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Big Brother is listening as well as watching

Taylor Armerding | July 4, 2016
Audio surveillance on mass transit systems is all about passenger safety, according to officials. But civil liberties advocates call it a ‘gross violation of privacy.’ And they recently won the debate in New Jersey, where the program on some light-rail lines was shut down

It’s not just about privacy, it’s about freedom of speech. Declaring open season on conversations just because they take place in public or communal space will have a chilling effect.

Rebecca Herold, CEO of The Privacy Professor

rebecca herold

Transit officials say their initiative is all about protecting passengers. But the debate continues about when public safety measures trample citizens’ right to privacy.

Lee Tien, senior staff attorney at the Electronic Freedom Foundation (EFF), said deterrence, “is a reasonable thing, but the hard questions remain.

“Does it actually deter? There’s no point in sacrificing people’s privacy for nothing. What are they doing? Is there any evidence from places that have used it that it helps? Indiscriminate mass surveillance produces a lot of data to process, and we often hear that it’s not analyzed, or that it produces too many crappy leads to chase after.”

Herold agreed. She said terrorists bent on attacking a mass transit system, “will just communicate ahead of time, or figure out a way to communicate that does not get picked up by the audio bugs. They are not effective deterrents to those who want to cause harm.”

Of course, most transit agencies that do audio surveillance post signs notifying riders that it is in use. And some might argue that people cannot expect privacy in public places.

That is the view of David Adler, founder of the Adler Law Group, who said, “as a general rule, one has no expectation of privacy in a public place.”

He also noted that the law governing audio surveillance is, “unsettled, developing and varies by jurisdiction.”

But Tien contends that, “the law has long understood that privacy protects persons, not places. The Supreme Court decision in U.S. v Jones (which held in 2012 that police had conducted a “search” under the Fourth Amendment by using a GPS device to track a suspected drug dealer’s car) moves us in that direction,” he said. “All nine justices essentially found that the cops violated privacy expectations by tracking a car over an extended period of time.”

He added that it is one thing for people to overhear a conversation in a public place, but another thing entirely for anyone – especially the government – to record and save such conversations.

However, in some areas, he agreed that the law is fuzzy. While Title III of the Omnibus Crime Control Act Wiretap Act, generally known as the Wiretap Act, protects oral communications, “such term does not include any electronic communication,” he said.

Herold calls the mass, indiscriminate collection of oral conversations, “a gross violation of privacy.” She said when government authorities, “refuse to answer basic questions about who is getting access to the recordings, how they are being used, and how long they are using them, that raises many privacy red flags.”

 

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