I.          Internet & Society, Sept. 30: Privacy

II.       From encryption to privacy

A.      A layered network, TCP/IP, programs like Eudora don’t need to deal with underlying technology

B.     Last week, encryption.  Possible to encrypt data packets.

C.     This week, think more broadly about privacy in networks broadly.

III.     Parties in privacy issues

A.      Singleton v Lessig debate.  Singleton worried about government privacy intrusions, Lessig worried about privacy issues outside of government (private parties.

B.     Third party problem: someone not invited to communication who listens in

C.     Second party problem: person you communicate with who promises to keep secret, but doesn’t

IV.   Monitoring v searching

A.      Monitoring: on-going ability to tune into world and on-going communications

B.     Searching: ability to view records of previous communications, e.g., to “nexis” someone

V.      What is privacy?

A.      Ambiguous term

B.     Is there such thing as “too much privacy”?

C.     Cows, ducks, and other animals…

D.     Possible definitions of privacy:

1.      Power to keep secrets

2.      Ability to prevent others from collecting data about you.  Example, GUID number embedded in Microsoft Office

3.      Power to keep partial secrets (being able to reliably designate people to keep your secrets)

4.      Freedom from intrusion (comprise of your private information, even if not “kept”); information “frisk”

5.      Freedom to make certain decisions unfettered (Griswold v CT); the right to be let alone.  Example: right to make decisions in the bedroom

E.     Does privacy attach to person or place?

VI.   How do you protect privacy?

A.      Create privacy rights and penalties for violations (“tortify” privacy)

1.      Rights of consumers to have disclosure of someone’s use of information about them

·     Inalienability.  Can’t give up these rights.

B.     Create property interests in privacy rights

1.      Foster market in private information, charge for use of private information

C.     Code it.  Construct technology to force desired privacy policy (e.g., Intel’s ID numbers, Microsoft’s GUID, P3P)

1.      Watermark data, marks data and makes it possible to track it, see if someone gave it away.  Simple example: list your middle name differently each time you submit it.

VII.     What is privacy in

A.      the absence of physical boundaries?

B.     an environment of ubiquitous sensors and cheap sensors?

1.      Increase in computing power and rapid decrease in prices makes it readily available in inexpensive toys and other goods

2.      More recently, cheap networks make transmission of data very easy and affordable

3.      Current era has light computers and stronger networks (?)

4.      Cheap sensors: high-resolution cameras, live image transfer, biometric identifiers

·     Applications in traffic control

·     “Jenny-cam”: live camera in girl’s dorm room, charge for viewing

VIII.   Guests

A.      David Sobel:  Electronic Privacy Information Center

IX.   DS introduction:

A.      Think about future uses of information collected today

B.     Current hot debate:  is there need for regulation, or can parties self-regulate

C.     Worry: is there such thing as informed consent?

1.      Is publication of web-site privacy policy sufficient?

2.      Do people understand these policies?

3.      Right to change policy at any time could create problems.  User might give consent for use of information today but not know what info will be used for later

X.      Example: supermarket discount cards

A.      People say they don’t mind supermarket collecting data about consumer purchases

B.     But if supermarket provided that database to insurers (to examine healthiness of diets, for example), people get alarmed

C.     JZ: could insurance company ask consumers directly about their diets?  DS: yes, insurer could ask, and no, such a question probably does not offend privacy

D.     DS: big concern over future use of data after consented collection

E.     JZ:  what about prohibiting retroactive changes in privacy policy?

1.      DS: Enactment of legislation such as federal privacy act entitles notice of information collection and use, and right of individual to see/correct such information

F.      Primary concern today is private sector, not government

XI.   Substantive limits on ability of individuals to contract.  StarMarket example:

A.      JZ:  Aside from procedural boundaries, are there any substantive limits that we should impose on individuals to contract out of privacy?

