Page 26 - Privacy in a Cyber Age Policy and Practice

A CYBER AGE PRIVACY DOCTRINE 11

intrusive depends on the volume (duration and bandwidth, holding sensi-
tivity constant) of information collected.
Typical CCTVs—privately owned and mounted on one’s business,
parking lot, or residential lobby—belong in the middle range because they
pick up several facets (e.g., location, physical appearance, who one associ-
ates with), but do so for only a brief period of time and in one locality. The
opposite holds for Microsoft’s Domain Awareness System, first tested in
New York City in 2012. The program makes data—such as that from the
city’s CCTV cameras, arrest records, 911 calls, license plate readers, and
radiation detectors—easily and instantly accessible to the police. While the
system does not yet utilize facial recognition, it could be readily expanded
to include such technology.
Phone tapping—especially if continued for an extended period of time
and not minimized—and computer searches collect more volume. (This
should not be conflated with considerations that come under the third
dimension: whether these facts are cybernated.)
Drones are particularly intrusive because they involve much greater
bandwidth and have the potential to engage in prolonged surveillance at
relatively low costs compared to, say, a stakeout.
When the issue of extending privacy protection beyond spot collection
arose in Jones, several legal scholars, in particular Orin Kerr, pointed to the
difficulties of determining when the volume of collection was reasonable
and when it became excessively intrusive. Kerr writes: “In Jones, the GPS
device was installed for 28 days. Justice Alito stated that this was ‘surely’
long enough to create a mosaic. But he provided no reason why, and he
recognized that ‘other cases may present more difficult questions.’ May
indeed. If 28 days is too far, how about 21 days? Or 14 days? Or 3.6 days?
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Where is the line?” In response, one notes that there are numerous such
cutoff points in law, such as the number of days suspects may be detained
before they must be charged or released, the voting and driving ages, the
number of jurors necessary for due process, and so on. One may say that
they reflect what a “reasonable” person would rule. Actually, they reflect
what judges consider a compromise between a restriction that is clearly
excessive and one that’s clearly inadequate—a line that has been adjusted
often. There is no reason the volume of collection should not be similarly
governed.

3. Cybernation: Storage, Analysis, and Access

The third dimension seems to be the one that is increasing in importance
and regarding which law and legal theory have the most catching up to do.
To return to the opening deliberations of this chapter, historically, much