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Technology and Privacy


March 24, 2021 10:33AM

Does the 4th Amendment Prohibit Warrantless Drone Surveillance?

By Matthew Feeney

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Drone surveillance icon

Credit: Luis Prado, US

Does the Fourth Amendment, which protects against “unreasonable searches and seizures,” prohibit warrantless drone surveillance? The Supreme Court has yet to answer that question, but an appeals court in Michigan recently considered the question, and in an opinion written by Judge Kathleen Jansen answered “Yes.” The court’s analysis is particularly noteworthy in that it relied heavily on Fourth Amendment cases besides those dealing specifically with aerial surveillance and may encourage other judges to do likewise when considering the constitutionality of warrantless drone surveillance.

The facts of the case, Long Lake Township v. Todd Maxon, are as follows: officials in Long Lake Township, Michigan alleged that a couple, Todd and Heather Maxon, had violated local zoning ordinances by keeping an excessive number of junk cars and other materials on their property. To support its case against the Maxons, Long Lake Township attached photographs of the Maxon property taken via drone. The Maxons moved to suppress these photos, arguing that Long Lake Township’s warrantless photography of their property from the air constituted a violation of the Fourth Amendment.

Since 1967, the touchstone of Fourth Amendment has been the so‐​called Katz test, codified by Justice Harlan in his solo Katz v. United States concurrence. Under the test, a government official is deemed to have conducted a Fourth Amendment search if two conditions are met: 1) the subject of surveillance has exhibited a subjective expectation of privacy, and 2) that subjective expectation is one society as a whole is prepared to accept as reasonable.

The Supreme Court has considered the constitutionality of aerial surveillance in three cases from the 1980s (California v. Ciraolo, Florida v. Riley, Dow Chemical v. United States) and held in all three that that manned warrantless aerial surveillance does not violate the Fourth Amendment.

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Constitutional Law, Free Speech and Civil Liberties, Technology and Privacy
March 18, 2021 1:26PM

Sunshine Week Special: Cato v. Privacy and Civil Liberties Oversight Board

By Patrick G. Eddington

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Sunshine Week annually marks efforts to promote government transparency and accountability, largely centered on the use of the nearly six-decade old Freedom of Information Act (FOIA). It's unfortunate and alarming when governmental bodies refuse to release requested information, particularly where the request involves governmental activities that potentially threaten the constitutional rights and protections afforded citizens. It's exactly that scenario that has forced the Cato Institute to initiate a FOIA lawsuit against the federal Privacy and Civil Liberties Oversight Board (PCLOB).

Created in 2004 in response to a specific 9/11 Commission recommendation, the PCLOB bills itself as "an independent agency within the Executive Branch" with the mission of ensuring that "the federal government's efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties." Since January 2014, the PCLOB has released seven major public reports, including a few on key provisions of the PATRIOT Act and on surveillance legislation made necessary by the exposure of the unconstitutional NSA STELLAR WIND program. But in May 2019, the PCLOB refused a Cato FOIA request that it make public a versions of any Executive Order 12333 reports.

Specifically, Cato sought the following:

  1. Any Board reports issued on federal department and agency activities conducted pursuant to Executive Order 12333, as amended; and
  2. Any correspondence in any form to or from the Board regarding alleged or actual violations of laws, regulations, or executive orders by any federal department or agency under the purview of the Board.
  3. Any correspondence in any form to or from the Board regarding refusals by any federal department or agency to provide information requested by the Board pursuant to its statutory oversight mission.
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Free Speech and Civil Liberties, Technology and Privacy, Congress, Counterterrorism and Homeland Security
February 17, 2021 11:00AM

Six Principles for Misunderstanding Free Speech and Section 230

By Matthew Feeney and Will Duffield

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Computer parts

Earlier this month, Heartland Institute President James Taylor published a paper titled, “Six Principles for State Legislators Seeking to Protect Free Speech on Social Media Platforms.” Each principle omits important legal facts, betrays a confusion about the current market, or reveals a misunderstanding of the history behind the law at issue: Section 230 of the Communications Decency Act, which protects interactive computers services (including social media platforms, comments sections, and websites such as Yelp) from being held civilly liable for content posted by third party users. There are some narrow exceptions, but generally speaking the law shields Facebook, for example, from being held liable for its users posts.