B.     DS: If there really is bona fide informed consent, then OK

C.     JZ:  What if Star Market gave you privacy counselor?

D.     DS: Students not a representative sample, lower privacy concerns. 

E.     DS: Example: free PCs if you sign away all your privacy rights

F.      JZ:  should people be able to sign away their privacy rights?

G.    DS: Would you still go to mall if you were going to be monitored on your viewing?  People say no, but internet effectively permits collection of detailed personal profile not just of purchases, but of examination of different products.

XII.     Examples of other potentially malicious uses of information: book purchases

A.      Ken Starr’s subpoena of Monica Lewinsky’s book purchases in the bookstore.  On Amazon.com, would have been able to get much more information (on browsing records too, not just purchases).

B.     Counter-example: ability to look at book browsing and purchases of Unabomber would presumably be beneficial

C.     Balance between law enforcement and privacy.  DS: Most people would prefer more privacy, even at the expense of law enforcement.

XIII.   Another example: FBI ability to wiretap telephones

A.      Law-abiding public doesn’t mind currently

B.     But, environment could be different in future (a la Hoover era)

XIV.     Controversial examples of cost/benefit of privacy compromises

A.      MIKE: for average law-abiding citizen, benefits of reduced privacy outweigh costs and risks

B.     JZ hypo: government installs speed limit sensors in cars.  What do you think?

C.     MIKE: Likes to speed.  Speeding controls: Mikey doesn’t like it! 

D.     DS: How about university access to cable TV records, see if you were studying.

E.     MIKE: Ridiculous example.

F.      DS:  Not so crazy, university could contract to buy rights.

G.    Student2:  You are friggin hysterical!

H.     Student2:  Most people think they are “below the radar” in terms of what companies are interested in

I.  Jessica:  Our generation is desensitized, we are all video taped, we all look at porn, we aren’t so concerned.

J.       DS:  Hmmmm.

K.     Student3:  What about asymmetric information?  Example, slot machines release coins to maximize gambler’s time there.

L.      DS:  Valid concerns raised, such as manipulation of consumers based upon collection of personal information.

M.    Student4: Speeding example is an invasion of privacy, but there are benefits, would lead to safer highways.  Even better, device slows your car down, makes highways super safe.  Creates a public benefit.

N.     JZ: Striking a balance is tough, but such privacy compromises can be beneficial.  Example, in VA, cameras installed at intersections, public outrage at driving violations, people like the cameras.

O.    DS: But violation of private rights can go to far, even if they seem beneficial overall.  Ex: other rights.

XV.   Other hypos

A.      Car rental, promise to obey speed limits, insurance won’t pay if you violate.

B.     Other example: U-Haul truck physically will not permit you to speed.

XVI.     Guest: James Gavell

A.      President and Founder of Birch Tree Systems

B.     Background

1.      Software company, 1997, make software utilities

2.      Approached by parent interested in seeing what child does on computer, but Birch Tree felt that was Big Brother-esque

C.     Created product called “NetSee”

1.      Can watch and record what individual does on the computer

2.      Captures visual screen activity

3.      Example of benefit, with www.whitehouse.com, can actually see what content is, not just URL

4.      JZ: what constitutes “Big Brother”?

5.      DS: Monitoring is OK when concerned with company incurring legal liability for offensive material.  Purchase of software may protect against liability

XVII.   Product demo of NetSee

A.      Ability to watch multiple screens in real-time

B.     Also have ability to record and archive screen activity, easy to view later on.  Can keep as long as desired

C.     Can halt activity of particular user (shame on you, Mike.  You have way too much porn.)

D.     Password protected (?)

E.     Can watch for inappropriate images, games

F.      New product coming out that would allow administer to take control of user’s computer and communicate via dialog box

