On the "Expectation of Privacy"

In assessing the "search and seizure" of personal data by law enforcement, modern courts have applied the test of "reasonable expectation of privacy." This test implies that if the citizen has used his data in such a way that exposes it to others, for example, used it in a business transaction, then law enforcement may use it against them without restriction.  

The Framers never conceived of this test and might well be surprised by it.  Rather, the tests that they wrote into the Bill of Rights were "reasonable" and "probable cause."  If a search or seizure is "unreasonable," then law enforcement must have a warrant from a court.  The test for the issuance of a warrant is probable cause to believe that a crime has been, not will be, committed.  

These are constitutional tests and they are independent of how the citizen uses his personal information or what his expectations are.  He should not need to do, think, or "expect" anything in order for them to apply.  The tests apply to the behavior of the state, not the expectation of the citizen.  They restrict what the state, the police, may do.  The Bill of Rights places the burden on the state to show that its behavior is lawful, not on the citizen to demonstrate a right or "expectation."  Note that while information obtained in violation of these tests may not be used to convict the citizen of a crime, it is routinely used to investigate, threaten, and coerce, the very things that the Framers feared from a powerful government.  

In some cases, the state, with the tacit consent of the courts, pretends to get a warrant for all searches.  It pretends that it can legitimately collect anything as long as it does not look at it.  However, the Bill of Rights does not limit the tests to searches but also to "seizures." The government operates a data center in Bluffdale Utah.  In a world in which one can put a terabyte of data in one's pocket for $100, the government requires 26 acres of floor space to accommodate the data that it collects world-wide on citizens' communications.  It claims that this seizure is not "unreasonable" and that it does not need a warrant unless it "searches" or looks at the data.  By what reasoning can the arbitrary collection of so much data be called "reasonable?"

I am not hopeful that this view will be argued before the courts or that, even it argued, it will change much.  Nonetheless, I had to argue it.  

"Women and Children First"

As we approach autonomous cars, some have posed the question "In accident avoidance should the car prefer its passenger or the pedestrian?"  It is posed as a difficult ethical dilemma.  I even heard an engineer suggest that not only does he not want to make the decision but that he would like Congress to make it as a matter of law.  

This is really just another instance of an ethical dilemma that humanity has faced forever.  It has many illustrations but one that has been used in teaching ethics is called the "life boat" problem.  If there is not enough room in the lifeboat for everyone, who gets in?  If there is not enough food and water, who gets preference?

The simple answer is "women and children first."  Human drivers will steer away from a woman with a baby carriage even if they do not have time to evaluate the alternative.  It is built into the culture, all but automatic, but the reason is that it is pro life.  Children are the future of the species.  Women can nurture and reproduce.  Men can sow but they cannot reap.  While the male role takes minutes, the female role takes months.  Life needs more females than males.

The reason that we do not apply this pro life rationale to the autonomous automobile is that we assume that the consideration is beyond its capability.  However, most of what one expects of an autonomous car today was beyond its capability a decade ago.  For the moment, most may not be able to consider all the factors we might like.  For example, they may not recognize age and gender, much less consider them.  Ten years from now, they certainly will.  

In this context it is useful to consider how such systems make a decision.  They identify a number of scenarios, depending upon the time available, assign an outcome and a confidence level to each, and choose statistically.  The kind of ties implied by the strawman dilemma will be vanishingly rare, even more so as the computers become faster and the number of things the can consider increases.  

Compare the autonomous car to the human driver.  In the two tenths of a second that it takes a young adult to recognize and react, the autonomous car will evaluate dozens of possibilities with as many considerations.  Like the human driver, the autonomous car may confront instances when there are simply no good options but the whole reason for using them is that they are less likely than the human driver to overlook the least damaging.  

Crypto Wars Redux

This morning, while researching another question, I found the following from Aaron Schumann to alt.security, quoting a post to the Risk Forum from me.  While written a quarter of a century ago, it might have been written this morning.

From: schuman@sgi.com (Aaron Schuman)
Newsgroups: alt.security
Subject: Congress to order crypto trapdoor?
Message-ID: <1991apr11 .231215.19779="" dragon.wpd.sgi.com="">
Date: 11 Apr 91 23:12:15 GMT 

The United States Senate is considering a bill that would require
manufacturers of cryptographic equipment to introduce a trap door,
and to make that trap door accessible to law enforcement officials.
If you feel, as I do, that the risk of abuse far outweighs the
potential benefits, please write to Senators Joseph Biden and Dennis
DeConcini, and to the Senators that represent your state, asking that
they propose a friendly amendment to their bill removing this
requirement.

I don't have exact addresses for Senators Biden and DeConcini, and
I hope someone will post them here, but the Washington DC post office
can deliver letters addressed to
Senator Joseph Biden Senator Dennis DeConcini
United States Senate and United States Senate
Washington, DC 20510 Washington, DC 20510

------------------------------
RISKS-LIST: RISKS-FORUM Digest  Wednesday 10 April 1991  Volume 11 : Issue 43
Date:  Wed, 10 Apr 91 17:23 EDT
From: WHMurray@DOCKMASTER.NCSC.MIL
Subject:  U.S. Senate 266, Section 2201 (cryptographics)
Senate 266 introduced by Mr. Biden (for himself and Mr. DeConcini)
contains the following section:
SEC. 2201. COOPERATION OF TELECOMMUNICATIONS PROVIDERS WITH LAW ENFORCEMENT
It is the sense of Congress that providers of electronic communications
services and manufacturers of electronic communications service equipment shall
ensure that communications systems permit the government to obtain the plain
text contents of voice, data, and other communications when appropriately
authorized by law.
------------------------------
The referenced language requires that manufacturers build trap-doors
into all cryptographic equipment and that providers of confidential
channels reserve to themselves, their agents, and assigns the ability to
read all traffic. 

Are there readers of this list that believe that it is possible for
manufacturers of crypto gear to include such a mechanism and also to reserve
its use to those "appropriately authorized by law" to employ it?
Are there readers of this list who believe that providers of electronic
communications services can reserve to themselves the ability to read all the
traffic and still keep the traffic "confidential" in any meaningful sense?
Is there anybody out there who would buy crypto gear or confidential services
from vendors who were subject to such a law? 

David Kahn asserts that the sovereign always attempts to reserve the use of
cryptography to himself.  Nonetheless, if this language were to be enacted into
law, it would represent a major departure.  An earlier Senate went to great
pains to assure itself that there were no trapdoors in the DES. Mr. Biden and
Mr. DeConcini want to mandate them.  The historical justification of such
reservation has been "national security;" just when that justification begins
to wane, Mr. Biden wants to use "law enforcement."  Both justifications rest
upon appeals to fear. 

In the United States the people, not the Congress, are sovereign; it should not
be illegal for the people to have access to communications that the government
cannot read.  We should be free from unreasonable search and seizure; we should
be free from self-incrimination.  The government already has powerful tools of
investigation at its disposal; it has demonstrated precious little restraint in
their use. 

Any assertion that all use of any such trap-doors would be only
"when appropriately authorized by law" is absurd on its face.  It is not
humanly possible to construct a mechanism that could meet that
requirement;  any such mechanism would be subject to abuse.
I suggest that you begin to stock up on crypto gear while you can still get it.
Watch the progress of this law carefully.  Begin to identify vendors across the
pond. 

William Hugh Murray, Executive Consultant, Information System Security 21
Locust Avenue, Suite 2D, New Canaan, Connecticut 06840       203 966 4769

We fought this battle once and thought that we won the war.