As Parler returns to the internet via friendly webhosts and domain registrars shielded by Section 230, we continue to believe that critics of the legislation have things exactly backwards: Section 230 has been, and continues to be, a tremendous boon to free speech. By putting property rights first, it has allowed alternative providers and platforms to carry unpopular speech without fear, ensuring that the internet remains “a forum for a true diversity of political discourse.” Efforts to alter or reform Section 230 risk eroding its universal protections, advantaging large, restrictive incumbents who can more easily bear regulatory burdens and litigation costs. It behooves us to continue allowing private solutions to develop before leaping to legislative remedies that, whatever their intention, may make the environment less amenable to free expression.

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Technology and Privacy
February 5, 2021 3:37PM

Algorithmic Bias Under the Biden Administration

By Matthew Feeney and Rachel Chiu

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This is the third and final entry analyzing technology policy issues (the gig economy, online speech, and algorithmic bias) under the Biden administration.

Algorithmic Bias in the Public and Private Sector

Private companies, federal agencies, and law enforcement are increasingly using Artificial intelligence (AI) and machine learning to evaluate information. According to the National Security Commission on Artificial Intelligence, AI refers to the “ability of a computer system to solve problems and to perform tasks that would otherwise require human intelligence.” AI-powered systems may be faster and more accurate than humans but, as a result of flawed datasets and design, they can still discriminate and exhibit bias.

AI consists of a series of algorithms, “instructions” for solving a problem. Algorithmic decision-making refers to the process of inputting data to generate a score, choice, or other output. The result is used to render a decision such as classification, prioritization, or sorting.

Although algorithms are inherently methodical processes, a 2019 Microsoft research study demonstrated how they can still discriminate. After being trained with Google News articles, a natural language processing program was tasked to predict words in analogies. The program produced gender stereotypes to an alarming extent because it learned from flawed data. Although the technology did not contain prejudice, it mimicked human bias present in the training dataset.

Algorithmic decision-making is used for a range of purposes, including hiring, personal finance, and policing. Thus, when algorithmic bias occurs, it can have significant effects on social and economic opportunities.

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Technology and Privacy
January 29, 2021 3:59PM

Biden, Section 230, and the Response to Political Extremism

By Matthew Feeney

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Last year, Biden called for Section 230 of the Communications Decency Act to be revoked. The law, which Biden voted for in 1996, protects interactive computer services from being held liable for the vast majority of third party content. In recent years, the law has become a popular target of conservative lawmakers, who allege that the largest social media companies implement content moderation policies that stifle conservative speech. Biden and some other members of the Democratic Party have different concerns.

Biden cited online misinformation as motivating his call for Section 230 repeal, "There is no editorial impact at all on Facebook. None. None whatsoever. It’s irresponsible. It’s totally irresponsible." Bruce Reed, Biden’s chief of staff from 2011 to 2013 and current deputy White House chief of staff, has expressed concerns about Section 230, noting that the law "hurts our kids and is doing possibly irreparable damage to our democracy."

Harris supported the most recent amendment to Section 230, The Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) package. SESTA/FOSTA added content associated with sex trafficking to the list of Section 230 exceptions. While no doubt well-intended, the law resulted in harmful unintended consequences.

When considering Section 230 amendments as a means to address the harms associated with online speech White House officials and their allies in Congress should proceed with caution. Section 230 may look like a tempting target for amendment, but changes to Section 230 will not eliminate harmful content and may entrench market incumbents.

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Free Speech and Civil Liberties, Technology and Privacy
January 15, 2021 1:56PM

Online Extremism to Dominate Section 230 and Encryption Debates

By Matthew Feeney

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Capitol Riots

Last week’s attack on the Capitol removed any doubts that the regulation of social media will continue to be a Congressional priority after the Trump administration ends. The president and his allies have argued for legislative changes to address alleged anti‐​conservative bias within the most popular social media companies. These complaints have often overshadowed concerns from Democratic lawmakers, who have expressed unease for years about the proliferation of extremist content online. Many of these lawmakers no doubt view last week’s tragedy as a vindication of their concerns, and they will act. We should expect renewed policy debates on Section 230 and encryption to center around political extremism.

