The case against Backpage was built on lies, innuendo, and a willful misunderstanding of how the internet works. But that didn’t stop the government from destroying the company and its founders’ lives. Over the last few years, we’ve written about how the entire case against Backpage was a travesty of justice. The company actually worked […]

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Privacy: In the analog world of our parents, as an ordinary citizen and not under surveillance because of being a suspect of a crime, it was taken for granted that you could walk around a city without authorities tracking you at the footstep level. Our children don’t have this right anymore in their digital world.

Not even the dystopias of the 1950s — Nineteen Eighty-Four, Brave New World, Colossus, and so on, managed to dream up the horrors of this element: the fact that every citizen is now carrying a governmental tracking device. They’re not just carrying one, they even bought it themselves. Not even Brave New World could have imagined this horror.

It started out innocently, of course. It always does. With the new “portable phones” — which, at this point, meant something like “not chained to the floor” — authorities discovered that people would still call the Emergency Services number (112, 911, et cetera) from their mobile phones, but not always be capable of giving their location themselves, something that the phone network was now capable of doing. So authorities mandated that the phone networks be technically capable of always giving a subscriber’s location, just in case they would call Emergency Services. In the United States, this was known as the E911 regulation (“Enhanced 9-1-1”).

This was in 2005. Things went bad very quickly from there. Imagine that just 12 years ago, we still had the right to roam around freely without authorities being capable of tracking our every footstep – this was no more than just over a decade ago!

Before this point, governments supplied you with services so that you would be able to know your location, as had been the tradition since the naval lighthouse, but not so that they would be able to know your location. There’s a crucial difference here. And as always, the first breach was one of providing citizen services — in this case, emergency medical services — that only the most prescient dystopians would oppose.

What’s happened since?

Entire cities are using wi-fi passive tracking to track people at the individual, realtime, and sub-footstep level in the entire city center.

Train stations and airports, which used to be safe havens of anonymity in the analog world of our parents, have signs saying they employ realtime passive wi-fi and bluetooth tracking of everybody even coming close, and are connecting their tracking to personal identifying data. Correction: they have signs about it in the best case but do it regardless.

People’s location are tracked in at least three different… not ways, but categories of ways:

Active: You carry a sensor of your location (GPS sensor, Glonass receiver, cell tower triangulator, or even visual identifier through the camera). You use the sensors to find your location, at one point in time or continuously. The government takes itself the right to read the contents of your active sensors.

Passive: You take no action, but are still transmitting your location to the government continuously through a third party. In this category, we find cell tower triangulation as well as passive wi-fi and bluetooth tracking that require no action on behalf of a user’s phone other than being on.

Hybrid: The government finds your location in occasional pings through active dragnets and ongoing technical fishing expeditions. This would not only include cellphone-related techniques, but also face recognition connected to urban CCTV networks.

Privacy of location is one of the Seven Privacies, and we can calmly say that without active countermeasures, it’s been completely lost in the transition from analog to digital. Our parents had privacy of location, especially in busy places like airports and train stations. Our children don’t have privacy of location, not in general, and particularly not in places like airports and train stations that were the safest havens of our analog parents.

How do we reinstate Privacy of Location today? It was taken for granted just 12 years ago.

Privacy: Our analog parents had the right to meet whomever they liked, wherever they liked, and discuss whatever they liked, without the government knowing. Our digital children have lost this, just because they use more modern items.

For a lot of our digital children’s activities, there’s no such thing as privacy anymore, as they naturally take place on the net. For people born 1980 and later, it doesn’t make sense to talk of “offline” or “online” activities. What older people see as “people spending time with their phone or computer”, younger see as socializing using their phone or computer.

This is an important distinction that the older generation tends to not understand.

Perhaps this is best illustrated with an anecdote from the previous generation again: The parents of our parents complained that our parents were talking with the phone, and not to another person using the phone. What our parents saw as socializing (using an old analog landline phone), their parents in turn saw as obsession with a device. There’s nothing new under the sun.

(Note: when I say “digital children” here, I am not referring to children as in young people below majority age; I am referring to the next generation of fully capable adult professionals.)

This digital socializing, however, can be limited, it can be… permissioned. As in, requiring somebody’s permission to socialize in the way you and your friends want, or even to socialize at all. The network effects are strong and create centralizing pressure toward a few platforms where everybody hang out, and as these are private services, they get to set any terms and conditions they like for people assembling and socializing – for the billions of people assembling and socializing there.

Just as one example to illustrate this: Facebook is using American values for socializing, not universal values. Being super-against anything even slightly naked while being comparatively accepting of hate speech is not something inherently global; it is strictly American. If Facebook had been developed in France or Germany instead of the US, any and all nudity would be welcomed as art and free-body culture (Freikörperkultur) and a completely legitimate way of socializing, but the slightest genocide questioning would lead to an insta-kickban and reporting to authorities for criminal prosecution.

