Richmond Journal of Law and Technology

The first exclusively online law review.

Month: February 2018

Alexa’s Constitutional Rights: Does the 1st Amendment Extend to Artificially Intelligent Machines?

By: Kaley Duncan,

“Alexa tell me a joke.”

“I wondered why the baseball was getting bigger…and then it hit me.”[1]

From dad jokes, to making a playlist on Spotify, and even dimming the lights in your home, Amazon’s Alexa can assist you with pretty much anything.[2]

Personal assistant devices like Alexa, Siri, and Google Home are the new consumer fad. While many competitors such as Google Home have hit the market, Alexa seems to be the preferred device.[3] As of May 2016, less than one year after its release, close to 2,000,000 Alexas had been sold.[4] According to Amazon, Alexa has 10,000 skills available and “the more customers use Alexa, the more she adapts to speech patterns, vocabulary, and personal preference.”[5] With Alexa’s pairing device, Echo Dot, you can now have a voice controlled personal assistant in every room of your house.[6]

Because these devices are such an integral part of consumers’ lives, privacy is a growing concern. Much like Apple’s feud with the F.B.I. over access to the San Bernadino shooter’s iPhone, many tech companies have been standing up to the government and refusing to hand over consumer data.[7] In May 2015, big companies including Facebook, Dropbox, Google, Apple, Twitter, and Yahoo signed a letter addressed to former President Obama urging him to back their privacy stances.[8] This concern was soon shared by Amazon’s legal team when Benton County prosecutor, Nathan Smith, demanded information from Alexa in regards to a murder investigation.[9] In a memorandum to the Circuit Court of Arkansas, Amazon stated that “[Alexa’s] interactions may constitute expressive content that implicates privacy concerns and First Amendment Protections.”[10] Amazon has since given up its legal battle as the murder suspect voluntarily gave up information regarding his Echo devices.[11] However, this suit brings up an interesting issue: Is Amazon’s novel approach just a legal hail marry used to ensure consumer privacy, or should artificially intelligent (“AI”) machines such as Alexa be entitled to First Amendment protections?

Toni Massaro and Helen Norton’s study suggests that they might be.[12] Some AI machines are so removed from human interference, that arguments for granting them first amendment rights may not be as absurd as they sound.[13]

“Modern computers can gather create, synthesize, and transmit vast seas of information as they become more ‘human-like’…Such computer speakers are increasingly self-directed or ‘autonomous’…[S]peech they produce is theirs, not ours, with no human creator or director in sight.”[14]

According to Massaro and Norton, current free speech ideology does not limit freedom of speech protection to only humans.[15] This may be true of even the least advanced artificially intelligent machines. Free speech theories tend to focus more on the expression of the speech rather than the speaker.[16] Therefore enabling extension of the right to not only humans, but anything that can produce a relevant expression via speech.[17]

Not surprisingly, many are opposed to extending constitutional rights to machines.[18] Conjuring images of a machine world gone mad, reminiscent of the movie The Terminator, might lead some to be resistant. However, Massaro and Norton suggests a compromise; Rather than give AI machines primary rights, leave the primary rights to humans and give some sort of secondary rights to machines.[19] That way, if information distributed by machines is not beneficial to humans, it may be judicially restricted.[20]

As AI machines are quickly advancing, this debate cannot be pushed aside much longer. It may not be long until your Alexa is granted constitutional rights too.

 

[1] TJ Farhadi, 11 Dad Jokes that Prove Alexa is Funnier than Siri, Review Weekly Blog (Feb. 3, 2016) https://www.review-weekly.com/blog/technology/11-dad-jokes-from-amazon-echo/.

[2] Grant Clauser, What is Alexa? What is the Amazon Echo, and Should You Get One? NY TIMES: The Wirecutter (Feb. 10, 2017), http://thewirecutter.com/reviews/what-is-alexa-what-is-the-amazon-echo-and-should-you-get-one/; see also TJ Farhadi, 11 Dad Jokes that Prove Alexa is Funnier than Siri, Review Weekly Blog (Feb. 3, 2016) https://www.review-weekly.com/blog/technology/11-dad-jokes-from-amazon-echo/.

[3] Andrew Gebhart, Google Home vs. Amazon Echo: Alexa Takes Round 1, CNET (Feb. 2, 2017), https://www.cnet.com/news/google-home-vs-amazon-echo/.

