Self-Policing In Response To Pervasive Surveillance

On Thursday night, in the course of conversation with some of my Brooklyn College colleagues, I confessed to having internalized a peculiar sort of ‘chilling effect’ induced by a heightened sensitivity to our modern surveillance state. To wit, I said something along the lines of “I would love to travel to Iran and Pakistan, but I’m a little apprehensive about the increased scrutiny that would result.” When pressed to clarify by my companions, I made some rambling remarks that roughly amounted to the following. Travel to Iran and Pakistan–Islamic nations highly implicated in various foreign policy imbroglios with the US and often accused of supporting terrorism–is highly monitored by national law enforcement and intelligence agencies (the FBI, CIA, NSA); I expected to encounter some uncomfortable moments on my arrival back in the US thanks to questioning by customs and immigration officers (with a first name like mine–which is not Arabic in origin but is in point of fact, a very common and popular name in the Middle East–I would expect nothing less). Moreover, given the data point that my wife is Muslim, I would expect such attention to be heightened (data mining algorithms would establish a ‘networked’ connection between us and given my wife’s own problems when flying, I would expect such a connection to possibly be more ‘suspicious’) ; thereafter, I could expect increased scrutiny every time I traveled (and perhaps in other walks of life, given the extent of data sharing between various governmental agencies).

It is quite possible that all of the above sounds extremely paranoid and misinformed, and my worries a little silly, but I do not think there are no glimmers of truth in there. The technical details are not too wildly off the mark; the increased scrutiny after travel is a common occurrence for many travelers deemed ‘suspicious’ for unknown reasons; and so on. The net result is a curious sort of self-policing on my part: as I look to make travel plans for the future I will, with varying degrees of self-awareness about my motivations, prefer other destinations and locales. I will have allowed myself to be subject to an invisible set of constraints not actually experienced (except indirectly, in part, as in my wife’s experiences when flying.)

This sort of ‘indirect control’ might be pervasive surveillance’s most pernicious effect.

Note: My desire to travel to Iran and Pakistan is grounded in some fairly straightforward desires: Iran is a fascinating and complex country, host to an age-old civilization, with a rich culture and a thriving intellectual and academic scene; Pakistan is of obvious interest to someone born in India, but even more so to someone whose ethnic background is Punjabi, for part of the partitioned Punjab is now in Pakistan (as I noted in an earlier post about my ‘passing for Pakistani,’ “my father’s side of the family hails from a little village–now a middling town–called Dilawar Cheema, now in Pakistan, in Gujranwala District, Tehsil Wazirabad, in the former West Punjab.”)

Are There No Ethically Uncompromised Lunches In The Universe?

Once upon a time a farmer told his neighbors that they could use his land for ‘free’–as a kind of community recreational space. His neighbors were told they could set up little stalls. where they could play music, show off their handicrafts, display family photo albums, and of course, walk over to their friends’ spaces and chat with them. A large sign in small print that hung outside the entrance to the field informed the farmer’s neighbors how they should behave when they were on the premises. Most families stopped briefly to read the sign but intimidated by the number of the words on the sign, and the twisted prose, which appeared to have been composed by committee, they moved on, trusting their neighbor to do well by them.

The community meeting and recreational space soon bloomed; the number of stalls grew rapidly. The local residents got to know each other much better and many enjoyed the opportunity to inspect the personal details of their neighbors’ homes and lives. Indeed, a visit to the ‘meeting space’ became an integral part of most people’s routines; stop in for a bit, ‘check in,’ say hi to a few folk, show off your new baby, brag about your car, your vacation, and so on.

The local folk often wondered why the farmer had been so ‘generous.’ What was he getting in exchange for this ‘gift’? Cynics talked about the impossibility of free lunches, and sure enough, it was becoming clear there wasn’t one to be had in this ‘community space.’ For the benevolent farmer was indeed exacting a price of sorts.

The farmer had many business associates who wanted to sell the locals their goods–fertilizer for their fields, goods that could be gifted to their children on their birthdays, clothes to be worn at their weddings, and so on. To find out what the locals’ tastes were would have required conducting expensive, tedious market surveys; the farmer’s business associates would have had to go from door to door, asking people to fill out forms. But in this space, the farmers neighbors happily gave this information away without being asked. And the reason this information was ‘given away’ was that it was ‘being taken’ as well.

