I Spy with my Little Eye: Is the Construct of Privacy Disappearing in the Wake of the Technology Age?

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By: Treja Jones

Despite the fact that privacy is not a constitutionally guaranteed right, people can reasonably expect that when they are alone, they are not being watched, recorded, or studied . . . or at least, that was true at one point. In today’s technologically advanced society, it could very well be that no matter where you are, or what you’re doing, you’re never actually alone; you’re always being recorded, watched, or tracked in some way, shape or form. Advancements in technology, such as video surveillance, facial recognition, and the like, were created with intentions of simplifying both the process of criminal investigation and the routines of everyday life. But how far is too far? Are you ever actually alone? Do you ever actually have privacy?

The Constant Supervision of Surveillance Cameras

The use of video surveillance cameras has become widespread across the country. Spurred by fear of terrorism and rising crime, businesses, law enforcement, and the Government have taken to constant supervision of U.S. citizens via thousands of surveillance camera systems. At any given point while you are out in public, shopping at the supermarket, walking down the city streets, or even on your own front lawn, you could be simultaneously being watched, tracked or monitored by nearby video cameras.

Increased use of surveillance cameras has augmented mounting concerns about video surveillance and personal privacy. As Alan Wohlstetter stated in his article, “At What Point does Surveillance Violate Privacy Rights”, “[t]he prolonged targeting of video surveillance cameras creates a complete picture of the private life of an individual.” Through the use of surveillance cameras, law enforcement has the ability to identify and track citizens for unregulated amounts of time, and without reasonable cause. For example, in 2012, a police department in Maryland was sued for GPS tracking a car they identified using a surveillance camera, for 28 days straight. Similarly, in 2014, a Washington resident arrested for possession of cocaine, challenged the legality of local law enforcement after they continuously observed his front yard for six weeks with a surveillance camera that had “zooming and panning capabilities”, and was hidden on a telephone pole near the resident’s home. The capability of constant surveillance is accompanied by the potential for misuse of surveillance cameras.

Concerns with regard to abuse of surveillance camera footage include the potential for discriminatory targeting, voyeurism, stalking, and institutional abuse such as spying by law enforcement. Additionally, the widespread use of surveillance cameras has been taken advantage of and used for criminal acts.

In 1997, for example, a top-ranking police official in Washington, DC was caught using police databases to gather information on patrons of a gay club. By looking up the license plate numbers of cars parked at the club and researching the backgrounds of the vehicles’ owners, he tried to blackmail patrons who were married.

Regulation with regard to the use of surveillance cameras is very limited. The Government, government agencies and even private corporations are able to use surveillance camera technologies in the name of public safety and security. Rising concerns about terrorism and crime justify the need for increased surveillance of public areas. While the law restricts the use of surveillance cameras in spaces where people may have a reasonable expectation of privacy, such as in the home, in public places, where people cannot have such an expectation, the law places very few restrictions on security camera use.

As if the potential for constant video surveillance was not frightening enough, similar technological advancements have created even more invasive ways for agencies to intrude upon the privacy of citizens.

The Listening Capabilities of Microphone Enabled Devices  

Even more unnerving than the potential for constant video supervision via surveillance cameras, is the possibility that microphone enabled devices, such as smartphones, laptops, and speakers with built in microphones, such as Amazon Echo’s Alexa, are constantly listening in on private conversations. Ever said something to a friend and then returned to your smartphone or computer to find that an ad for the exact same thing has surfaced on your webpage or social media newsfeed? Microphone enabled devices can be triggered by certain words or phrases, and once triggered continue to listen in on conversations. Google, for example, even allows its Google account users to log into their profile and search for a list of audio recordings recorded by smartphones and any other device where a user has activated Google Voice Search.

This listening capability of microphone enabled devices is especially concerning because, “companies are certainly applying algorithms to look for patterns and determine potentially useful things about your behaviors and interests.” Various types of companies could be using audio data to reveal all sorts of things about a person. “Even if you think you’re not saying anything very interesting or worthwhile, the data gets married and mingled with lots of other kinds of data that can create a very detailed picture of you.” Some studies and data even suggest that your smartphone could be listening while you are sleeping. 

