Tag Archives: privacy

Blowing Up Settlements

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The one being sabotaged here is between Facebook and the FTC over the FTC’s proposed settlement of Facebook’s “mishandling” of consumer privacy data, including surrendering millions of consumers’ personal information to Cambridge Analytica.

FTC Chairman Joseph Simons has the (Republican) votes he need to impose the settlement, from the FTC’s perspective, on a 3-2 partisan vote.  He’s quite rightly trying to get at least one of the Progressive-Democrats on the board to vote with him, but they’re bleating that a $5 billion fine and other controls don’t go far enough.

This is naked obstruction, though, based on a cynically manufactured beef.

Another impediment to the settlement is a textbook example of why Federal agencies ought not be spring-loaded to settle cases with miscreants.  “Settlements,” should be vanishingly rare, and they should occur only after the teeth from a history of court cases have been manifested.  This time, the block is whether

to name Facebook founder and CEO Mark Zuckerberg as a respondent in the complaint that would be filed by the agency as part of the settlement. Naming Mr Zuckerberg as a respondent could make him liable for future privacy missteps—and give the FTC leverage if it should seek to remove Mr Zuckerberg from the company’s management in the future.

Whichever party wants this included, it’s an entirely legitimate inclusion.

“Facebook representatives,” though, object, and they say Facebook will not accept a settlement that includes this.

There’s nothing here for Facebook to accept or reject, though. Facebook screwed up with consumers’ private, personal information, and the screwups identified in this putative settlement are just the latest in a long string of such…errors.  That those prior misbehaviors are not part of this case does matter in determining the price to be paid in this instance, but they should inform the FTC’s willingness to go to court rather than itself settle for a settlement.

There should be no settlement on the table or on offer in any guise.  The case should be in the courts, moving apace—the FTC should not allow Facebook’s lawyers to drag things out, and neither should the courts—with a court judgment sought. That judgment should include, at minimum, a company fine of $5 billion or more, Zuckerberg named as correspondent, and Zuckerberg personally fined for his role as the MFWIC condoning, if not actively authorizing, such privacy invasions and sales.

A Misunderstanding

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Senator Cory “Spartacus” Booker (D, NJ) has one in spades. The article at the link was centered on Progressive-Democratic Party Presidential candidate Robert Francis O’Rourke’s mild disagreement with Booker’s position on gun control, but one of the false premises that inform Booker’s misunderstanding was exposed.

Booker argued that just as a driver’s license demonstrates a person’s eligibility and proficiency to drive a car, “a gun license demonstrates that a person is eligible and can meet certain safety and training standards necessary to own a gun.”

First, Booker’s analogy is badly flawed.  A drivers license does not at all demonstrate a person’s eligibility to drive a car. Eligibility to drive comes from the person being a US citizen (or, according to many Progressive-Democrats, from their presence in the US and in a State, whether that presence is legal or not) of a State-determined minimum age, and from no other criteria.  The drivers license then demonstrates a minimum level of proficiency and knowledge of State driving laws. Other restrictions on driving then impact whether the person will be allowed to retain that license; they do not change his eligibility criteria to drive, for getting a license.  Indeed, that license must be granted on a will-issue basis on satisfactory completion of training; licensing courses cannot be used to restrict driving.

On the larger issue, a person is eligible to own a gun and to bear it solely from his status as a citizen of the United States.  Here’s what the 2nd Amendment says:

…the right of the people to keep and bear Arms, shall not be infringed.

There’s nothing in there about eligibility criteria. The only addenda to that are State-mandated criteria related to whether the person has a violent felony history.  All a gun license demonstrates is that State-mandated levels of safety and training standards, which include knowledge of State laws, have been met.  And that license must be granted on a will-issue basis on satisfactory completion of training; licensing courses cannot be used to restrict owning and bearing.

Banning Violence and Extremism from Social Media

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That’s what France and New Zealand want to do and want others to join them in doing, all in response to the terrorist murders in New Zealand.  The two intend to host a conference involving G-7 members’ IT chiefs and a separate “technology summit” aimed at getting commitments

to end the use of social media to organize and promote terrorism and extremist violence.

But whose definition of violence? Whose definition of extremism? We’re already seeing, in our nation, the Progressive-Democratic Party and their violence-oriented arms, Antifa and BLM, and their university management team associates, defining conservative speech as triggering, dangerous to mental health, violent.

This is a very slippery slope, onto which the first step may well be fatal.

Privacy in a Technological World

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In a ruling rejecting an application for a search warrant, Magistrate Judge Kandis Westmore, operating in the Northern District of California, had this remark in particular.

Citizens do not contemplate waiving their civil rights when using new technology, and the Supreme Court has concluded that, to find otherwise, would leave individuals “at the mercy of advancing technology.”

Encouragingly, this remark also cited (via the quote in the remark above) a Supreme Court ruling, Carpenter v United States [citations omitted]:

We have kept this attention to Founding-era under-standings in mind when applying the Fourth Amendment to innovations in surveillance tools.  As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” For that reason, we rejected in Kyllo a “mechanical interpretation” of the Fourth Amendment and held that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search. Because any other conclusion would leave homeowners “at the mercy of advancing technology,” we determined that the Government—absent a warrant—could not capitalize on such new sense-enhancing technology to explore what was happening within the home.

The Founders wrote our Constitution to be technology agnostic, and in fact there is no mention of technology qua technology in it.

Westmore’s ruling can be read here. Carpenter can be read here (it’s long).

A Magistrate Judge Gets One Right

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Of course, the Magistrate Judge Kandis Westmore’s ruling can be overturned on appeal by a District judge in the Northern District of California in which she operates, or on appeal on the ruling’s way up the appellate chain.  Nevertheless, her ruling stands, for now.

In its essence Westmore ruled that, even with an otherwise valid search warrant, a person cannot be compelled to unlock a digital device like a cell phone with that person’s biometrics—a fingerprint, a face, or an iris, for example.

There was a technicality that itself would have invalidated the warrant: it was overbroad.  It requested authority to unlock and search any device found inside the otherwise legally searched premises, including those owned or controlled by anyone happening to be present at the time of the search, and Westmore found that request to be neither limited to a particular person nor a particular device as the 4th Amendment requires.  That’s a 4th Amendment failure of the warrant.

The larger principle, though, flows from a 5th Amendment bar against forced self-incrimination violation. Westmore ruled that biometrics, when used in the context of a search—vis., to unlock a personal digital device—is no different from a personal passcode, and personal passcodes have already been ruled inaccessible to the government, even with a search warrant.  That would be forced testimony against oneself.  The owner of the device must voluntarily give up the passcode, and he cannot be “compelled” to volunteer [citations omitted].

The Court finds that utilizing a biometric feature to unlock an electronic device is not akin to submitting to fingerprinting or a DNA swab, because it differs in two fundamental ways. …the Government concedes that a finger, thumb, or other biometric feature may be used to unlock a device in lieu of a passcode. In this context, biometric features serve the same purpose of a passcode, which is to secure the owner’s content, pragmatically rendering them functionally equivalent.
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It follows…that if a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.

And especially this, as I’ve argued elsewhere.

That the Government may never be able to access the complete contents of a digital device, does not affect the analysis.

Government convenience must never be allowed to override the individual liberty of an American.

In the end,

The Government may not compel or otherwise utilize fingers, thumbs, facial recognition, optical/iris, or any other biometric feature to unlock electronic devices.

It matters when, and why, biometrics are used.  The outcome here, should it survive appeal, is a stout blow in favor of individual privacy and a firm limit on Government’s authority to invade an American’s person[], houses, papers, and effects.

The magistrate judge’s ruling can be read here.