In the Era of Data Collection

One of the two final reports from my Privacy Law Ⅰ class.

Information has never been this free before. In the past thirty years, the human race has experienced tremendous advancement on the manufacturing of electronic device. Connectivity chips and optical lens become smaller and cheaper to build, while sensors and unmanned drones are ominous around our lives. It is without doubt that the Digital Era made knowledge and friends available at the fingertips, but so do us. Search engines and social media filter our view of the world; governmental agencies collect trails from our routine activities. We sit on top of a 21st-century gold rush – public and private actors nowadays are the miners; our personal information is the new gold.

It’s barely possible to keep oneself outside the lens these days. Axon, the world’s largest vendor of police-worn body camera, is offering their hardware free of charge for all law enforcement agencies to test with.1 The business model behind the move, however, is to promote their cloud service Evidence.com, which actively collects and analyzes footage uploaded from their products, turning equipped police officers into “walking surveillance cameras.” Its use “will make ‘for better police-citizen interaction,’” as stated by San Francisco Police Department, and to “restore public trust”, said police chief of Albuquerque.2 The said purpose is questioned as past records showed that the police “break, lose, switch off, or fail to activate the cameras; departments have tampered with or withheld their footage.” Civil rights groups speculated that the equipment of body cameras “is more likely to be used to profile people who the police already target.”3

This aligns with the company’s recent announcement of “‘Axon Citizen’, a new ‘public safety portal’ that lets civilians submit [media] files directly to participating [] agencies that use its [] service.”4 The uploaded materials are suspected to be used to train Axon’s deep learning model, which the company could further monetize on under the name of “anticipat[ion of] criminal activit[ies]”, or even boarder identification of individual citizens.5

The mass collection of footages clashes with the key concern of privacy in public space. Generally, activities performed in public does not necessarily protected by privacy, giving way to public interest and the freedom of press. As seen in Gill v. Hearst Pub. Co., “with their own voluntary assumption of this particular pose in a public place, plaintiffs' right to privacy as to this photographed incident ceased and it in effect became a part of the public domain … as to which they could not later rescind their waiver in an attempt to assert a right of privacy.”6

However, the legitimacy of surveillance in the public space is not always dominant. Constant, persistent, or massive monitoring of an individual under public exposure risked the obscurity one enjoyed in their life, and is recognized as an intrusion upon one’s seclusion. “A person does not automatically make public everything he does merely by being in a public place,” stated the New York Court of Appeals in Nader v. General Motors Corp.7, “under certain circumstances, surveillance may be so ‘overzealous’ as to render it actionable.” In the concurrence, Judge Breitel stated that though single acts in public may not be intrusive, “extensive or exhaustive monitoring and cataloguing of acts normally disconnected and anonymous” may arguably considered an invasion of privacy. The question was raised in the Supreme Court in U.S. v. Jones8, but the Court has yet to deal with the “thorny problem” of the reasonableness on monitoring one’s movement, and how the cause and the duration mattered to constitute a “search.”

In the case of Axon, the concerning interest – the peace and safety of the public – seems apparently compelling over individual rights. There were 1,076,054, or about 3.5 per 1000 U.S. citizens, full-time law enforcement officers reported to the FBI Uniform Crime Reporting program in 2012, from 17,398 agencies nationwide.9 Gathering and analyzing public activities at this scale is already worrying to personal seclusion, and the tracking can be more ominous in densely-populated regions such as metropolitan areas.

The call to citizens to upload footages to Evidence.com platform pose even greater threat to one’s expectation of privacy. One would never know whether an innocent witness under good faith could upload recordings of you, possibly revealing your activities and presence to an unknown number of governmental agencies. Furthermore, though it’s up to the involving agencies to withdraw from the program along with their data, the artificial intelligence model and the computed parameters are not subject to such elimination; faulty identification of crime may not open up the company to liability or duty of correction, while give the law enforcement an easy excuse to investigate under such “probable cause.”

But mass data collection is not limited to reshaping crime investigation. A recent outline published by Chinese government revealed its ambition to establish a “Social Credit System,” by which it would publicly rank the “trustworthiness” of the entire population.10 Enforced nationwide by 2020, major companies that provide fundamental communication and financial services teamed up under the name of “Sesame Credit”, drawing information from WeChat, AliPay, Didi Chuxing, and even matchmaking platforms. It takes into account not only your credit history, but your purchase habit, personal background and characteristics, opinions on social media, and even your friends’ scores. Further motivated by a privilege scheme similar to loyalty program, it is believed to reduce fake goods, establish trust and overall foster the market.

Sesame Credit apparently projects a mind-blowing future of data aggregation. With financial, transportational, and expressional behaviors combined and actively collected, it’s nearly impossible for an individual to freely explore their ideas, or relax themselves without the fear of external observation.