Sadly, last week’s attack on the Capitol was not the first time Americans have witnessed domestic violence from those who become expressed extremist views online. In October 2018 a shooter murdered eleven congregants in the Tree of Life Synagogue in Pittsburgh. Shortly after, Sen. Mark Warner (D-VA) said, “I have serious concerns that the proliferation of extremist content — which has radicalized violent extremists ranging from Islamists to neo‐​Nazis — occurs in no small part because the largest social media platforms enjoy complete immunity for the content that their sites feature and that their algorithms promote.” The Pittsburgh shooter had been an active poster on Gab, a social media site popular with white nationalists and conspiracy theorists. He allegedly posted, “HIAS [Hebrew Immigrant Aid Society] likes to bring invaders in that kill our people. I can’t sit by and watch my people get slaughtered. Screw your optics, I’m going in.“

Sen. Warner’s mention of “complete immunity” is a reference to Section 230 of the Communications Decency Act. The law states that interactive computer services, such as Facebook and Twitter, are not considered the publishers of the vast majority of content posted by users. Warner is incorrect when he describes Section 230 as providing “complete immunity.” The law does include exceptions for (among others things) content related to sex trafficking and content that violates copyright. Nonetheless, Warner is correct to note that online content can radicalize social media users.

A few months after the shooting in Pittsburgh, a white supremacist murdered dozens of Muslims during a shooting at two mosques in Christchurch, New Zealand—and live‐​streamed the shooting on Facebook. He had visited sites such as 4chan’s /​pol board, well‐​known as a home for alt‐​right content. His descent into xenophobic ideology did not occur solely on the Internet. He went on a pilgrimage to Europe, visiting sites of Islamic terrorist attacks and meeting with identitarian leaders. After the shooting, Sen. Richard Blumenthal (D-CT) accused Facebook, YouTube, and Twitter of turning a “blind eye to hate & racism on their platforms.”

While the shootings in Pittsburgh and Christchurch prompted discussions about online extremist speech, it is safe to assume that the recent storming of the Capitol will lead to a much larger backlash against online extremist speech.

One of the most popular recent venues for extremist political speech and conspiracy theories was Parler. A social media network that portrayed itself as an online free speech zone, Parler became a popular venue for Trump supporters amid allegations of Silicon Valley anti‐​conservative bias. Parler users were among the rioters at the Capitol last week. Perhaps in anticipation of political backlash, Apple and Google removed Parler from their app stores. Amazon joined them in taking action by suspending Parler from Amazon Web Services (AWS) hosting, taking the site offline entirely. Parler is suing AWS, alleging that Amazon breached its contract. Since the AWS news, Parler has registered its domain with Epik, a domain registrar of last resort for the far‐​right.

Since Google, Apple, and Amazon severed ties with Parler a range of online platforms have seen an increase in users. Tens of millions of people signed up for Signal and Telegram, two encrypted messaging apps. Reporting from The New York Times reveals that at least one militia group is using Signal to organize its activities.

That Parler enjoyed Section 230 protections and political extremists moved to encrypted channels suggest that upcoming debates on online speech and encryption will feature frequent references to extremist content.

Although much of the debate surrounding objectionable online content features Section 230, we should not forget that it is the First Amendment, not Section 230, that protects a private company’s decision to remove content they find objectionable. Section 230 is about liability, not the freedom of association. Nonetheless, Section 230 remains crucial for any institution allowing users to post content on walls, message boards, review pages, etc.

Last year, a bipartisan group of senators proposed the EARN IT Act. The bill, as its name implies, would require companies to “earn” Section 230 protections, making them contingent on services adhering to a set of best practices developed by a commission aimed at tackling child sexual abuse material. Civil libertarians voiced their concerns about the bill, which many consider a threat to encryption. After all, if the commission deemed the creation of a “back door” to encrypted content part of their best practices, interactive computer services would be put in the position of choosing between threatening their users’ security and privacy or facing the potential of crippling lawsuits.