Therefore, just using the dominant Facebook as an example, any non-American way of socializing is effectively banned worldwide, and it’s likely that people developing and working with Facebook aren’t even aware of this. But the Freedom of Assembly hasn’t just been limited in the online sphere, but also in the classic analog offline world where our analog parents used to hang out (and still do).

Since people’s locations are tracked, as we saw in the previous post, it is possible to match locations between individuals and figure out who was talking to whom, as well as when and where this happened, even if they were only talking face to face. As I’m looking out my window from the office writing this piece, it just so happens that I’m looking at the old Stasi headquarters across from Alexanderplatz in former East Berlin. It was a little bit like Hotel California; people who checked in there tended to never leave. Stasi also tracked who was talking to whom, but required a ton of people to perform this task manually, just in order to walk behind other people and photograph whom they were talking to — and therefore, there was an economic limit to how many people could be tracked like this at any one time before the national economy couldn’t sustain more surveillance. Today, that limit is completely gone, and everybody is tracked all the time.

Do you really have Freedom of Assembly, when the fact that you’ve associated with a person — indeed, maybe just spent time in their physical proximity — can be held against you?

I’m going to illustrate this with an example. In a major leak recently, it doesn’t matter which one, a distant colleague of mine happened to celebrate a big event with a huge party in near physical proximity to where the documents were being copied at the same time, completely unaware and by sheer coincidence. Months later, this colleague was part of journalistically vetting those leaked documents and verifying their veracity, while at this time still unaware of the source and that they had held a big party very close to the origin of the documents.

The government was very aware of the physical proximity of the leak combined with this person’s journalistic access to the documents, though, and issued not one but two arrest-on-sight warrants for this distant colleague based on that coincidence. They are now living in exile outside of Sweden, and don’t expect to be able to return home anytime soon.

Privacy, including Privacy of Location, remains your own responsibility.

Privacy: Ross Ulbricht handed in his appeal to the U.S. Supreme Court last week, highlighting an important Analog Equivalent Privacy Right in the process: Just because you’re using equipment that makes a third party aware of your circumstances, does that really nullify any expectation of privacy?

In most constitutions, there’s a protection of privacy of some kind. In the European Charter of Human Rights, this is specified as having the right to private and family life, home, and correspondence. In the U.S. Constitution, it’s framed slightly differently, but with the same outcome: it’s a ban for the government to invade privacy without good cause (“unreasonable search and seizure”).

U.S. Courts have long held, that if you have voluntarily given up some part of your digitally-stored privacy to a third party, then you can no longer expect to have privacy in that area. When looking at analog equivalence for privacy rights, this doctrine is atrocious, and in order to understand just how atrocious, we need to go back to the dawn of the manual telephone switchboards.

At the beginning of the telephone age, switchboards were fully manual. When you requested a telephone call, a manual switchboard operator would manually connect the wire from your telephone to the wire of the receiver’s telephone, and crank a mechanism that would make that telephone ring. The operators could hear every call if they wanted and knew who had been talking to whom and when.

Did you give up your privacy to a third party when using this manual telephone service? Yes, arguably, you did. Under the digital doctrine applied now, phonecalls would have no privacy at all, under any circumstance. But as we know, phonecalls are private. In fact, the phonecall operators were oathsworn to never utter the smallest part of what they learned on the job about people’s private dealings — so seriously was privacy considered, even by the companies running the switchboards.

Interestingly enough, this “third-party surrender of privacy” doctrine seems to have appeared the moment the last switchboard operator left their job for today’s automated phone-circuit switches. This was as late as 1983, just at the dawn of digital consumer-level technology such as the Commodore 64.

This false equivalence alone should be sufficient to scuttle the doctrine of “voluntarily” surrendering privacy to a third party in the digital world, and therefore giving up expectation of privacy: the equivalence in the analog world was the direct opposite.

But there’s more to the analog equivalent of third-party-service privacy. Somewhere in this concept is the notion that you’re voluntarily choosing to give up your privacy, as an active informed act — in particular, an act that stands out of the ordinary, since the Constitutions of the world are very clear that the ordinary default case is that you have an expectation of privacy.

In other words, since people’s everyday lives are covered by expectations of privacy, there must be something outside of the ordinary that a government can claim gives it the right to take away somebody’s privacy. And this “outside the ordinary” has been that the people in question were carrying a cellphone, and so “voluntarily” gave up their right to privacy, as the cellphone gives away their location to the network operator by contacting cellphone towers.

But carrying a cellphone is expected behavior today. It is completely within the boundaries of “ordinary”. In terms of expectations, this doesn’t differ much from wearing jeans or a jacket. This leads us to the question; in the thought experiment that yesterday’s jeans manufacturers had been able to pinpoint your location, had it been reasonable for the government to argue that you give up any expectation of privacy when you’re wearing jeans?

No. No, of course it hadn’t.

It’s not like you’re carrying a wilderness tracking device for the express purpose of rescue services to find you during a dangerous hike. In such a circumstance, it could be argued that you’re voluntarily carrying a locator device. But not when carrying something that everybody is expected to carry — indeed, something that everybody must carry in order to even function in today’s society.

