This week was rich with Internet privacy ironies. First, we had Edward Snowden and Eric Schmidt at South by Southwest, each talking about privacy, and then Mark Zuckerberg phoning Obama, who was recently profiled in The New Yorker, to complain about the N.S.A.
Edward Snowden apparently has shifted his gaze to consumer privacy. Then Eric Schmidt gets up on stage and prognosticates that in the future consumers can buy privacy … back. Well, he didn’t say the “back” part, because of course he is not going to announce that Google as principal Internet Titan, and an advertising company to boot, has almost single-handedly been responsible for denuding consumers of it in the first place. How does it work? Data mining of everything from searches to data stores (email, blogs, etc.) and then selling the information for targeted advertising. Search vitamins, and you will suddenly see ads for vitamins and supplements on your web pages.
Wait, wait, there’s more. Let’s say you are on a store web site, buying camping equipment. You put a couple of things in your shopping cart. Your neighbor suddenly drops in for a cup of coffee, and 15, 20 minutes goes by without activity on the transactional page. Your phone rings. It is the store asking if you need any help in completing your order. But you have never done business with them before. How do they even know your phone number? Could be a thousand ways: a Google, for example, could have sold your contact information to a data store such as Axiom, which has a full-fledged profile on you, which they sell to companies such as the camping store for use in exactly this kind of moment. And now Eric Schmidt tells us that there may be a market to buy my privacy back. Information about me, my life, my preferences, shopping and travel habits, income and assets, number of children, who my neighbors and friends and work associates are, and heaven only knows what else. The manner in which they identify patterns based on millions of people and sophisticated software, in some behavioral ways these companies may know more about me than I do. Privacy as a luxury, that Google will sell me. That is rich.
Then Mark Zuckerberg called President Obama to complain about another Snowden disclosure. The New York Times did not report President Obama’s response, but read the recent David Resnick profile of Obama in the New Yorker. Obama claims that the N.S.A. activity is legal, but in whose opinion? “Trust me” approval of a secret court is a tautology.
Let’s pull out the threads of this idea. Say that the D.O.J., on behalf of the N.S.A., goes to the FISA Court with a warrant alleging persons associated with terrorism and a request for content monitoring of their Internet activities. The Court will review the request, first, to see if the evidence meets the standard of a person significant to a terrorist investigation, and second, for probable cause of criminal activity. Assuming that the application meets both of these standards, they grant approval. Note at this juncture, because of the closed nature of these proceedings, the public does not know: the quality of the evidence, because, after all, the FISA Court is not only secret, but ex parte, meaning that there is no opposing counsel. Nor do we know the extent of these investigations, their scope, or how long they last. What is done with the information about these persons? Do these investigations include U.S. persons (either citizens or resident aliens – a legal term, by the way) either directly as a target or individuals as caught up in the sweep, a few degrees of separation away?
How much do the justices know or understand about the technological processes underlying these searches? This is a fascinating question even for regular, criminal, Title III Courts; the secrecy surrounding the FISA Court makes the question all the more intriguing. Apparently, the N.S.A. spoofs Facebook login pages and the plants malicious code on a target’s computer. Do the justices have a fundamental understanding of network and computer technology, together with the nature and functionality of code installed surreptitiously for nefarious purposes? Do they understand the depth of these deceptions and the quality of these intrusions? Is this the same technology used in advanced persistent threats against our colleges and universities? Must an empire operate with principles that compete with a republic? Does national security trumps civil liberties? Who wins in that game, the public or the terrorists?
If these questions were not sufficiently overwhelming to baffle citizens, then leave it to Mark Zuckerberg to dress down President Obama over his administration’s surreptitious activities. Take a look at the comments section associated with the New York Times article. Most of them get the irony. An Internet Titan striking the pose of upset citizen. Mr. Zuckerberg is upset that the government is messing with the trust concepts that undergird his multi-billion dollar company. Mark Zuckerberg not only knows you better than you know yourself, he knows what you will want in the future! Since you have given up information about yourself to him anyway, he figures that you want him to define your autonomy. And then, just when he had us all snookered, the N.S.A. steps in to ruin his brain-child.
Isn’t that rich?
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