Hidden cameras and microphones recorded their comings and goings and sundry activities: who they met, what they ate at their friends’ stalls, and indeed, what they ate at home, because the locals proudly showed photos of their food at their stalls (you could build some walls around your stall but most people, finding the construction of these to be too onerous, just went in for a wall-less design), what clothes they wore, who their ‘best friends’ were, who they talked to for medical advice, who they asked for help when the going was tough, what kind of music they listened to (and played for their neighbors by way of demonstration.)

When news of the hidden cameras and microphones broke, some of the locals were irate. They didn’t like the idea of being ‘spied on’ and worried that the local potentate, always eager to exert his control over the land just a little more efficiently, would find this sort of information very useful. Yet others thought that the local robber barons, who controlled the potentate in any case, would grow more powerful as a result of knowing so much about them. And some complained that the hidden microphones sometimes reported their conversations and displays to the farmer, who cracked down on them if he didn’t like what they said or what they showed off.

But others hushed their concerns, using that ancient piece of wisdom, which the robber barons themselves had promulgated: How can you look a ‘free’ gift horse in the mouth? You got to use this space for ‘free,’ didn’t you? When the locals said that they hadn’t signed on for this surveillance, yet others told them to read the sign on the entrance carefully, and if they didn’t like it, to leave, and to take their stalls with them. So some did even as they said the sign on the entrance was vague and unspecific. Yet others, finding that the space had become an indispensable arena for communication for matters pertaining to the local village and shire, stayed on.

But many continued to ask themselves: Was it a fair ‘deal’? Indeed, was it a deal at all? Had the farmer really behaved like a neighbor in spying on his neighbors after he had invited them to use his land for ‘free’? Did the non-existence of free lunches in the universe entail that those lunches had to be ethically compromised too?

Beyonce And The Singularity

A couple of decades ago, I strolled through Washington Square Park on a warm summer night, idly observing the usual hustle and bustle of students, tourists, drunks, buskers,  hustlers, stand-up comedians, and sadly, folks selling oregano instead of good-to-honest weed. As I did so, I noticed a young man, holding up flyers and yelling, ‘Legalize Marijuana! Impeach George Bush! [Sr., not Jr., though either would have done just fine.].”  I walked over, and asked for a flyer. Was a new political party being floated with these worthy objectives as central platform  issues? Was there a political movement afoot, one worthy of my support? Was a meeting being called?

The flyers were for a punk rock band’s live performance the following night–at a club, a block or so away. Clickbait, you see, is as old as the hills.

Clickbait works. From the standard ‘You won’t believe what this twelve-year old did to get his divorced parents back together’ to ‘Ten signs your daughter is going to date a loser in high school’, to ‘Nine ways you are wasting money everyday’ – they all work. You are intrigued; you click; the hit-count goes up; little counters spin; perhaps some unpaid writer gets paid as a threshold is crossed; an advertiser forks out money to the site posting the link. Or something like that. It’s all about the hits; they keep the internet engine running; increasing their number justifies any means.

Many a writer finds out that the headlines for their posts changed to something deemed more likely to bring in readers. They often do not agree with these changes–especially when irate readers complain about their misleading nature. This becomes especially pernicious when trash talking about a piece of writing spreads–based not on its content, but on its headline, one not written by the author, but dreamed up by a website staffer instructed to do anything–anything!–to increase the day’s hit-count.

A notable personal instance of this phenomenon occurred with an essay I wrote for The Nation a little while ago. My original title for the essay was: was Programs, Not Just People, Can Violate Your Privacy. I argued that smart programs could violate privacy just like humans could, and that the standard defense used by their deployers–“Don’t worry, no humans are reading your email”–was deliberately and dangerously misleading. I then went to suggest granting a limited form of legal agency to these programs–so that their deployers could be understood as their legal principals and hence, attributed their knowledge and made liable for their actions. I acknowledged the grant of personhood as a legal move that would also solve this problem, but that was not the main thrust of my argument–the grant of legal agency to invoke agency law would be enough.

