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Privacy: Is it dead or just being renegotiated?

Taylor Armerding | March 7, 2016
Personal privacy was a hot topic at RSA this year. And while there was universal agreement that it is a problem, not everybody thinks it is completely dead.

It would have been hard to find anybody at this past week’s RSA conference who doesn’t think privacy is a problem. The topic even had its own track, with more than six dozen sessions.

There is a bit less agreement, however, on how big a problem. It is not a large divide, but two presentations illustrated it well.

The first view is that the loss of privacy is reaching a catastrophic level. According to Theodore F. Claypoole, a partner at Wombie Carlyle, modern technology is not only eroding your privacy. It is eroding the legal standard for your “reasonable expectation” of it.

That unsettling message came with an equally unsettling title: “The gasping death of the reasonable expectation of privacy.”

Claypoole offered stark examples. He said at present, the police cannot legally burst through your door unannounced, or even monitor what you are doing in your home through the use of heat and power signals – at least not without a warrant – because that would violate the current “reasonable expectation” standard.

“But the legal standard used by the government to protect your privacy is withering away,” he said.

“What’s making it wither? The things we’re using, from a Hello Barbie doll to your car, smartphone and cell towers and more. What reasonable person would expect privacy when all this is around us?” he asked.

The withering of privacy, he said, is illustrated in things like the FBI taking the DNA of a person without consent or a warrant, like bosses reading the emails of their employees or police demanding to take a person’s mobile phone.

The Fourth Amendment, which protects, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …” provides a framework for privacy, he said, “but the Supreme Court hasn’t come up with standard about what that means to your stuff.”

And with ubiquitous tracking systems that not only collect metadata on where we are, who we call and our online life but also have improved facial and voice recognition, “there are better records of everything we do,” he said, adding that there is, “constant pressure from law enforcement to get deeper and deeper into accessing that information.

Claypoole said it is at the point where the options are to lose privacy entirely, or for the nation’s elected leaders to set a new standard for it. He called for, “certain acts, matters and behaviors to be declared private when they are done in a private space, and that government is excluded from collecting and viewing data about those behaviors without a warrant.

“Don’t let Hello Barbie take away your rights,” he said.


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