Page 55 - Privacy in a Cyber Age Policy and Practice

40 PRIVACY IN A CYBER AGE

sensors by the government becomes excessively intrusive on privacy only
when the information collected is either inherently sensitive or is consid-
ered jointly, or cybernated. It is only by examining all of these streams of
information that the government can piece together a comprehensive pic-
ture of the activities of the individuals contained within.
Moreover, the bubble should be extended to the digital person—that is,
to dossiers or profiles kept by the government. This deserves some elabora-
tion. An individual in a remote ranch in Montana may be free from most
physical surveillance by speed cameras, CCTVs, and other technologies.
However, his communications and Internet transactions could still be used
to form an invasive profile. The CAPD therefore holds that the personal
bubble—including personal information amassed by the government—
should only be legally penetrated if law enforcement follows given pro-
cedures and is authorized by specified authorities, in line with the very
communitarian Fourth Amendment or if only low volumes of narrow-
bandwidth information, low in sensitivity, are collected and subjected to
low or no cybernation. In other words, the CAPD should extend the right
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to privacy to the virtual person. The right to privacy should encompass
both parts of the person—the virtual and the offline. (Calling the offline
“real” disregards the increasing importance to more and more people of
the virtual part of life.)
In Jones the Court drew on two considerations. First, attaching the GPS
to a car, considered a private space, amounted to trespassing. The CAPD
would not accept this consideration for reasons previously indicated. Sec-
ond, the Court opened the door to the CAPD by suggesting that the sur-
veillance undertaken in Jones was too long. However, given the narrow
bandwidth of information collected and its relatively low sensitivity, the
CAPD would allow the surveillance at issue in Jones if cybernation was
properly limited.
In Katz v. United States, the Court used yet another rationale to find that
Katz had a reasonable expectation of privacy in a public telephone booth.
By contrast, the CAPD would hold that the police should be allowed to
install surveillance equipment on telephone booths on the grounds that
the amount of information collected is low, the bandwidth of the informa-
tion collected is limited (and could be further curtailed by using the same
procedures used in wiretaps and other methods of intelligence collection
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subject to minimization techniques ), and the information collected is not
of a sensitive nature. The CAPD would be more concerned if, even if Katz
was found innocent, law enforcement were to keep and share a record that
he was a suspect; the CAPD would therefore allow this kind of warrantless
tapping only if proper accountability measures were in place to ensure this
information is not shared inappropriately.