@karmacondon, you argue that "If something is legal, ethical and moral then it doesn't matter if technology makes it easier to do or not," but I think sometimes - in situations such as this - technological advances can change society and government power so much that it changes what is ethical, moral, and even legal. Having a police officer walk a beat is certainly ethically acceptable; having drones monitor every single thing that occurs in every major city is not - scale and power of tech (especially regarding intrusiveness) matter.
In terms of reducing the scale to a single person (which I think has problems, but nonetheless), I don't think most people would classify police following someone around to see what religious ceremonies, political meetings, and protests he or she goes to is acceptable, however we don't worry as profoundly about this because police simply don't have the manpower to do it. License plate readers change this, making mass monitoring of individuals feasible.
I think the reasonableness issue comes into play in two ways:
First, its an objective test, which means reasonableness is based on factors such as democratic accountability, personal autonomy, threats of government abuse, etc.
Second, it's only "reasonable" at an individual level to expet your public locations are being logged if you expect the police have the resources to put a tail on every person in America, which is crazy (Kevin Bankston and Ashkan Soltani have a great paper on "costs" of surveillance and location tracking specifically: http://www.yalelawjournal.org/forum/tiny-constables-and-the-...). The aggregate effect of monitoring everyone's location is a very new concept, and appears very unreasonable based on social norms.
As far as arbitrariness of drawing lines, I think a clear distinction can be made in use of electronic devices to generate location data (in establishing a legal standard the question gets more complex; I recommend looking at writings on topic by Prof. Susan Freiwald, who has done excellent research on the issue). Basing a rule on use of electronic devices is the path states are going down to address both demands for cell phone location data, and directly obtaining location data through devices such as stingrays. It's a simple approach with a clear line that directly gets to the problem of electronic generation of data giving the government unprecedented power regarding location data.
Yes, the concurrance is fantastic in general, and really hits the nail on the head of why location data needs 4th Amendment protections today:
"[Location data] generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations ... trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. The Government can store such recordsand efficiently mine them for information years into the future. And because GPS monitoring is cheapin comparison to conventional surveillance techniques and,by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility.
"Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that [location tracking] making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track may alter the relationship between citizen and government in a way that is inimical to democratic society.
Hi all, Original Author of the article here - glad to see so much interest and discussion of this topic.
There are a few threads going on here but the main one seems to be: Should we care about "privacy" of information available in public, and if so, how do we set rules (Given that it's in public)?
I think the answer to the first question is undoubtedly yes because of the way technology is advancing. Yes, we've always been able to see people in public, but we've never been able to do it in a rapid automated fashion on a mass scale, or catalog and query natiowide databases. This creates new implications for privacy. In the past the government simply didn't have the resources to know exactly what religious ceremonies, political meetings, protests every American was going to. Now they do.
This may mean an expansion of 4th Amendment protections (@sharemywin mentioned the idea of a new amendment, but I think this is exactly what the 4th Amendment is for). In Jones the Supreme Court said you can't attach GPS devices to cars without a warrant, and 5 Justices said we may need this type of protection for location data generally. Since then many lower courts have applied this protection to location data generated from cell phones (even public locations), which I think is correct.
As far as setting a standard, I think the best approach is to require 4th Amendment protections for location data generated from an electronic source/device. This is what a number of states have been doing to address demands for cell phone location data and police use of stringrays. It also directly goes to the issue that electronic devices are given government unprecedented power to record, store, and query our location data, which makes that data more sensitive and suseptible to abuse.
Yes, that provision does state that any type of wire cut conducted pursuant to 7907 that cuts cell service is also labeled as denial of cell service as discussed in 7908, but denial of cell service is not limited to such situations - there can be other means of shutting down cell service, such as police co-opting a kill switch.
More importantly, this subsection certainly doesn't change the fact that your above description of 7908 as a law that "prohibits interruption of communication by law enforcement in anything other than a hostage or barricade situation" is completely inaccurate.
It is broader, and could apply to protests if there is a claim of imminent risk of great bodily harm, as police have been claiming for the last week during mistreatment of protesters and journalists in Ferguson.