Fortunately, there are laws in place to protect the use of biometric information collected by microphone enabled devices. But these laws may only apply in certain instances and pertain to only certain collected data. Federal law classifies voice characteristics that identify an individual as a “voice print,” and voice prints are considered personal records thus protected by federal policies such as the Privacy Act, FERPA, and HIPPA. Additionally, “several states have expanded their legal definitions of personally identifiable information in certain identity theft or breach notification laws to include some form of biometrics.” The Federal Wire-tap Act further prohibits, “the intentional interception of the contents of any wire, oral, or electronic communication without the prior consent of at least one of the parties,” and most states have similar laws requiring consent prior to recording private conversations. However, there is often little way to know if information collected by a microphone-enabled device is used someplace else. So, to avoid the potential misuse of recorded conversation by a microphone-enabled device, it’s good to be aware that these devices pick up on private conversation, and to perhaps look into ways that the microphone can be disabled when not in use. Unfortunately, snooping cameras and nosey microphone devices are not the only invasive technologies Americans have to worry about.

Facial Recognition Technologies & Privacy Concerns  

Facial recognition technology is being increasingly used throughout the country for various purposes. Law enforcement uses facial recognition software to identify and track down criminals, social media uses facial recognition software to automatically tag users in posts, and smartphones are employing face recognition technologies to allow users to unlock their device, open apps, and even use a credit card to make a purchase. It goes without saying that the more devices and programs that recognize your face, the easier it will be for companies and agencies to identify you. Though face recognition technologies were created with the intentions of simplifying processes of identification and increasing security measures, the use of facial recognition software, as you can imagine, has raised privacy concerns.

A significant basis for concerns surrounding face recognition technologies is the fact that the use of such software is largely unregulated. As an example, “Unlike other tracking methods, such as GPS or RFID, facial recognition does not require the tracked individual to carry any special device or tag, reducing consumers’ ability to thwart unwanted tracking.” Additionally, as with many other modern technological forms of surveillance and identification, facial recognition technologies are accompanied by concerns regarding potential misuse, demographic targeting, and misidentification. Also alarming is the fact that facial recognition software, “has the potential to remove the anonymity we expect in crowds and most public places,” since some surveillance cameras now have facial recognition capabilities.

Though “there are no federal laws that specifically govern the use of facial recognition technology,” a couple states have enacted laws that prohibit the use of such technology to identify individuals without their informed consent. These states include Texas, which enacted a law limiting how biometric data can be collected, stored, and used, and Illinois, which enacted the Biometric Information Privacy Act, a law that requires consent prior to use of certain biometric data. The policies of both states were enacted with facial-recognition technologies in mind. But the use of such technology is for the most part largely unregulated. “Legislation is seldom ahead of science,” and unfortunately with regard to face-recognition technologies, this holds to be true. But our faces aren’t the only identifying characteristics about us online that are susceptible to misuse; with so much of our personal information available online and stored in our devices, the vulnerability of modern data has substantially increased.

Hacking and Vulnerability of Modern Data

The more information we store online, including identifying features of our faces, the more susceptible we are to stolen data. More and more Americans are beginning to store data such as credit card and banking information, personal photographs and videos, and device and program passwords and usernames online for easy access. But storing such information about ourselves online, opens us up to attack by hackers who search for personal information and steal identities. Entering personal information on websites and apps allows those programs to collect that data, and when databases of information are cyber-hacked, that data becomes vulnerable to potential misuse. Even WIFI networks are susceptible to hacking. “As the number of data networks, digital applications, as well as internet and mobile users are growing, so do the chances of cyber exploitation and cyber -crimes.” Cyber-hacking provides yet another method for others to intrude upon our personal privacy.

Laws such as the Computer Fraud and Abuse Act, create criminal penalties for hacking into computers and other electronic devices without authorization. “In addition to the Computer Fraud and Abuse Act, there are a couple of other laws that deal with “computer hacking” offenses,” such as the CAN-SPAM Act, which protects against unsolicited commercial email, and the Stored Communications Act, which protects against hacks into electronic communications such as emails and voicemails, and various cyberstalking statutes. These laws serve to punish offenders who illegally access devices and their stored information but do very little to prevent hacking from happening in the first place. The best way to prevent unauthorized access or misuse of personal information that is stored on a device is to limit the amount of the information used on such devices, and to change passwords and usernames to personal accounts frequently.

In today’s modern world, technological advancements have made it very difficult, or perhaps even impossible, to ever truly be alone. The lack of laws and policies to regulate video surveillance, microphone recorded conversations, facial recognition technologies, and the ever increasing susceptibility of our personal information to cyber-hacking threatens both our personal privacy, and arguably our liberty. Technology will continue to advance in ways that threaten what’s left of the construct of privacy; we can only hope that the law will respond to these advancements with limitations and regulations that keep our identities and our sense of privacy safe.

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