One of the intruded right is intellectual privacy, which is the ability to “develop ideas and beliefs away from the unwanted gaze.”11 Based on solitude (“the right to be left alone”), it is fundamental for other freedoms, as active surveillance would “chill the exercise of our civil liberties.”12 Taking account of one’s purchase or physical presence would lead to an imminent threat to one’s ability to engage courses, lectures, or reading materials; which harms the freedom of speech in a prolonged manner. Furthermore, the reward of promoting “positive energy” and government policies actually suppress one’s speech in disguise, regulating one’s expression further.

The latter one is the right of intimacy, which relates to the ability of an individual to “exercise corporate seclusion[,] so that it may achieve a close, relaxed, and frank relationship” with others.13 There is a “vital relationship between freedom to associate and privacy in one's associations” as recognized by the Supreme Court,14 and punishing one by their social interactions and deeds of their friends would leave them exposed to hostility and self-censorship.

Some could argue (as seen in Wired report) that credit score companies already evaluate us through different means of financial activities, and by participating, we voluntarily hand out our information to third-parties; however, keeping oneself off-grid in a digital age is not only impractical but also second-class. A person lived solely in private life, “who like the slave was not permitted to enter the public realm, or like the barbarian had chosen not to establish such a realm, was not fully human.”15 It is particularly dangerous of Sesame Credit, which is so dominant that one could not possibly not be tracked without giving up vital social services or citizen benefits.

Another issue worth exploring is the role of Sesame Credit, a private company that collects data under governmental regulations. We have already known the “third-party doctrine,” under which the disclosure of information to an external entity asserts the waiver of constitutional protection against unwarranted search or seizure; in Smith v. Maryland, the Supreme Court stated that one “assumed the risk” of exposure when using the telephone service.16 It is easy to conclude that mass data collection of the government, when happened in U.S., could probably survive a Fourth Amendment challenge. Furthermore, in a society that public or private actors openly stated the monitoring of action, it is possible to state that one could not reasonably expect their privacy at the first place.

This is not true. Same as an unlocked door does not grant thieves ground to trespass one’s property, a risk of information leakage does not automatically render shared information worthless or unnecessary to be protected. As said by Susan Freiwald, “courts should [instead] discharge their responsibility to mediate the tension between law enforcement’s interest [in information] and the users’ interest in avoiding government obsessive intrusion into their lives.”17 Also, personal information varied on their importance and use; a medical record provided to insurance company should not be wrongly related to one’s financial applications. The lack of distinguishing between improper connections, like the dissent mentioned in Smith, exposes the weakness of reasonable expectation of privacy test. Sesame Credit, more critical than Axon in several perspectives, is still prone to challenges of its intrusion of one’s private life.

We have passed the turning point where technologies are sparse and manageable. Our thoughts and expressions now highly overlap with our digital trails; as the collection of information continued to provide us with better services, we have become “the data” ourselves. Sticking to old and outdated Pen Register metaphors would bring us nowhere; instead, we need to have fine-grain control of the 5W1H our information is used and shared, regardless of public or private actors, in order to cope with a new age of data collection.

It’s the dominance of television show PSYCHO-PASS in real life.

  1. Elizabeth Joh, Taser International, now Axon, offers police free body cameras., Slate (Apr. 5, 2017). 

  2. Ava Kofman, Real-Time Face Recognition Threatens to Turn Cops’ Body Cameras Into Surveillance Machines, The Intercept (Mar. 22, 2017). 

  3. Ava Kofman, Taser Wants To Build an Army of Smartphone Informants, The Intercept (Sept. 21, 2017). 

  4. Cyrus Farivar, Axon Wants You (Yes, You!) to Submit Photos, Videos to Police, Ars Technica (Oct. 19, 2017). 

  5. Ava Kofman, Taser Will Use Police Body Camera Videos “to Anticipate Criminal Activity”, The Intercept (Apr. 30, 2017). 

  6. Gill v. Hearst Publishing Co., 253 P.2d 441 (1953), at 111. 

  7. Nader v. General Motors Corp., 255 N.E.2d 771 (1970), at 84. 

  8. United States v. Jones, 565 U.S. 400, 132 S. Ct. 945 (2012), at 326. 

  9. Bureau of Justice Statistics, National Sources of Law Enforcement Employment Data. (Oct. 4, 2016) 

  10. Rachel Botsman, Big Data Meets Big Brother as China Moves to Rate Its Citizens, Wired U.K. (Oct. 21, 2017). 

  11. Neil M. Richards, Intellectual Privacy, 87 Tex. L. Rev 387, 389, 439 (2008), at 299. 

  12. Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934, 1935 (2013), at 337. 

  13. Alan Westin, Privacy and Freedom (1967), at 46. 

  14. NAACP v. Ala. ex rel. Patterson, 357 U.S. 449 (1958), at 342. 

  15. Hannah Arendt, The Human Condition (1958), at 44. 

  16. Smith v. Md., 442 U.S. 735 (1979), at 291. 

  17. Susan Freiwald, First Principles of Communications Privacy, at 306.