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Privacy rights and government interest are out of balance

by Roch Smith Jr.

In his 1998 book The Transparent Society, David Brin looked at the advances in surveillance technologies and argued there were two possible ways to keep government from becoming a tyrannical big brother.

Brin predicted that attempting to fight the government’s use of technology to surveil us would likely be a losing battle. The better alternative was to keep it a two way street, where we, the public, would see as much about the watchers as they see of us.

That proposition has seen the citizens come up on the short end of the stick. Sure, cell phones capture police abuses and social media brings quick information to challenge misleading official accounts, but those pale in comparison to the kinds and amounts of information governments collect about us.

From “sting rays” that mimic cell phone towers in order to get nearby phones to identify themselves, to drone surveillance, to the masses of data collected on innocent civilians by the NSA as revealed by Edward Snowden, the methods and means by which governments and their agents spy on us is almost overwhelming.

It is easy to recognize that our Forth Amendment rights to privacy are in jeopardy. The expectation that we must come under suspicion before the government accesses information not just about us but belonging to us is in danger of becoming a quaint notion of a bygone era. It seems as if our Constitutional rights don’t fully apply in the in the digital realm.

It is hard to know if the assaults on our privacy are borne from an ignorance of technology or truly nefarious overreach. Richard Burr (R-NC), recently proposed a bill in the in the U.S. Senate that would allow the F.B.I. to see your web browsing history without a warrant.

Similarly, U.S. District Court Judge Henry Coke Morgan, Jr. ruled that the F.B.I. can hack your computer without a warrant. His rationale was this: There are so many hackers out there that you are bound to get hacked anyway, so you shouldn’t expect the F.B.I. not to do it too.

This is ignorance of the digital realm.

There is no way a judge would decide that because there are a lot of home breakins law enforcement can break into your house too. Yet, that’s what this judge’s decision amounts to. And the Burr bill is the same as allowing law enforcement to stand over your shoulder monitoring what newspapers you read, what letters you write and who you love. Terrible, tyrannical and un-American in every way.

The North Carolina legislature passed a bill this summer that makes all video recorded by police body-worn cameras not public records. Every Republican in the House and Senate voted for it. When Greensboro first approved the use of police body-worn cameras, it was for the purpose of “public accountability and transparency.” Without public access to the videos recorded by these cameras they are, in the words of Greensboro City Attorney Tom Carruthers, “just another tool of surveillance.” Yep.

For all these boneheaded actions, all is not lost — courts and elected representatives sometimes understand digital freedom.

The federal Office of Science and Technology Policy (OSTP) tried to deny a Freedom of Information Act request made by the Competitive Enterprise Institute for emails of official business transmitted by the head of the agency. The OSTP tried to argue that because these emails were managed and maintained on a “private” email account, they were not public records.

A federal appeals court rejected this argument as contrary to the “citizens’ right to be informed about what their government is up to.” It said government agents can no more make digital public records secret by hosting them with third parties than an employee could deprive requesters of hard copies by leaving them in a file cabinet at his daughter’s house and claiming they were under her control.

Florida Sate University tried to get away with something similar a few years ago. The Associated Press had requested that the university provide transcripts of testimony professors and administrators gave to the N.C.A.A. regarding academic fraud among student athletes. Florida State refused to provide the records because they were hosted on a password-protected server maintained by the N.C.A.A. An appeals court disagreed and said that the records were of public business and should, therefore, be available to the public, regardless of where they are stored.

If we are going to have any hope of keeping the scales from tipping completely out of balance, we have to be alert to infringements on our digital freedom. We have to be able to maintain access to the digital information about what our government is “up to” and to be free from unwarranted snooping in our digital lives.

An important way we can make this happen is by evaluating our elected leaders for digital competence. It is not enough to see someone on Facebook or Twitter. Are our representatives taking an interest in transparent government and digital privacy? Do they “get it.”

We should look for these competencies at every level too. Right down to our city councils. The City of Greensboro recently denied access to records with the excuse that because the information was hosted in the cloud, the city did not “manage” or “maintain” it and it was, therefore not public. Sound familiar?

Council members were copied on the denial, but only one, Mike Barber, had anything to say about it. We can’t have that.

The contract with the provider hosting the “off limits” records subsequently revealed that the city was actually contractually bound to — get this — “manage” and “maintain” its data. The very things the city said it did not do the contract bound it to do.

Anybody with a little tech savvy would have recognized, just like the appeals courts in the OSTP and Florida State cases, that digital records that are otherwise public can’t be made secret by putting them in the cloud and no amount of wordplay about who manages or maintains the records can change that.

If we are going to protect the publics’ interest in the digital age, we must take the responsibility of assuring the people we elect are not befuddled by technology. We must insist they do not see the digital realm as a space where government can escape the rules and where our rights are suspended. !

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