Is Privacy Dead? Reports of its Death Have Been Greatly Exaggerated

1. Is Privacy Dead?Reports of its Death (May Have) Been Greatly Exaggerated Peter Swire ‘80 Princeton Mini-Reunion March 29, 2019

2. Part 1:Privacy on life support, or worse

3. Overview • Reasons for concern: Moore’s Law • Privacy and freedom: they are worth preserving • Some reasons for hope: • One problem that got fixed • A global response legislatively • Some signs of hope from my research

4. Moore’s Law: exponential progress in computing

5. IoT – Devices everywhere to collect data • Cost falls exponentially of collection, storage, processing, transmitting

6. Westin: Databanks in a Free Society (1972) • The warnings on the death of privacy have been occurring for decades • Church Commission (Watergate): • “Overwhelming excesses” of intelligence collection • Abuses “were due in large measure to the fact that the system of checks and balances—created in our Constitution to limit abuse of Governmental power—was seldom applied to the Intelligence Community.”

7. Part 2: Why should we care if privacy is dead? • The idea: a strong link between privacy and freedom • If privacy dies, can freedom survive?

8. Brandeis and the Right to Privacy • “Political, social and economic changes entail the recognition of new rights” • 1928, in Olmstead: the Constitution, “as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men” • That dissent on wiretaps became the majority in the 1960’s – the recognition of new rights

9. ”Privacy and Freedom”: Alan Westin (1967) • Privacy as the right to control the information about oneself • Contrasts free and totalitarian societies • Athens – Sparta • Parliamentary Britain – absolutist France • United States – communist Soviet Union • Privacy integral to in free societies

11. Reminder of U.S. Limits on Intrusive Surveillance • 1787 Constitution • 3d Amendment – no quartering of soldiers • 5th Amendment – due process, and no compelled testimony • 4th Amendment: warrant needed to search, signed by independent magistrate • Riley and police need a warrant to read your phone • Carpenter and police need a warrant to get your location from cell-tower data

12. Part 3: Some Reasons for Hope Source: Christina Becker

13. One privacy problem that got fixed • One of Alan Westin’s biggest privacy concerns in 1960’s – pervasive use by employers of polygraph tests • 1986 US law prohibited polygraphs in the workplace

14. The spread of privacy laws • Next 2 slides: privacy laws globally in 1998 and 2018 • Fines under EU GDPR: up to 4% of global revenue • Google fine recently for 50 million Euros

17. Will the U.S. Pass a Privacy Law? • 2018 California Consumer Privacy Act • Washington state and others likely to follow • Chamber of Commerce supports federal regulation here! • They prefer it to California law • Conclusion on privacy laws – companies sure face a LOT of them

18. Other signs of progress • Snowden and its aftermath • June 2013, Snowden stories started • August 2013, creation of 5-person “Review Group on Intelligence and Communications Technology”

19. December 2013: The Situation Room

20. More Reform than the Skeptics Predicted • Review Group made 46 recommendations • At least 70% were accepted • Have stayed in place under current administration • USA Freedom Act (2015) and Review Group recommendations • Section 215 program essentially ended • Create legal and technical amici curiae to represent privacy and civil liberties interests before the FISC • Conclusion on this: new checks and balances created to correct for excessive surveillance

21. Short update from current research • Cloud computing created a BIG problem for law enforcement • For a murder in Paris, previously the evidence was in Paris • Today, it is often in the U.S., and need probable cause warrant for police to access • Routine criminal case becomes an international incident, with slow procedure to get the evidence • Basic solution: France gets direct access to the evidence, IF strong privacy protections • CLOUD Act enacted last March, to enable this

22. Goals: • Enable legitimate law enforcement requests • Protect privacy and civil liberties • Workable regime for service providers • Promote global Internet/avoid data localization

23. Will it work? • Who knows • Major cloud providers supporting the effort • US DOJ, EU Commission and new negotiations • India report • Ways to scale the system globally, to respond to the globalization of criminal evidence • Seeking to assure privacy protections as a condition of building the new system

24. Conclusion • Changing technology threatens privacy • The death of privacy has been proclaimed regularly since Brandeis in 1890 • The Church Commission reformed U.S. intelligence in the 1970’s • We needed a new round of reforms after Snowden • Brandeis: “Political, social and economic changes entail the recognition of new rights” • Our task, in each generation, is to build the institutions – the checks and balances – that redefine those rights and preserve the possibility of freedom