[4] BI Intelligence, How Many Amazon Echo Smart Home Devices have been Installed?, Business Insider (Jun. 7, 2016, 8:00PM), http://www.businessinsider.com/how-many-amazon-echo-smart-home-devices-have-been-installed-2016-6.

[5] Amazon Developer, https://developer.amazon.com/alexa (last visited Mar. 12, 2017).

[6] Amazon Prime, https://www.amazon.com/Amazon-Echo-Dot-Portable-Bluetooth-WiFi-Speaker-with-Alexa/b?node=14047587011 (last visited Mar. 12, 2017).

[7] Arash Khamooshi, Breaking Down Apple’s iPhone Fight with the U.S. Government, NY Times (Mar. 16, 2016) https://www.nytimes.com/interactive/2016/03/03/technology/apple-iphone-fbi-fight-explained.html?_r=0.

[8] Hope King, Tech Companies Standing up to Government Data Requests, CNN Tech (June 18, 2015, 6:06PM), http://money.cnn.com/2015/06/18/technology/data-protection-government/.

[9] Eric Ortiz, Prosecutors Get Warrant for Amazon Echo Data in Arkansas Murder Case, NBC News (Dec. 28, 2016, 2:13PM), http://www.nbcnews.com/tech/internet/prosecutors-get-warrant-amazon-echo-data-arkansas-murder-case-n700776.

[10] Mem. ex rel Amazon’s Mot. to Quash Search Warrant at 1–2, Ark. v. Bates, No. CR-2016-370-2 (Benton Co. Cir. Ct. Ark. 2017), available at https://www.documentcloud.org/documents/3473747-Amazon-Memorandum-Seeking-to-Quash-Echo-Search.html#document/p1.

[11] Rich McCormick, Amazon Gives up Fight for Alexa’s First Amendment Rights after Defendant Hands Over Data, The Verge (Mar. 7, 2017, 1:20AM) http://www.theverge.com/2017/3/7/14839684/amazon-alexa-first-amendment-case

[12] Toni Massaro & Helen Norton, Siri-ously? Free Speech Rights and Artificial Intelligence 110 Nw. Law Rev. 1169, 1173 (2016) (explaining that artificially intelligent machines might be entitled rights to freedom of speech)

[13] Id. at 1169.

[14] Id. at 1172.

[15] Id. at 1177.

[16] Toni Massaro & Helen Norton, Siri-ously? Free Speech Rights and Artificial Intelligence 110 Nw. Law Rev. 1169, 1175–78 (2016) (explaining that artificially intelligent machines might be entitled rights to freedom of speech)

[17] Id.

[18] Id. at 1774.

[19] Id.

[20] Id.

Image Source: https://lawstreetmedia.com/blogs/technology-blog/alexa-first-amendment/.

Why Cell Phones Mean Nothing Is Private

By: Lilias Gordon,

You are walking out the door in a rush so you do a quick self pat-down search — phone, wallet, keys — good to go. Most of us take our phones everywhere. Phones keep our calendars, emails, photos, text messages, and just about everything else. We download applications that collect even more information. How much of that massive amount of information is private? Not much. First, there are multiple ways your phone can be tracked by both your service provider and the government. Second, there is a limited expectation of privacy over the content of a cell phone if a person is stopped by police officers. Third, we self-disclose massive amounts of information about ourselves over social media that can go to third parties or the government. So, when you pat down your pockets to make sure you don’t go anywhere without your phone, perhaps you are searching yourself so that nobody else has to.

Cell phones can be tracked by the government pulling information from your service provider. A person places or receives a call on their cell phone, which connects to the nearest cellular tower transmitting information through the strongest signal.[1] Service providers keep records about how long the call lasted, between whom, and most importantly the location of the call based on the tower that was being used.[2] This is how the government can get a hold of cell-site location information (CSLI) for both past calls and in real time.[3]

People generally do not have a reasonable expectation of privacy in the location data given from their cell phone GPS or by CSLI.[4] In fact, no search occurs when a person voluntarily uses their cell phone in public, that information goes to the service provider, then the government accesses that information, possibly to place a suspect at the scene of a crime.[5] This analysis is under the Katz test for reasonable expectation of privacy; Supreme Court has observed that there is never a physical intrusion because the GPS is just a part of the phone.[6]