When the only alternative to having your Constitutionally-guaranteed privacy is exile from modern society, a government should have a really thin case. Especially when the analog equivalent — analog phone switchboards — was never fair game in any case.

People deserve Analog Equivalent Privacy Rights.

Until a government recognizes this and voluntarily surrenders a power it has taken itself, which isn’t something people should hold their breath over, privacy remains your own responsibility.

Privacy: In the analog world of our parents, it was absolutely unthinkable that the government would demand to know every footstep you took, every phonecall you made, and every message you wrote, just as a routine matter. For our digital children, government officials keep insisting on this as though it were perfectly reasonable, because terrorism, and also, our digital children may be listening to music together or watching TV together, which is illegal in the way they like to do it, because of mail-order legislation from Hollywood. To make things even worse, the surveillance is retroactive — it is logged, recorded, and kept until somebody wants all of it.

About ten years ago, a colleague of mine moved from Europe to China. He noted that among many differences, the postal service was much more tightly controlled — as in, every letter sent was written by hand onto a line in a log book, kept by the postmaster at each post office. Letter from, to whom, and the date.

At the time, three things struck me: one, how natural this was to the Chinese population, not really knowing anything else; two, how horrified and denouncing our analog parents would have been at this concept; three, and despite that, that this is exactly what our lawmaker analog parents are doing to all our digital children right now.

Or trying to do, anyway; the courts are fighting back hard.

Yes, I’m talking about Telecommunications Data Retention.

There is a saying, which mirrors the Chinese feeling of normality about this quite well: “The bullshit this generation puts up with as a temporary nuisance from deranged politicians will seem perfectly ordinary to the next generation.”

Every piece of surveillance so far in this series is amplified by several orders of magnitude by the notion that it you’re not only being watched, but that everything you do is recorded for later use against you.

This is a concept so bad, not even Nineteen-Eighty Four got it: If Winston’s telescreen missed him doing something that the regime didn’t want him to do, Winston would have been safe, because there was no recording happening; only surveillance in the moment.

If Winston Smith had had today’s surveillance regime, with recording and data retention, the regime could and would have gone back and re-examined every earlier piece of action for what they might have missed.

This horror is reality now, and it applies to every piece in this series. Our digital children aren’t just without privacy in the moment, they’re retroactively without privacy in the past, too.

(Well, this horror is a reality that comes and goes, as legislators and courts are in a tug of war. In the European Union, Data Retention was mandated in 2005 by the European Parliament, was un-mandated in 2014 by the European Court of Justice, and prohibited in 2016 by the same Court. Other jurisdictions are playing out similar games; a UK court just dealt a blow to the Data Retention there, for example.)

Privacy remains your own responsibility.

Privacy: For our analog parents, a diary or a personal letter could rarely be touched by authorities, not even by law enforcement searching for evidence of a crime. Objects such as these had protection over and above the constitutional privacy safeguards. For our digital children, however, the equivalent diaries and letters aren’t even considered worthy of basic constitutional privacy.

In most jurisdictions, there is a constitutional right to privacy. Law enforcement in such countries can’t just walk in and read somebody’s mail, wiretap their phonecalls, or track their IP addresses. They need a prior court order to do so, which in turn is based on a concrete suspicion of a serious crime: the general case is that you have a right to privacy, and violations of this rule are the exception, not the norm.

However, there’s usually a layer of protection over and above this: even if and when law enforcement gets permission from a judge to violate somebody’s privacy in the form of a search warrant of their home, there are certain things that may not be touched unless specific and additional permissions are granted by the same type of judge. This class of items includes the most private of the personal: private letters, diaries, and so on.

Of course, this is only true in the analog world of our parents. Even though the letter of the law is the same, this protection doesn’t apply at all to the digital world of our children, to their diaries and letters.

Because the modern diary is kept on a computer. If not on a desktop computer, then certainly on a mobile handheld one — what we’d call a “phone” for historical reasons, but what’s really a handheld computer.

And a computer is a work tool in the analog world of our parents. There are loads of precedent cases that establish any form of electronic device as a work tool, dating back well into the analog world, and law enforcement is falling back on all of them with vigor, even now that our digital devices are holding our diaries, personal letters, and other items far more private than an analog diary was ever capable of.

That’s right: whereas your parents’ diaries were extremely protected under the law of the land, your children’s diaries — no less private to them, than those of your parents were to your parents — are as protected from search and seizure as an ordinary steel wrench in a random workshop.

So the question is how we got from point A to point B here? Why are the Police, who know that they can’t touch an analog diary during a house search, instantly grabbing mobile phones which serve the same purpose for our children?

“Because they can”, is the short answer. “Also because nobody put their foot down” for advanced points on the civics course. It’s because some people saw short term political points in being “tough on crime” and completely erasing hard-won rights in the process.

Encrypt everything.