My essay went online as Programs Are People, Too. It was a catchy title, but it was clickbait. And it created predictable misunderstanding: many readers–and non-readers–simply assumed I was arguing for greater ‘legal rights’ for programs, and immediately put me down as some kind of technophilic anti-humanist. Ironically, someone arguing for the protection of user rights online was pegged as arguing against them. The title was enough to convince them of it. I had thought my original title was more accurate and certainly seemed catchy enough to me. Not so apparently for the folks who ran The Nation‘s site. C’est la vie.

As for Beyonce, I have no idea what she thinks about the singularity.

Not So Fast With The Private Surveillance

A revealing–no pun intended–reaction to news of Steven Salaita’s troubles at the University of Illinois was that he was only paying the price for having his social media speech monitored (or surveilled) by his employer. As the argument goes, all employers monitor social media; we should all accept the consequences–in our places and zones of employment–of our public speech being monitored by our employers in non-workspace settings; Salaita’s employer did just that; he should deal with the consequences.

In an earlier post, I noted some of the adverse implications of such a situation for academics. But it is problematic for all workers, precisely because of the not-so-benign assumptions smuggled into its premises. First, it  uncritically accepts employer surveillance, not just of work spaces but of speech zones elsewhere as well–the restriction to social media networks is a red herring. This premise suggests we have no expectations of privacy–0r vastly lowered ones–in public spaces; but we clearly do, as our reactions to rude eavesdroppers at our restaurant table or street-corner conversations would suggest. Rather than meekly rolling back the boundaries of acceptable private surveillance to include more speech zones, this debate offers us an opportunity to inspect and examine where and how–and to what end–we consent to having our communications monitored by our employers.

Second, what does it mean to allow the content of our non-work space speech used against us in work space decisions such as hiring and firing? It means introducing an element of critical control and scrutiny into a domain where we expect to speak freely, to permit a regulation of speech by an entity as powerful, if not more, than governmental ones. No legal strictures would be required for chilling effects to be produced; the mere fear of the denial of livelihood would be enough. (Unsurprisingly, political activism of all stripes becomes easier when means of livelihood are not at stake; not for nothing is the tenured radical’s freedom so often lampooned by his critics.) The paucity of First Amendment restrictions on private employers is well-known; permitting their expansion, just because the technical means enable it, is to concede defeat all too quickly. Moreover, to permit it in a zone where the technical means permit it is to open the door to more extensive surveillance provided the technical means can be made available. This is to lose the argument at precisely the wrong point. After all, why not just micro-chip all from birth so as to permit future employers make the most informed decisions regarding suitability?

This reaction–the surveillance is in place, it is inevitable–is also depressingly indicative of the acceptance of an asymmetric surveillance; there is no talk of increasing employer–or chief executive–transparency to accompany this rollback of privacy safeguards. And lastly, as always there is the most appalling suggestion of all, more indicative of a civilizational  decline than anything else: when it comes to doing business, to making money, all concerned enter a morality-free zone of sorts; no imperative larger or more grand than an increase in profits need animate anyone’s actions.

Political Schooling Via The Usenet Newsgroup

As my post yesterday should have indicated, we are educated by a variety of modalities. A powerfully formative one for me was my exposure to Usenet newsgroups.

I discovered newsgroups in 1988, shortly after I began work as a research assistant with the Computerized Conferencing and Communications Center at the New Jersey Institute of Technology. I ‘worked’ long hours in our laboratory; email and newsgroups occupied much of that time (in between writing code, debugging code, and stepping out for coffee and cigarette breaks). I had arrived in the US from India in 1987,  a bachelor’s degree in hand; I considered myself well-read, but this inflated estimation of my edification was soon to be revised.

In the late eighties and the early nineties, Usenet newsgroups were largely populated by those with some form of university affiliation: faculty, students, staff, post-doctoral fellows. (Commercial affiliations were not unknown, but these were outnumbered by academic ones; the .edu address was most commonly visible.)  That demographic, unsurprisingly, voluble and prolific in its writing. (It is to the credit of the hacker community that so many of its members wrote often, and well, on newsgroups.)