This issue is being addressed by state legislatures — but much like T-Mobile, the coverage it is patchy.[7] Courts are divided on whether the Stored Communications Act makes it illegal for the government to track your location in real time without probable cause and a warrant.[8] Neither Congress nor the Supreme Court has settled the debate as to whether warrants should be required for the government to access location information through a person’s cell phone.[9] The majority of the South, minus Florida, has decided that no warrant is required to track a cell phone. Few states, California being one of them, require a warrant for all cell phone location information.[10] How the government can track a cell phone greatly depends on where a person is in the country.

Unfortunately, this is not the only way a person can be tracked using a cellphone. Cell site simulators (CSS) are a tool used by the FBI that act like a nearby cell phone tower, tricking a phone into sending all the data intended to be transmitted to the cell phone carrier.[11] This tool can be used by the government to find out a person’s cell phone number based on knowing only the person’s general location.[12] The opposite is also true; if an officer knows identifying information about a person’s phone, they can use a CSS to locate its exact location.[13] The government can use either a person’s general location or general identifying information about a phone to find out that phone’s exact location in real time using a CSS.

Additionally, the contents of a person’s phone may be subject to search. Consider, there is a reason most people have pass-codes protecting their phones. A typical smart phone can store anything from a detailed calendar, a person’s internet search history, pictures from a vacation, or every text message sent from that phone. The Supreme Court articulated in Riley that police may not search digital information on a cell phone seized from an individual who has been arrested legally unless they obtain a warrant. [14] But one of the major takeaways of this case was that the reasonable expectation of privacy does not extend to include all the data on an arrestee’s cell phone.[15]

The applications we install is at least one more way we use our phones to disclose a massive amount of information to private companies and potentially the government. For example, Snapchat has built a brand on pictures and videos that are self-deleting. Pitching Snapchat as secure is a thin vainer of privacy considering all the ways a picture sent over Snapchat can be recovered. First, a recipient can easily screenshot a picture, saving it to their phone.[16] Other companies have invented apps that automatically save Snapchat photos and videos to the recipient’s phone (without notifying the sender).[17] Sent Snapchats can also be dug out of a phone by forensics firms who work with law enforcement and lawyers.[18]

Snapchat’s Privacy Policy list all the information Snapchat collects from people who use their product and how this information is used.[19] Snapchat collects “whatever information you send through the service, such as Snaps and Chats to your friends,” “information about your location,” “images and other information from your device’s camera and photos,” “information that other users provide about you when they use [Snapchat] services.”[20] Snapchat’s Privacy Policy also answers the question of what they do with all the information they collect. For example, user’s information is shared with third-party targeting advertisers or in order to comply with any legal or governmental request.[21]

Cell phones are incredibly convenient and serve just about any purpose people can think of. It is no surprise we use them as much as we do. However, cell phones are also incredibly convenient for law enforcement.

 

[1] United States v. Jones, 908 F. Supp. 2d 203, 206 (D.D.C. 2012).

[2] Id. at 207.

[3] Id. at 210.

[4] United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012).

[5] Id. at 779.

[6] Id. at 778.

[7] Cell Phone Location Tracking Laws By State, ACLU https://www.aclu.org/issues/privacy-technology/location-tracking/cell-phone-location-tracking-laws-state (accessed 10:43AM, Feb. 6, 2019).

[8] 1-2 Criminal Constitutional Law § 2.03 (2017).

[9] Id.

[10] Id.

[11] Coleman Torrans, How Did They Know That? Cell Site Simulators and the Secret Invasion of Privacy, 92 Tul. L. Rev. 519, 521 (2017).

[12] Id.

[13] Id.

[14] Riley v. California, 134 S. Ct. 2473, 2493 (2014).

[15] Id.

[16] Danielle Young, Now You See It, Now You Don’t… Or Do You?: Snapchat’s Deceptive Promotion of Vanishing Messages Violates Federal Trade Commission Regulations, 30 J. Marshall J. Info. Tech. & Privacy L. 827 (2014).

[17] Drew Guarini, ‘Snap Save,’ New iPhoneApp, Lets You Save Snapchats–Without Letting The Sender Know, Huff. Post (Aug. 9, 2013), http://www.huffingtonpost.com/2013/08/09/snapchat-snap-save_n_3732477.html.