XVIII.        Questions on NetSee

A.      Yes, you should tell employees you are installing NetSee, put stickers on user’s monitor

B.     Matt: Do buyers actually use stickers and notify employees? 

1.      Yes, and reduces waste by 80%

C.     Does client computer require software? Yes.

D.     Remote access?  Yes.

E.     Are there anti-NetSee products?  Not yet.

F.      How does it work with large numbers of employees?  Use hierarchical system.

G.    How’s business?  Great.

H.     Ownership?  Private.

I.  Competitors?  Yes, numerous.

J.       JZ: Other product do same thing, but without user’s knowledge.  Many high-profile customers for this product.

K.     Users reluctant to admit to use of NetSee-type programs.

XIX.     Packet-sniffers and inherent ability to monitor networks

A.      Ethernet cards uniquely numbered, allows networks to identify unique users.

B.     Effectively enables ability to match packets of data to user’s Ethernet card

C.     “Promiscuous” Ethernet cards, listen to data packets intended for others.

XX.   Legal doctrine as it applies to NetSee, from Birch Tree System’s in-house counsel perspective

A.      BTS: So long as notice is given to employee, employer has right to monitor employee’s activity

B.     DS: notice might not even be required because computer is property of employer, and employee should not have expectation of privacy on employer’s computer.  Notice is still good policy though.

C.     JZ:  What about telecommuters working on own equipment?

D.     JG:  Not technologically feasible yet, but soon.

E.     DS:  In individual’s home, individual’s privacy right stronger

F.      JG:  Wouldn’t recommend NetSee on employee’s personal computer.

G.    Student: where does law draw line, e.g., can you monitor at night? 

1.      JG: If on employer’s network, can always monitor.

H.     DS:  When employer takes active role in monitoring employee, could employer incur liability to third parties?  Example:  Yahoo sues for message sent by employee that employer should have caught.

I.  Xena:  Could NetSee enforce notification of users?

1.      JZ:  Could build-in blinking eye or other software signaling.

J.       Rebecca: Shouldn’t there be a distinction between government’s ability to monitor vs. private employers?

1.      JZ:  Yes, and there is.  What about when employer is government?

2.      DS:  In government use of NetSee type programs, probably have to notify users.  Example: government phones with disclaimer stickers.

XXI.     How do we feel about employer’s ability to monitor employees?

A.      DS: If there is no notice, find it troubling.  Previously there was proposed legislation requiring employers to give notice of e-mail monitoring.  But still, employees are not well-educated as to distinctions between personal at work-related computer use.

XXII.   Case of Divinity School Dean, university-provided computer in university-provided home, pornography found by ITS.

A.      DS: Difficult because paper and pen communication from work OK, but same thing on-line is not OK.  Can’t blame employees for unintentional misuse of employer’s computer.  Technology is changing what behavior is acceptable.

B.     JG:  NetSee does not block or filter, just monitor.  Difference between use and abuse.

C.     DS:  Why not just look at productivity of employee?  Could be reading a book (not monitored) or surfing on web (monitored

1.      JG:  CEOs more concerned about computer usage

XXIII.        More questions

A.      JZ:  Blockbuster forbidden from disclosing rental information.  Also laws, protect private communication. 

B.     Maryland law, can’t tape record conversation without approval, but could remember or discuss content

C.     Would Summer Associates at law firms change behavior in light of NetSee?  Yes.

D.     JG:  Warning:  Internet Explorer keeps records of your activities, employer can monitor activities even without NetSee.  E-mail in general offers NO privacy.

E.     JZ:  Sociologist marveled at officers in Rodney King’s willingness to discuss their activities over tele-type device in patrol car.  Did research, found that people are much more willing to discuss things over tele-type than on the phone.  Put a blinking tape recorder on the tele-type screen, and then people became more reluctant. 

F.      JZ: Constant reminder is much more effective than a one-time acquiescence to agreement.

G.    DS: During web surfing, people are not cognizant of records being kept.

XXIV.       Closing remarks

A.      Will be much more multi-media monitoring and recording of data in the future

B.     Privacy protection has ramifications for other internet policies

C.     Is computer monitoring software offensive to dignity conception of privacy?

XXV.         FOOD!!!!!!! 

XXVI.       Thank you guests.

XXVII.    Have a nice day!