I think the main reason they're passing the bill in general is a genuine desire to deter smartphone theft, and the result is a very bad policy outcome.
But keep in mind absent this law there is no mandatory kill switch in phones in the first place, so the possibility of police use en masse aginst protesters - regardless of whether law permits such co-opting or is silent on the subject - becomes much lower.
The blog post gives a full discussion of the extent to which the kill switch can be co-opted by law enforcement, and I think does so in a fair manner. It directly references both the bill's requirements for police use and PUC 7908.
Your comment, on the other hand, does not accurately describe the relevant law.
PUC 7908 states that "If a governmental entity reasonably determines that an extreme emergency situation exists that involves immediate danger of death or great bodily injury and there is insufficient time, with due diligence, to first obtain a court order, then the governmental entity may interrupt communications service without first obtaining a court order as required by this section."
Your statement that PUC 7908 prohibits interruption only in hostage or barricade situations is incorrect; those are referred to in PUC 7907, which discusses cutting phone lines. PUC 7908 involves cutting cell service, and is more broad - it uses the language quoted above.
I could easily see this applied to a protest; police say a protest will lead to looting (e.g. Ferguson), perhaps they even see plans for flash mob robbery on social media. On the basis of this, they brick every phone in a protest zone, undercutting protest organization and limiting demonstraters ability to film police abuse on smartphones.
I do not know what the legislators intended; maybe they don't know about the issue, maybe they don't care, maybe they think this is an adaquete solution and are wrong. I don't try to define their intent here, I'm simply trying to point out a very real problem with this law.
Because prior judicial approval is the key check to preventing government abuse; if police want to shut down a protest a judge potentially telling them they went too far 6 hours later is not going to help.
As a critic of the bill, I'll readily concede that smartphone theft is a major problem. It's one of the most prominant crimes in urban areas, costs billions of dollars a year, and has in several occassions caused violence.
Still, it doesn't justify a mandatory kill switch (there are a large number of free apps you can download), and it certainly doesn't justify letting police use kill switches that are installed.
Also from the actual bill (which the post includes a link to in the first line):
"Any request by a government agency to interrupt communications service utilizing a technological solution required by this section is subject to Section 7908 of the Public Utilities Code."
The bill gives direct authorization for police to use this mandatory kill switch, so long as it complies with PUC Sec. 7908, which includes an emergency exception where police don't need court approval.
Hi all; original author of this blog post, happy to see it getting so much feedback. I think it's important to highlight the risks in and out of state:
The bill says that police CAN use this mandatory kill switch, but must comply with Public Utility Code Section 7908 in doing so; that law generally requires police to get a warrant before shutting down cell service, but has an "emergency" exception where court approval is not required. I worry police could abuse this, using risk of violence as a pretense to shut down a protest as CA police did during the BART subway shutdown in 2011.
A more broad risk is that because CA is such a large market, manufacturers/providers will likely deploy this mandatory kill switch nationally, so it could end up being used in other states (such as during protests in Ferguson, Missouri)that may have absolutely no restrictions on government use of a kill switch.
Unfortunately the bill is very far along so there is not much left that can be done, but I would recommend discussing the issue on social media, and, as @javajosh suggests, contacting Governor Brown's office to express concerns and recommend a veto. The bill was passed on August 12 so he must sign or veto it by August 24.
Exactly, but the bill makes it mandatory and default on for all smartphones in CA (which will probably lead to the same happening across the U.S.) - Ferguson protesters, watch out when police tell you to stop recording on your phones
A number of tech advocacy groups including the Center for Democracy and Technology, TechFreedom, and the Electronic Frontier Foundation are making a major push this week to get the White House to support ECPA reform.
In terms of reducing the scale to a single person (which I think has problems, but nonetheless), I don't think most people would classify police following someone around to see what religious ceremonies, political meetings, and protests he or she goes to is acceptable, however we don't worry as profoundly about this because police simply don't have the manpower to do it. License plate readers change this, making mass monitoring of individuals feasible.