[18] DL Clade, Forensics Firm Discovers that Snapchat Photos Don’t Disappear After All, PETA PIXEL (May 10, 2013), http://petapixel.com/2013/05/10/forensics-firm-discovers-that-snapchat-photos-dont-disappear-after-all/.

[19] Privacy Policy, Snapchat, http://www.snapchat.com/privacy/ (last visited Feb. 6, 2018).

[20] Id.

[21] Id.

Image Source: http://blogs.motivators.com/2011/12/dont-forget-your-things-doormat.html.

Spotify & the Music Modernization Act

By: Ilya Mirov,

Lawsuit Filed Against Spotify

Spotify, the world’s largest streaming service, has recently been sued by Wixen Music Publishing for allegedly using several thousand songs without a license and without compensation to the publisher.[1] According to Wixen, over 20% of the 30 million songs hosted on Spotify are unlicensed, and the plaintiff is asking for damages of at least $1.6 billion as well as injunctive relief.[2]

Wixen was founded by Randall Wixen in 1978 and licenses the catalog of more than 2,000 artists, including such notable artists as Tom Petty, Jefferson Airplane, the Beach Boys, and Rage Against the Machine.[3] Wixen’s artist songs make up five percent of all the music streamed on Spotify. [4]

Wixen’s lawsuit is just the latest of several legal actions that Spotify has been involved with in the past year.[5] These lawsuits against Spotify have been seeking compensation for songwriters and the copyright holders, who have struggled financially as the music industry has shifted away from physical album sales towards a streaming business model.[6]

Wixen’s legal action against Spotify may have been spurred by a recent proposed settlement involving rights holders and Spotify in Ferrick v. Spotify SUA Inc, No: 1:16-cv-8412 (S.D.N.Y.).[7] On May 26th, Spotify reached a settlement in a class action lawsuit which was consolidated out of two lawsuits brought by Melissa Ferrick and David Lowery involving compositions that Spotify streamed without paying for a license.[8] The settlement calls for Spotify to pay $43.45 million in compensation to the rightsholders for past infringement.[9] A resolution of all copyright disputes would allow Spotify to move forward trouble-free in its initial public offering expected later this year.[10] However, Wixen opted out of the proposed settlement in favor of pursuing its own legal action.[11]

The Music Modernization Act

All of this comes on the heels of what could be the most substantial update to copyright law since 1998.[12] If passed, the Music Modernization Act (MMA) promises to bring copyright laws into the 21st century.[13] The bill has been introduced to the House, and a mirrored bill was introduced in the Senate on January 24, 2018, with co-sponsors from both parties.[14]

The bill addresses key difficulties in music licensing that currently lead to digital music companies, like Spotify, regularly failing to pay songwriters and copyright owners for distribution of their songs. [15] Companies like Spotify often file bulk Notice of Intentions (NOIs) with the Copyright Office that allow them to obtain a license for music for which ownership information cannot be found. [16] Since this process was first instantiated in 2016, there have been an estimated 45 million NOIs filed with the Copyright Office.[17] This NOI process has taken millions in income away from songwriters who must rely on streaming services to link artists to their songs and issue fair payment.[18] The MMA will update the NOI process so that music creators can more often get payment for their work, thereby also reducing liability for digital companies who play the music.[19]

Second, the bill would establish a Mechanical Licensing Collective (MLC), an agency that would have streaming services compensate songwriters for the mechanical royalties earned through the streaming of licensed music content.[20] In exchange, the collective would allow digital providers, such as Spotify, to have blanket usage licenses for songs.[21] The MLC’s function would be to provide streaming services with efficient access to the information they need in order to know which songwriters to pay for songs.[22]

Third, the legislation would give both publishers and songwriters representation on the board of the MLC to ensure that its operations remain transparent and fair to both the streaming services and the creators.[23] The MMA would also provide songwriters with a chance to obtain fair-market mechanical royalty rates in the Copyright Royalty Board (CRB) proceedings that set royalty rates every five years.[24] Currently, CRB judges determine royalty rates based on an outdated standard, which will be replaced by the “willing buyer/willing seller” standard. This new standard will set rates based on open market negotiation between buyers and sellers.[25]