The following hierarchy of newsgroups captures their eclectic and comprehensive nature:

  • comp.* — Discussion of computer-related topics
  • news.* — Discussion of Usenet itself
  • sci.* — Discussion of scientific subjects
  • rec.* — Discussion of recreational activities (e.g. games and hobbies)
  • soc.* — Socialising and discussion of social issues.
  • talk. * — Discussion of contentious issues such as religion and politics.
  • misc.* — Miscellaneous discussion—anything which does not fit in the other hierarchies.

I read a few of the .sci, .soc, .talk, and .rec groups on a daily basis. These were the time-sucks of their day; you could spend hours and hours, reading, responding, and engaging in flame wars. They were how you filled lunch and coffee breaks; they could make you stay up late at night, and log in frequently to see if new articles had shown up, to see if anyone had responded to your post.

It was here, in Usenet newsgroups, that I read many, many well-written, articulate, clearly argued and defended, points of view that I had never read before: free speech absolutism, the legalization of drugs, Palestinian self-determination, women’s reproductive rights, privacy rights, gay and lesbian rights, free software versus proprietary software, feminism, interpretations of the American constitution.  And many more. (I also spent a great deal of time reading and discussing cricket in the cricket newsgroup and the Grateful Dead in rec.music.gdead; ) When world-shaking events like the fall of Berlin Wall or Tiananmen  Square occurred on the world stage, they provoked corresponding discussions in the relevant groups. I read furious debates; refutations and counter-refutations; angry tirades; racist and xenophobic rants; calm, reasoned, erudite quasi-dissertations.

I had often entertained conventional views on or all some of these topics before I encountered newsgroups; very few of them survived their encounter with newsgroup discussions.  I read a great deal of revisionist history; I was offered many perspectives on world historical events that I had glibly thought I had understood  well. I had been complacent; I was no longer so. The sense of instability in my beliefs was alarming, but it was also exhilarating. I learned that seemingly air-tight arguments and refutations often contained fatal fallacies and weaknesses that could be exposed by close reading and careful attention to their logical and rhetorical form.

Some discussions were tedious, and many were repetitive, and later in the mid-nineties as the Internet bloomed and blossomed, I found the newsgroups less useful. I stopped reading them soon thereafter. But I never forgot those early readings–which produced in me a kind of ‘shock of the new.’

Many, many thanks are due to all those unnamed teachers of mine.

Programs as Agents, Persons, or just Programs?

Last week, The Nation published my essay “Programs are People, Too“. In it, I argued for treating smart programs as the legal agents of those that deploy them, a legal change I suggest would be more protective of our privacy rights.

Among some of the responses I received was one from a friend, JW, who wrote:

[You write: But automation somehow deludes some people—besides Internet users, many state and federal judges—into imagining our privacy has not been violated. We are vaguely aware something is wrong, but are not quite sure what.]
 
I think we are aware that something is wrong and that it is less wrong.  We already have an area of the law where we deal with this, namely, dog sniffs.  We think dog sniffs are less injurious than people rifling through our luggage, indeed, the law refers to those sniffs are “sui generis.”  And I think they *are* less injurious, just like it doesn’t bother me that google searches my email with an algorithm.  This isn’t to say that it’s unreasonable for some people to be bothered by it, but I do think people are rightly aware that it is different and less intrusive than if some human were looking through their email.  
 
We don’t need to attribute personhood to dogs to feel violated by police bringing their sniffing up to our house for no reason, but at the same time we basically accept their presence in airports.  And what bothers us isn’t what’s in the dog’s mind, but in the master’s.  If a police dog smelled around my house, made an alert, but no police officer was there to interpret the alert, I’m not sure it would bother me.  
 
Similarly, even attributing intentional states to algorithms as sophisticated as a dog, I don’t think their knowledge would bother me until it was given to some human (what happens when they are as sophisticated as humans is another question).  
 
I’m not sure good old fashioned Fourth Amendment balancing can’t be instructive here.  Do we have a reasonable expectation of privacy in x? What are the governmental interests at stake and how large of an intrusion is being made into the reasonable expectation of privacy?  
 

JW makes two interesting points. First, is scanning or reading by programs of our personal data really injurious to privacy in the way a human’s reading is? Second, is the legal change I’m suggesting even necessary?

