All (Electronic) Eyes Are Watching You

The law alumni association’s fall lecture, “You Are Here: Location Data, Tracking Technology, and Consumer Privacy Law,” moderated by Professor Katherine Strandburg, brought together lawyers from the ACLU, Federal Trade Commission, Verizon, and other corporations and think tanks in lively debate. “Ten years ago, the only companies that knew your real-time location were your cell carriers,” said Justin Brookman ’98, director of the Center for Democracy and Technology’s Project on Consumer Privacy. “Now Angry Birds, ESPN, and whoever else I download can have access to it.” He argued that the lack of location privacy can lead to real harm, whether through the applications that individuals can load onto one another’s mobile devices, or through changing the ways in which companies interact with consumers.

Molly Crawford, a senior attorney with the Division of Privacy and Identity Protection at the FTC, described the “Do Not Track” option for consumers. This option, recommended by the FTC, would need to be universally implemented and easy to use. “What we want to see is privacy that is baked in, part of the process, that is not an afterthought,” she said.

However, Randal Milch ’85, executive vice president and general counsel of Verizon, warned that legislation might not be quite so easy to implement. “Attempts to legislate in this area are very freighted with the inability to keep up with technology,” he said. He also argued that part of the difficulty with creating privacy legislation is that the generation creating privacy laws is not the generation most commonly using new technologies. “We try to lock these kids into a regime based on old fogies’ views of what’s private and what’s not private,” he said.

Other panelists included Valerie Caproni, former general counsel to the FBI and currently vice president and deputy general counsel of Northrop Grumman Corporation, and ACLU staff attorney Catherine Crump.

Caproni described herself as “the token jack-booted thug for the purpose of this discussion,” arguing that the use of GPS tracking by the police and the FBI is not a violation of Fourth Amendment rights. “When you’re out on the public street, you do not have a reasonable expectation of privacy, because you can be seen by the public eye,” she said. According to Caproni, GPS location tracking accomplishes the same goal that 24-hour surveillance by several FBI teams would accomplish, just with much more efficient use of manpower.

Crump emphasized the importance of taking into account the fast-changing nature of technology, whether in consumer privacy regulation or criminal justice legislation. “If you had said in 1984 that in 25 years every American would carry a tracking device, you would have been dismissed as crazy. Someone would have handed you a tinfoil hat, or you would have concluded that the Soviets had won the Cold War,” she said. “But that’s the reality that we live in today.”

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