Fourth, the bill proposes an overhaul for the rate court system. Currently the American Society of Composers, Authors, and Publishers (ASCAP) and the Broadcast Music Inc. (BMI)– the two largest performance rights organizations in the country– are assigned a single judge who handles all rate court cases. The MMA would randomly assign a district judge in New York’s Southern District to each case going forward, and would allow those judges to consider relevant market-based evidence in determining the performance rate given to songwriters.[26]

Perhaps the most critical of the four changes promised by the MMA would be the creation of the Mechanical Licensing Collective, the new agency which would be responsible for creating a public database containing song ownership information, helping songwriters identify which songs haven’t been attributed to them and streaming services avoid lawsuits for not properly attributing rights to the holders of songs on their services.[27]

 

[1] Amanda G. Ciccatelli, Spotify Sued by Music Publishing Company for Unauthorized Use of Thousands of Songs, IPWatchdog (January 31, 2018), http://www.ipwatchdog.com/2018/01/31/spotify-sued-music-publishing-wixen/id=92993/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] See Ciccatelli, supra note 1.

[7] Id.

[8] Robert Levine, What Will Spotify’s $43 Million Class Action Settlement Mean For Songwriters and Publishers?, Billboard (May, 30, 2017), https://www.billboard.com/articles/business/7809818/spotify-43-million-class-action-settlement-songwriters-publishers-analysis.

[9] Id.

[10] Id.

[11] Amanda G. Ciccatelli, Spotify Sued by Music Publishing Company for Unauthorized Use of Thousands of Songs, IPWatchdog (January 31, 2018), http://www.ipwatchdog.com/2018/01/31/spotify-sued-music-publishing-wixen/id=92993/.

[12] Rep. Doug Collins (R-GA.), The Music Modernization Act Will Provide a Needed Update to Copyright Laws, The Hill (January 10, 2018), http://thehill.com/blogs/congress-blog/technology/368385-the-music-modernization-act-will-provide-a-needed-update-to.

[13] Id.

[14] Ed Christman, Senate Moves Forward on Music Modernization Act, Billboard (January 24, 2018), https://www.billboard.com/articles/business/8096006/senate-bill-music-modernization-act-licensing-reactions.

[15] Rep. Doug Collins (R-GA.), The Music Modernization Act Will Provide a Needed Update to Copyright Laws, The Hill (January 10, 2018), http://thehill.com/blogs/congress-blog/technology/368385-the-music-modernization-act-will-provide-a-needed-update-to.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] See Collins, supra note 15.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Ed Christman, Senate Moves Forward on Music Modernization Act, Billboard (January 24, 2018), https://www.billboard.com/articles/business/8096006/senate-bill-music-modernization-act-licensing-reactions.

[26] Id.

[27] Micah Singleton, Congress May Actually Fix Music Royalties, The Verge (January 26, 2018), https://www.theverge.com/2018/1/26/16931966/congress-music-modernization-act-licensing-royalties.

Image Source: https://techcrunch.com/2018/01/02/spotify-faces-1-6-billion-lawsuit-from-music-publisher-wixen/.

Technology and Criminal Law

By: Brooke Throckmorton,

It is hard to think of a time when technology was not an integral, driving force in the world. Technology has permeated many crevices of the average American’s daily life. Technology can change how crimes happen, types of evidence available after a crime is committed, how the police investigate a crime, and much more. This article touches on new and potential technologies and how those technologies can affect the criminal justice system, for good, bad, or complicated reasons. It should be noted that each new technology will have both good and bad aspects. “Good” simply means I believe the technology has the ability to be helpful. “Bad” means the technology has a stronger probability (in my opinion) of being manipulated and abused.