Second point first. Treating smart programs as legal persons is not necessary to bring about the changes I’m suggesting in my essay. Plain old legal agency without legal personhood will do just fine. Most legal jurisdictions require legal agents to be persons too, but this has not always been the case. Consider the following passage, which did not make it to the final version of the online essay:

If such a change—to full-blown legal personhood and legal agency—is felt to be too much, too soon, then we could also grant programs a limited form of legal agency without legal personhood. There is a precedent for this too: slaves in Roman times, despite not being persons in the eyes of the law, were allowed to enter into contracts for their masters, and were thus treated as their legal intermediaries. I mention this precedent because the legal system might prefer that the change in legal status of artificial agents be an incremental one; before they become legal persons and thus full legal subjects, they could ‘enjoy’ this form of limited legal subjecthood. As a society we might find this status uncomfortable enough to want to change their status to legal persons if we think its doctrinal and political advantages—like those alluded to here—are significant enough.

Now to JW’s first point. Is a program’s access to my personal data less injurious than a human’s? I don’t think so. Programs can do things with data: they can act on it. The opening example in my essay demonstrates this quite well:

Imagine the following situation: Your credit card provider uses a risk assessment program that monitors your financial activity. Using the information it gathers, it notices your purchases are following a “high-risk pattern”; it does so on the basis of a secret, proprietary algorithm. The assessment program, acting on its own, cuts off the use of your credit card. It is courteous enough to email you a warning. Thereafter, you find that actions that were possible yesterday—like making electronic purchases—no longer are. No humans at the credit card company were involved in this decision; its representative program acted autonomously on the basis of pre-set risk thresholds.

Notice in this example that for my life to be impinged on by the agency/actions of others, it was not necessary that a single human being be involved. We so often interact with the world through programs that they command considerable agency in our lives. Our personal data is valuable to us because control of it may make a difference to our lives; if programs can use the data to do so then our privacy laws should regulate them too–explicitly.

Let us return to JW’s sniffer dog example and update it. The dog is a robotic one; it uses sophisticated scanning technology to detect traces of cocaine on a passenger’s bag. When it does so, the nametag/passport photo associated with the bag are automatically transmitted to a facial recognition system, which establishes a match, and immediately sets off a series of alarms: perhaps my bank accounts are closed, perhaps my sophisticated car is immobilized, and so on. No humans need be involved in this decision; I may find my actions curtailed without any human having taken a single action. We don’t need “a police offer to interpret the alert.” (But I’ve changed his dog to a robotic dog, haven’t I? Yes, because the programs I am considering are, in some dimensions, considerably smarter than a sniffer dog. They are much, much, dumber in others.)

In speaking of the sniffer dog, JW says “I don’t think their knowledge would bother me until it was given to some human.” But as our examples show, a program could make the knowledge available to other programs, which could take actions too.

Indeed, programs could embarrass us too: imagine a society in which sex offenders are automatically flagged in public by publishing their photos on giant television screens in Times Square. Scanning programs intercept an email of mine, in which I have sent photos–of my toddler daughter bathing with her pre-school friend–to my wife. They decide on the basis of this data that I am a sex offender and flag me as such. Perhaps I’m only ‘really’ embarrassed when humans ‘view’ my photo but the safeguards for accessing data and its use need to be placed ‘upstream.’

Humans aren’t the only ones taking actions in this world of ours; programs are agents too. It is their agency that makes their access to our data interesting and possibly problematic. The very notion of an autonomous program would be considerably less useful if they couldn’t act on their own, interact with each other, and bring about changes.

Lastly, JW also raises the question of whether we have a reasonable expectation of privacy in our email–stored on our ISP’s providers’ storage. Thanks to the terrible third-party doctrine, the Supreme Court has decided we do not. But this notion is ripe for over-ruling in these days of cloud computing. Our legal changes–on legal and normative grounds–should not be held up by bad law. But even if this were to stand, it would not affect my arguments in the essay, which conclude that data in transit, which is subject to the Wiretap Act, is still something in which we may find a reasonable expectation of privacy.

Random Searches on the New York Subway: A User’s Story

Today’s post will simply make note of an interesting (and alarming) email I’ve received from a reader. Please do share this widely.

