Tag: privacy

Digital Privacy: Smart Technology and the Naive Consumer

By Leonel Mata

Recent reports concerning the extent to which companies, such as Facebook, have been acquiring and disseminating information of individuals across the world have highlighted the fact that privacy issues do not only concern how governments make use of personal information, but how private companies have been making use of it as well. The pervasiveness of technology, combined with its necessity in the modern world, has made issue of convenience versus protection an all-important debate.

To be a part of the modern world one must be connected to it constantly. The main way of achieving this is through the internet, and the main way the internet is accessed is through our cellphones. Long gone are the days when you could easily get by using physical mail and a landline telephone. While the rise of smartphones has made our lives easier, creating a quick and easy way to access information and to contact others almost instantaneously, it has also become a way to gather information on the individual in ways that were impossible before. As technology has advanced so too has the amount of information that is being acquired by both private and government entities. Despite this rapid scaling of access to personal information, the law has been slow to react and protect the individual in an adequate manner.

In China, one can see how advancements in technology have provided infinite gold-mines of information. China’s government has taken a keen interest in controlling how social media works on popular platforms, such as WeChat, Baidu Tieba, and Sina Weibo, out of a belief that information being disseminated on these platforms can disrupt social order and lead to the violation of laws.

China has also enacted a policy known as “real-name registration” where users must register their personal information with the necessary provider before they can do things like post comments on forums or articles. China’s step toward erasing anonymity is done under the guise of making the community safer and holding individual’s accountable for their statements and actions. However, it also has the effect of dissuading individuals from stating contrary views to those in charge. Naturally, this creates an additional barrier for individuals’ who seek to advocate for change, but it also has a chilling effect on the ability for a community to be able to discuss issues freely and openly without fear of retribution.

Out of a desire to access a larger market, companies regularly acquiesce to rules and regulations imposed by countries such as China. While it is true that Google has rejected some of China’s more restrictive and invasive policies, they have announced that they would be returning to China. Even without American companies such as Google, local companies such as Baidu have grown tremendously and have had no issue agreeing to the terms stipulated by the Chinese government.

Often overlooked is the fact that concern for one’s privacy is not merely an issue for those who live or visit countries such as China. Governments and companies alike in western democracies have increasingly made use of the pervasiveness of technology in order to acquire as much information as they can on each individual. In the United States, people have seen the rise of the National Security Agency and its ability to invade the privacy of individual’s when the government can justify that it is necessary. However, what is more alarming is the increase in the acquisition of personal information by private companies, such as Facebook, or internet service providers, such as Comcast.

In our daily lives we are regularly giving away bits and pieces of our privacy. When we use Fitbit, the company is given access to where and when you have been somewhere. Most shocking to the public has been the realization that when we participate in social media, such as Facebook, we give away an enormous amount of data that then has the potential to be misused and abused by companies.. These issues are not new ones, in fact, Facebook has been involved in privacy violations before, but has been able to come out of each one relatively unscathed because, when it comes to technology, the public prefers convenience.

While privacy advocates have been up in arms regarding the increasingly invasive nature of governments and companies across the globe, the public has been less concerned. Traditionally, when dealing with privacy our protections were written taking into account physical invasions into our space as well as physical collecting of our data. However, the world has changed significantly since these protections were written. Nowadays, an invasion of privacy can occur out of sight and out of mind. This has made the public much more accepting of giving away their privacy because it does not noticeably affect them. Recently, thanks to scandals surrounding companies such as Cambridge Analytica and Grindr, people have become more concerned regarding the extent to which their data is being used. It is unclear as to whether this will be enough to finally force governments to act to properly protect the rights of the individual against blatant misuses of their personal information.

It is true that certain companies have taken a number of steps to better safeguard the personal information of their customers, often to the government’s annoyance, but even these companies have proven to be susceptible to the demands of the government if there is a significant financial incentive to do so. This demonstrates that it cannot be left to companies to self-regulate how they protect the data of individuals. Thus, in order to safeguard our rights, governments must act to pass legislation imposing harsher personal privacy regulations and harsher penalties for those who do not comply with these regulations. The EU has done just this when it passed the General Data Protection Regulation back in 2016. Unsurprisingly, there has already been pushback from companies about enacting the EU requirements globally.

As for governments, such as China, who are more frequently the abuser rather than the protector of rights, the public should engage not only domestically, but at an international level  in order to create change in how abusive governments are treating their citizens’ right to privacy. Even for government’s that are more receptive to public criticism, one must be vigilant as they continue to squeeze away at one’s privacy. If action is not taken at the local, national, and international levels, then the right to privacy will soon be a thing of the past as individuals are taken advantage of by both public and private entities.