I will start with the “good.” There is a new technological system that can detect gun shots and pinpoint their exact location.[1] The gunfire pinpointing system, “ShotSpotter”, uses sensors to detect gunfire in a certain location and “triangulate the location of the incident.”[2] The location can be pinned down to the exact latitude and longitude of where the gun was fired.[3] It is then communicated to police.[4] Since not all criminal activity is reported, these gunfire sensors can insure police arrive on the scene of a crime before someone even dials 911.[5] More potentially helpful technology includes a national registry that can recognize mug shots (by facial recognition technology) in a matter of seconds[6], and computer-generated risk scores that can be used to decide when to detain arrestees.[7]

Next, the “bad” or potentially dangerous technologies are out there as well. First, there is talk of possible home incarceration technology as opposed to traditional imprisonment in prisons and jails.[8] While home incarceration would involve high technology surveillance equipment like cameras, microphones, and sensors[9], there is clear potential for abuse of the system. This technology raises many questions such as: How much can technology limit a person’s freedom? Would home incarceration be used for low level offenders (speeding tickets, failure to pay child support, etc.) or all offenses? Two main goals of the criminal justice system are to separate the guilty from the innocent[10] and to deter criminal behaviors with punishment. With that in mind, is being forced to watch Netflix on your couch for ten months truly a punishment? Will home incarceration have the same deterrence effect as prison incarceration?[11] I believe it depends on how the technology is implemented.  Another potential issue with technology when it comes to the criminal justice system is probably sitting next to you right now, or maybe you are using it to read this article: your iPhone. Apple released the latest version of the iPhone (iPhone X) in November 2017.[12] The iPhone X uses facial recognition to unlock your phone as opposed to a fingerprint or passcode. The iPhone X facial access raises serious Fifth Amendment issues when it comes to police forcing you to open your phone to obtain incriminating evidence.[13] Basically the Fifth Amendment protects you from being forced (by the police) to unlock your iPhone by using a passcode or pin ID because this is information you know; however, the Fifth Amendment does not  (conceivably) protect against being forced to use your face or thumbprint to open your phone because your face and thumbprint are things you are, not things you know.[14] There will need to be litigation (yet to come) to determine the courts’ stance on these issues.

Third, we have the complicated. While there are many complicated technologies, self-driving cars have to be close to the top of the list. Many liability questions pop up when there is a self-driving car involved such as: Who is liable when/if the car crashes? How does the car know to pull over when a police officer requests you to? The good news is self-driving cars are not fully functional on their own (yet).[15] This means self-driving cars still require driver input.[16] Some states are starting to implement laws to regulate self-driving cars. For example, North Carolina has a law mandating that no one under age twelve can ride in a self-driving car without adult supervision.[17] Further, owning a self-driving car does not require a driver’s license.[18] In addition, if the car receives a speeding ticket while in “auto-pilot” mode, the “driver” is responsible for paying the ticket.[19] These self-driving cars are not perfect. This is demonstrated by the fact that there have been many accidents, and a few fatalities, to date.[20] If a self-driving car does not remind you of Black Mirror[21] already, this next bit of information should do the trick. Ford recently filed a patent for an autonomous police car that could potentially decide on its own (via a learning algorithm) whether to issue a citation or a warning for a traffic infraction.[22] While patents do not always come to fruition, it is still a bit “unnerving” to think of an automated police car making decisions that a human being usually exercises judgment over.[23]

Some states have recognized technological advancements by making laws to deal with new technologies. For example, North Carolina recently implemented a law criminalizing flying drones within a certain proximity of a prison.[24] Merely flying a drone near a prison could land you with a misdemeanor; however, if you are trying to smuggle in contraband or weapons, you will be bumped up to felony status.[25]

New technology can be extremely helpful but at some point, we need to question the motives behind it, especially when it comes to the criminal justice system. Just because we CAN create something, does it mean we necessarily SHOULD create it?

 

[1] Quora, contributor, How Technology Is Impacting Our Criminal Justice System, Forbes (May 11, 2018), https://www.forbes.com/sites/quora/2017/05/11/how-technology-is-impacting-our-criminal-justice-system/#291183a8226d.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Doug Irving, How Will Technology Change Criminal Justice?, RAND (Jan. 7, 2016), https://www.rand.org/blog/rand-review/2016/01/how-will-technology-change-criminal-justice.html.

[7] Quora, supra note 1.

[8] Id.

[9] Id.

[10] Corinna Lain, S.D. Roberts & Sandra Moore Professor of Law, University of Richmond School of Law, Criminal Procedure: Investigation Lecture (Feb. 1, 2018).

[11] See Quora, supra note 1.  

[12] Matt Swider, The iPhone X Release Date This Friday, Thank to ‘Hard Work’, techradar (Nov. 2, 2017), http://www.techradar.com/news/the-iphone-x-release-date-was-meant-for-2018-explaining-apples-odd-triple-phone-launch.