Some time ago I was researching the random bag check policy for the NYC subway system and stumbled across your blog posting [on random searches on the New York subway].

Until today I had never been singled out for a random bag check nor had I ever been arrested.  When I entered the subway on 58th street/Columbus Circle today at around 1pm a police officer approached me and asked to search my backpack.  I thought about it for a moment and then declined.  He told me that since I declined I would not be allowed to enter the subway.  I told him that that was fine with me and that I would simply exit and take a taxi.  I exited and began to make my way down eight avenue on foot to flag a taxi.  Along the way, instead of researching the matter on my phone more extensively as I should have done, I pondered the logic and fairness of the situation.

Even though I had nothing to hide, for some reason I did not feel like having my privacy invaded.  I also questioned the efficacy of the search strategy.  I wondered what exactly the officer meant when he told me I could not enter the subway.  Did he mean I could not enter at the exact spot where he was conducting the search?  Did he mean I could not enter that particular line at any other entrance?  Did he mean that since I had declined the search I could never ride the subway ever again on any other day and on any other line?  The vagueness of his statement puzzled me.  Surely as a metro card carrying resident of NYC I would not be required to suspend all access to this vital means of public transportation simply because I had declined this one bag check.  Following this train of thought I figured that if I entered at another station where no bag searches were being conducted I might be able to lawfully enter since I would be doing so without declining a bag check.

Remembering your story and some other information I had recently read about the legality of declining bag searches in public spaces I felt compelled to put my theory to the test.  I proceeded to head back a block north to 54th street and entered the subway from a different station.  When I made it to the turnstiles there was no bag search being conducted.  I swiped my card and entered the station.  Roughly thirty seconds after I entered the station I was approached by a different officer.  It immediately became clear that the original officer had put out an A.P.B. on me.   I was arrested and taken to the 58th street/Columbus circle subway police station.  The arresting officer instructed me to stand and face the entry counter where a duty officer and his sergeant were sitting.  As I waited there patiently and silently the sergeant and duty officer began discussing a strange smell that they detected in the air.  They continued by directing sarcasm my way and eventually asked me if I had been smoking Marijuana.  I said no and told them that the reason I had declined the search was not because I had anything to hide but rather that I did not feel like having my privacy invaded.  They laughed and suggested that I was lying.  I was then put in a cell with Steve, a man of multiple prior arrests who had decided earlier this morning to enter the station without paying.  I spent the next four hours learning all about Steve’s life story while waiting to be processed.  Finally, after having my mug shot and finger prints taken I was released.  I had a brief courteous discussion with the booking officer about the charges and my court date.  He informed me that because the NYC subway station is owned by a private company and because I had entered the station after declining the search I was being charged with trespassing (in fact, the subway is a publicly owned system that is leased to the New York City Transit Authority).  Furthermore, because I had entered the station after having been told not to I was also being charged with disobeying a lawful order.  He further stated that both charges are violations, lesser than misdemeanors.

That said, I am baffled by the vagueness of this law.  Why did the arresting officer arrest me rather than simply insisting on searching my bag?  Even though I was located it stands to reason that the ease with which I could have entered elsewhere renders the system contradictory and innefectual.  Your personal experience is a testament to this very idea.  The fact that I was arrested does not support the theory that the system works.  It simply seems to illustrate that much time was wasted and that I was arrested without probable cause.  I was not arrested because I was suspected of being a terrorist.  Instead I was arrested because I declined to have my privacy invaded.

I’m not totally sure what compelled me to enter the subway so quickly and so near to where I had declined the search.  For sure curiosity played a major role.  Before I decided on that course of action I did consider the wisdom of waiting a little longer, walking a little further, or simply taking a taxi as I had originally intended.  On the one hand, I am glad that the police force exists and that they are actively trying to avert another disaster.  On the other hand, if I was a terrorist or a drug trafficker or anything else unsavory I certainly would not have been so stupid as to enter the train so close and so quickly after my initial brush with the law.  I am simply a law abiding resident of this great city who was trying to make my way home.

Just some food for thought as you ponder entering the subway system so soon after and so near to your next declined bag search.

From: Matthew Akers