Page 59 - Privacy in a Cyber Age Policy and Practice

44 PRIVACY IN A CYBER AGE

many additional CCTV cameras as well as to encompass facial recognition,
cell phone tracking technologies, and even social media scanners. 104 The
data assembled is cybernated in order to identify particularly suspicious
individuals, their contacts, and their modi operandi. Data are to be deleted
within five years, but material deemed to have “continuing law enforcement
or public safety value or legal necessity” may be retained indefinitely. 105
The New York City Police Department has some accountability measures
in place to limit access, with the “type of data each officer can view” being
“tailored to their job duties,” 106 but it also shares “data and video with third
107
parties not limited to law enforcement.” Oakland, California, has already
operationalized the first phase of a similar system, and Baltimore, Mary-
land, and the United Kingdom already use similar technologies. 108
The CAPD here alludes to the same conclusions drawn from the case
of Persistent Surveillance Systems. The main difference between PSS’s
technology and the DAS is that the amount and bandwidth of informa-
tion collected by the DAS is much greater. The critical variable is whether
accountability measures sufficiently limit cybernation by guaranteeing no
fishing expeditions occur and information is not unduly shared or abused.
The NSA’s collection of phone call metadata raises numerous complex
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issues that cannot be adequately explored here. However, the ways the
CAPD would approach the program are illustrative. First of all, much dis-
cussion by those who follow the prevailing privacy doctrines has focused on
the question of collection and on suggestions that the government should
cease to collect this information and instead rely on phone companies to
keep it. The CAPD would focus much more attention on the usages of the
information. If it is true that the NSA collects only metadata and refrains
from collecting the content of calls; that it collects a large volume of infor-
mation of very narrow bandwidth and relatively low sensitivity, akin to
addresses on envelopes; that the NSA has to gain approval of an FISC judge
in order to examine the records associated with any particular individual;
and that FISC is indeed strict in granting such permissions only when there
is a compelling case, cybernation is well-limited and the program seems to
pass muster. If one or more of these suppositions are not valid, it becomes
much more difficult to justify the program given the United States’ current
security needs. To reiterate, the goal here is not to evaluate the program but
rather to call attention to the key variable that should be employed in judg-
ing it—the extent of cybernation, which includes an assessment of the level
of accountability that is in place.

iii. High Volume, Low Sensitivity, High Cybernation
The courts, in accordance with their focus on primary collection rather
than on secondary usages, have allowed surprisingly high quantities of