Leonel Mata is a third-year law student at The University of Texas School of Law. He is a member of the 2017-2018 Working Paper Series Committee, Submissions Editor of the Texas Journal of International Law, and a member of the Jessup International Moot Court team.

Finding a Balance: Privacy and Safety

by Leo Mata

5 APR 2017

Considering the most recent release of information by WikiLeaks, and the ongoing 2016 election investigation, it seems as apt a time as ever to reevaluate the right of privacy and how far it truly protects the individual. In the United States, while the right to privacy is not specifically mentioned in the Constitution, the Supreme Court has looked to various amendments to establish this right through decades of court jurisprudence. In contrast, the right to privacy has been enshrined in at least 170 constitutions across the globe. Moreover the United Nations Special Rapporteur on the right to privacy, Joseph Cannataci, has stated that “[article] 12 of the UNDHR and [article] 17 of the ICCPR do not state that the right to privacy is a right which is only enjoyed by the citizens of one’s own state.” So, it should not matter whether your own country has a constitutional provision safeguarding individual privacy, as long as that country has signed onto the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights. Yet, it is worth noting that even within each of these avenues for protection, constitutional or treaty based, there are limits to the protection. The line for protection is usually drawn around the ideas of unlawful interference or arbitrariness. The important question here, then, is: How do we balance our need to prevent attacks by foreign agents and our right to privacy?

Looking at the United States, we can track a variety of spying scandals as examples. The idea of spying on U.S. citizens is neither uncommon or unheard of. The Federal Bureau of Investigation (FBI) in its history has tracked such notable figures as Rev. Martin Luther King Jr. and Eleanor Roosevelt, and was implicated, along with other agencies, in the Watergate scandal. The government said it monitored Rev. King out of fear that his movement was being infiltrated by communists, and this reasoning was enough for the Attorney General to approve monitoring. In the modern era, combating foreign actors is often the guise under which government agencies justify domestic spying. Learning from our past mistakes, the United States established the FISA Court which is designed to act as a safeguard against unnecessary intrusions into our lives while allowing the government to monitor for foreign intelligence purposes. However, despite this level of protection there have been numerous reports of the National Surveillance Agency (NSA) acting beyond their legal scope. So, we must ask, is the FISA Court a sufficient level of protection against the abuse of an individual’s right to privacy? Even the Court itself has acknowledged it has a limited ability to protect our right to privacy.

The recent trove of documents released by WikiLeaks identify methods, such as the installation of spyware into your smart TV or smart phone, that the Central Intelligence Agency (CIA) could use to gather information. The idea that the CIA can hack into devices is nothing new, spying is in fact what their job entails as a means of protecting the United States, but when placed side by side with a history of abuse, it is hard to not fear a violation of privacy. This has, justifiably, put many on edge. However, it is important to note that the tools released are older and have reportedly been patched by the respective technology companies.

Putting the WikiLeaks release aside, there seems to be little concern from the public over what U.S. intelligence agencies do in their efforts to conduct foreign surveillance. However, what has raised some concerns is when foreign surveillance includes the surveillance of U.S. citizens. Recently, this has come to the attention of many Americans with the announcement that surveillance of U.S. citizens occurred while intelligence agencies monitored Russian communications during the 2016 election. It should be noted that this type of surveillance on U.S. citizens falls into a category known as incidental collection. While incidental collection is nothing new, the ongoing 2016 election investigation has resulted in the release of names and information of U.S. citizens. The disclosure of personal information has caused some people to worry that the intelligence community is not protecting our information as closely as they contend. However, this is the FISA Amendments Act doing exactly what it is designed to do. While incidental surveillance will always be an issue if surveillance exists, the recent focus on it is more relevant than ever as the FISA Amendments Act is set to expire on December 31, 2017. This presents an opportunity for Americans to voice their concerns and either continue down the path we are on, or request that changes be made.

For some, these methods of spying and releasing of personal information will create paranoia, for others anger, but for most they will create no disruption to their daily lives. Each of these responses alone demonstrates a failure within our society. In the face of the ever-growing foreign threats, it is of the utmost importance that we have a conversation about how we combat it. As members of society do we not owe a duty to one another to prevent harm from befalling us? If so, to what length does that duty extend? Should the government be given greater leeway in protecting civilians from terrorism, or would we rather risk greater harm for greater privacy? Is it enough to leave it to private companies to push back against government intrusions? If history is any indicator it seems that our privacy rights will continue to give way to combat the grave threats before us. To prevent this seemingly inevitable future, as we move forward in our efforts to protect Americans—and whatever the next threat may be—the logic behind the need for surveillance should not go unchallenged or be considered infallible. Just because the right to privacy was not designed to be an absolute right does not mean it should be cast aside.

Leo Mata is a J.D. student at Texas Law, Rapoport Center Fellow, and a member of the 2016-2017 Working Paper Series Editorial Committee.