Expectation of Privacy Is a Very Lax Standard

By Evan Schuman  |  Posted 2006-05-16

Expectation of Privacy Is a Very Lax Standard

With the latest allegations that the White House and the National Security Agency have been secretly collecting the phone call records of tens of millions of Americans, backers of the program have routinely cited a legal concept known as "expectation of privacy."

The phrase references a 1979 U.S. Supreme Court decision that narrowly concluded that people do not expect privacy about the numbers they dial because they give those numbers to various telephone companies.

In the 27 years since that decision was handed down, the Web has done quite a bit to make people assume that a great deal of their lives are up for public consumption.

In the e-commerce world, retailers and manufacturers routinely ask for consumers to give up a piece of their privacy—personal contact information—in exchange for something, such as discounts, recall alerts, warranty assistance, tech support and customized services (think Amazon, with its book recommendations).

What retailers and suppliers have discovered is that there is a distinct age divide when it comes to privacy.

There is a disconnect between what senior retail marketers expect consumers will give up privacy for and what younger consumers actually will do.

The younger consumers seem much more willing to surrender their data, not necessarily because they find the lure of the incentive so great, but because they assume that their private data is already out there, so why not?

Less the digital divide than the cynical connection, younger Americans have simply assumed that their privacy is nil.

This explains why members of Congress and veteran media commentators—who tend to be sharply beyond their puberty years—have been so aghast at the telephone records grab, while surveys of American consumers show reactions closer to yawns than outrage.

To read more about privacy groups reaction to the NSAs collection of phone records, click here.

A couple of months ago, I was involved in a research project wherein we interviewed lots of physicians.

One of the questions involved a service where the physicians would get instant e-mail and IM alerts when anything major happened impacting any of the drugs they routinely prescribed.

The same age split that exists for retail consumers happened for the doctors, but in the reverse.

Younger physicians resisted the program, as they didnt want to risk such information getting to pharmaceutical companies, who would bombard them with pitches. But the more experienced physicians had few objections, mostly because they assumed that the pharmaceuticals already had such data.

Next Page: Phone records.

Phone Records

In the current case, USA Today recently reported that BellSouth, AT&T and Verizon had turned over their phone records to the government—without court orders.

On May 16, BellSouth—which didnt object to the initial USA Today report—issued a statement that it had not provided "bulk customer calling records to the NSA."

A BellSouth spokesperson later clarified to the newspaper, adding that "We are not providing any information to the NSA, period."

For the moment, lets assume that BellSouth isnt playing coy and that they provided the data to the Defense Department or some other government agency.

BellSouth suggested that the documents werent turned over because the White House never asked for them.

Later on May 16, Verizon also issued a statement distancing itself from the deal. An Associated Press story reported: "The denials leave open the possibility that the NSA directed its requests to long-distance companies, which collect billing data on long-distance calls placed by local-service customers of BellSouth and Verizon."

This differs materially from Qwest, which maintains that it was asked and that it refused the governments request.

Beyond setting themselves up for a great TV campaign ("We protected your data from a warrantless search. Hey, its more than those other guys did, so cut us some slack here, OK?"), the Qwest move—if true—showed impressive guts.

Read more here from columnist Larry Seltzer about the expectation of privacy.

Telecom companies today are still very dependent on the government, and refusing any request that has even the faintest whiff of national security claims is not something they are going to take lightly. Like the classic line from the original "Godfather" film, "A refusal is not the act of a friend."

This telecom data-sharing isnt limited to land lines. One of the major cell phone carriers has improved its hardware to the point where they can do—and have done—real-time location tracking of customers at whim.

They can even defeat that time-honored gangster tactic of removing the SIM card to make the phone untraceable when the bandit calls the police to taunt them.

The company has decided to not reveal such capabilities because it routinely shares this data—without warrants—with law-enforcement agents.

The agents know the drill. Say the "terrorism connection" and "possibly in progress," and the information is immediately released.

The carrier has decided to not reveal the capability for two reasons. First, the bad guys would quickly decide to purchase any phone other than this brand, and secondly, the privacy backlash could be severe. But maybe not.

This news is shocking to everyone other than the most popular cell phone segment: young consumers.

The tracing capabilities can—and have—been used for good, such as locating lost customers stranded on a mountain.

The government says that domestic calls are not being monitored without a warrant, but that merely the phone numbers dialed are being handed over.

Somehow, thats of little comfort. The numbers are the most sensitive part, and besides, a secretive government is not likely to volunteer if it was listening to the calls themselves.

Lastly, its not like the secret anti-terrorism court involved—called FISA, for the 1978 Foreign Intelligence Surveillance Act that created it—is especially hesitant to approve wiretaps.

Count me among the cynical ones who assume that everything I do and say is being recorded and will be made public.

I covered courts for years and quickly learned to think before I took any controversial action ("How would I feel if I had to testify about this someday?").

It may be paranoid, but its kept me on a fairly boring and mostly legal life. See? Cynicism has its advantages.

Editors Note: This column was updated to include additional information about Verizon from an Associated Press story.

Evan Schuman is retail editor for Ziff Davis Internets Enterprise Edit group. He has tracked high-tech issues since 1987, has been opinionated long before that and doesnt plan to stop anytime soon. He can be reached at Evan_Schuman@ziffdavis.com.

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