1863

49. Electronic mail 1993 ECPA Electronic Communications Privacy Act Addressed the need to protect e-mail.

50. Post-9/11 Viet Dinh Asst. Attorney General H.R. 2975 10/12/2001 S. 1510 10/11/2001 H.R. 3004 Financial Anti-Terrorism Act USA PATRIOT Act H.R. 3162 Public Law No. 107-56 Signed Oct. 26, 2001 by Pres. George W. Bush