[13] Kaveh Waddell, Can Cops Force You to Unlock Your Phone With Your Face?, The Atlantic (Sept. 13, 2017), https://www.theatlantic.com/technology/archive/2017/09/can-cops-force-you-to-unlock-your-phone-with-your-face/539694/.

[14] Id.

[15] Jordan Cook, Ford Files a Patent for an Autonomous Police Car, TechCrunch (Jan. 26, 2018), https://techcrunch.com/2018/01/26/ford-files-a-patent-for-an-autonomous-police-car/.

[16] Id.

[17] Gary D. Robinson, New North Carolina Laws Address Longtime Crimes, New Technology, Citizen Times (Dec. 1, 2017), http://www.citizen-times.com/story/news/2017/12/01/new-north-carolina-laws-address-longtime-crimes-new-tech/913069001/.

[18] Id.

[19] Id.

[20] See Bill Vlasic, Neal E. Boudette, Self-Driving Tesla Was Involved in Fatal Crash, U.S. Says, N.Y. Times, June 30, 2016, https://www.nytimes.com/2016/07/01/business/self-driving-tesla-fatal-crash-investigation.html.

[21] Black Mirror (Netflix 2017) (An original Netflix series that depicts what a technological future might look like and implications technology can have on human kind.).

[22] Cook, supra note 16.

[23] Id.

[24] Robinson, supra note 18.

[25] Id.

Image Source: https://www.dreamstime.com/stock-photo-justice-gavel-laptop-computer-keyboard-concept-online-internet-auction-legal-assistance-image46763895.

FISA and EO 12333: Technology Allows Collection of Information of U.S. Citizens via Loopholes in the Law

By: Nicole Allaband,

“Technological developments are arriving so rapidly and are changing the nature of our society so fundamentally that we are in danger of losing the capacity to shape our own destiny. This danger is particularly ominous when the new technology is designed for surveillance purposes[.]”[1] Senator John Tunney (D-CA) said this in a hearing about the precursor to the bill that became the Foreign Intelligence Surveillance Act (“FISA”) in 1978.[2] Technology has continued to develop at a fast rate and yet the law is still trailing behind, leaving U.S. citizens open to privacy violations.

FISA established the Foreign Intelligence Surveillance Court (“FISC”) to review applications for authorization of electronic surveillance.[3] FISA governs the collection of “foreign intelligence.”[4] The probable cause required for authorization to collect information under FISA is very different from the probable cause required in domestic investigations. In domestic investigations, a court may issue a search or arrest warrant if probable cause is shown that a crime has been, or is being, committed.[5] However, under FISA, collection of information can occur, without a warrant, on finding probable cause that the target is a foreign power or agent, regardless of whether that foreign power or agent is suspected of criminal activity.[6] Only if the target of the FISA warrant is a U.S. citizen must there be probable cause that the person is involved in criminal activity.[7]

FISA has been amended several times since 1978. The 1994 and 1998 amendments allowed covert physical entries and pen/trap orders.[8] The USA-PATRIOT Act, passed shortly after 9/11, expanded the reach of FISA to circumstances in which foreign intelligence gathering is only a “significant” purpose of an investigation.[9] However, the amendments have not kept pace with new technologies.[10]

In addition to FISA, foreign intelligence is collected under Executive Order (“EO”) 12333.[11] The order was issued in 1981 by President Reagan and it governs surveillance the National Security Agency (“NSA”) conducts overseas.[12] Although U.S. citizens cannot be targeted under EO 12333, the NSA can conduct bulk collection which leads to incidental collection of large quantities of U.S. citizens’ communications.[13] Under EO 12333, when the NSA collects information abroad, it can presume the information collected belongs to non-U.S. citizens.[14]

EO 12333 and FISA were written before the Internet became what it is today but neither has been updated to match current technology. The Internet was not designed to conform to national borders; rather the Internet was built on efficiency, reliability, and minimizing costs.[15] Network traffic between two points in the United States may be naturally routed to a server abroad before reaching the endpoint in the United States.[16] Traffic between two domestic points that is routed abroad can therefore be swept up under EO 12333.[17] Unless the information collected specifically identifies the starting and ending point as being within the United States, the NSA can presume the communication is by and about a foreign national.[18] Unfortunately technology makes it “virtually impossible, in real time,” to determine the location or nationality of the target.[19] Information thus collected can be “retained for further processing.”[20]

Congress recently reauthorized Section 702 FISA.[21] Section 702 specifically authorizes the government to target and collect information from foreigners located abroad.[22] Despite the focus on foreign intelligence collection, Section 702 incidentally collects a large amount of communications from U.S. citizens (without a warrant).[23] Changes in technology coupled with outdated legislation has put Americans’ privacy at risk.[24] FISA defined “electronic surveillance” in 1978, and that definition has remained largely unchanged despite massive changes in technology.[25] The 2017 Reauthorization Act clarifies some procedures for the FBI to obtain collected information and mandates reporting requirements about material breaches.[26] However, the reauthorization does not update the definition of electronic surveillance to keep pace with current technology and the loopholes the intelligence community is able to exploit to collect information on U.S. citizens.[27] The current reauthorization lasts until 2023 but Congress should seriously consider updating the definition of electronic surveillance so that where the information is collected is not determinative of the collection process and the legal protections offered.[28]

 

[1] Joint Hearings on Surveillance Technology Before the Sen. Comm. On the Judiciary, Subcomm. on Const. Commercce, Spec. Subcomm. on Science, Tech., and Commerce, 94th Cong. 1 (1975) (Statement of Sen. John Tunney).

[2] See id; see also Foreign Intelligence Surveillance Act (FISA), Electronic Privacy Information Center, https://epic.org/privacy/surveillance/fisa/#Overview (last visited Jan. 30, 2018).

[3] See id.

[4] See id.

[5] See id.

[6] See id; see also Jessica Schneider, What is Section 702 of FISA, anyway?, CNN (January 11, 2018), https://www.cnn.com/2018/01/11/politics/trump-fisa-section-702-surveillance-data/index.html.

[7] See id. (only U.S. citizens are protected by the Fourth Amendment); Schneider, What is Section 702 of FISA, anyway?.

[8] See Schneider, What is Section 702 of FISA, anyway?.

[9] See id.

[10] See Jeffrey S. Brand, Eavesdropping on Our Founding Fathers: How a Return to the Republic’s Core Democratic Values Can Help Us Resolve the Surveillance Crisis, 6 Harv. Nat’l Sec. J. 1 (2015).

[11] See Foreign Intelligence Surveillance (FISA Section 702, Executive Order 12333, and Section 215 of the Patriot Act): A Resource Page, Brennan Center for Justice (last updated September 28, 2017), https://www.brennancenter.org/analysis/foreign-intelligence-surveillance-fisa-section-702-executive-order-12333-and-section-215.

[12] See id.

[13] See id.

[14] See id; see also Axel Arnbak & Sharon Goldberg, Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on Americans by Collecting Network Traffic Abroad, 21 Mich. Telecomm. Tech. L. Rev. 317, 335 (2015).

[15] See Arnbak & Goldberg, at 343.

[16] See id.

[17] See id. at 335.

[18] See id. at 321.

[19] See Williams C. Banks, Data Collection and Advancements in Surveillance Techniques: Next Generation Foreign Intelligence Surveillance Law: Renewing 702, 51 U. Rich. L. Rev. 671, 672 (2017).

[20] See Arnbak & Goldberg, at 321.

[21] See Robyn Greene, Americans Wanted More Privacy Protections. Congress Gave Them Fewer, Slate (Jan. 26, 2018), https://slate.com/technology/2018/01/congress-reauthorization-of-section-702-of-the-fisa-is-an-expansion-not-a-reform.html.

[22] See id.

[23] See id.

[24] See id; see also Arnbak & Goldberg, at 319.

[25] See Arnbak & Goldberg, at 329.

[26] See S.139 FISA Amendments Reauthorization Act of 2017, Congress.gov, https://www.congress.gov/bill/115th-congress/senate-bill/139/text?q=%7B%22search%22%3A%5B%22s.+139%22%5D%7D&r=1 (accessed Jan. 20, 2018).

[27] See id.

[28] See Arnbak & Goldberg, at 359.

Image Source:https://www.activistpost.com/2017/09/trump-admin-congress-renew-fisa.html.

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