As lawmakers see political extremists flock to end‐​to‐​end encrypted messaging services such as Signal, they may look to proposals such as the EARN IT Act and seek to incentivize services to allow law enforcement to decrypt encrypted content. It is true that criminals use encryption, but so do journalists, whistleblowers, dissidents, members of the military, Capitol Hill staff, and many others. There is no such thing as encryption that only works for the good guys. Weakening encryption may help law enforcement investigate crimes, but it will put the privacy and security of Americans at risk.

Any legislation to address political extremism will quickly run into a stubborn barrier: the First Amendment. Much of the content shared on Parler was vile, but it was not illegal. Under U.S. law, it is not illegal to say that the world would be better if the vice president were killed, or spread conspiracy theories and racist content.

The list of speech not protected by the First Amendment is short, but it does include incitement to “imminent lawless action.” Although many commentators have described the rhetoric of President Trump’s Jan. 6th comments as “inciting” the mob to attack the Capitol, it is not obvious that his comments clear the Supreme Court’s incitement test set out in Brandenburg v. Ohio (1969). Under Brandenburg, speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” is not protected by the First Amendment. Legal scholars and commentators have come to different conclusions about whether Trump’s comments meet that standard.

Whether Trump’s comments are illegal could have a significant impact on online speech if Section 230 is amended. Boston University Law School’s Danielle Citron and the Brookings Institution’s Ben Wittes have proposed changing Section 230 so that it applies only to interactive computer services that take “reasonable steps to prevent or address unlawful uses of its services.”

If such an amendment were enacted, interactive computer services would have an incentive to embrace false positives in order to ensure that they don’t run afoul of Section 230. Awful but lawful speech could be stifled because sites hosting third‐​party content would seek to avoid bankruptcy via a tsunami of lawsuits.

Some might ask, “What’s wrong with services having an incentive to err on the side of caution when it comes to borderline illegal speech?” The answer is that such an environment is likely to be anti‐​competitive, with powerful market incumbents best positioned to adapt to how courts and lawmakers interpret “reasonable steps.” While concerns about online political extremism are likely to prompt lawmakers to seek carrots and sticks for social media companies, we should keep in mind that Section 230 amendments could ultimately entrench the companies so many are criticizing.

The attack on the Capitol last week will bring online political extremism to the center of debates about encryption and Section 230. Amid such debates, we should be wary of the unintended consequences of weakening encryption and amending Section 230.

Related Tags
Free Speech and Civil Liberties, Technology and Privacy
January 15, 2021 12:19PM

Transit Unions to DHS: Give America a “No Ride” List

By Patrick G. Eddington

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We’re just 15 days into 2021, and the number of really bad, anti‐​liberty policy and legislative proposals are multiplying like mold spores.

To that end, I would direct you to the request by the International Association of Sheet Metal, Air, Rail and Transportation Workers that the Transportation Security Administration (TSA) create a “No Ride” list for passenger rail akin to TSA’s infamous “No Fly” list for the airline industry. From the unions’ press release:

Suspected insurrectionists continue to threaten further violence as the transition to President‐​elect Joe Biden’s administration approaches next week. Some of these have been relegated to the No Fly List overseen by FAA, preventing them from traveling by air, but no such restriction exists for the national passenger rail network. SMART-TD and BLET urge that a “no‐​ride” list that mirrors FAA’s list be enacted immediately.

By all means, lets make passenger rail travel just as hell‐​like as airline travel: insane requirements for removing shoes, non‐​science based limits on liquid carry‐​on items, more expensive, ineffectual screening technology, and of course, even longer delays in being able to board your train and get to your destination. Apparently, union reps have forgotten just how ineffectual and liberty‐​damaging TSA’s VIPR teams were before Trump—in one of his few useful acts as President—tried to kill the VIPR program.

This union proposal naturally begs additional questions: where will it end? Will the union representing Washington Metropolitan Transportation Authority (WMATA) ask for a “No Ride” list for DC’s Metrorail and Metrobus services? After all, since you don’t know who might morph from a protestor to an insurrectionists, better to to simply take any names of the January 6, 2021 insurrectionists (alleged or actual) on the TSA “No Fly” list and get them banned from riding Amtrak, DC Metro, or any other transit system, right?

That our nation’s Capitol building was overrun by at least hundreds seeking to overturn a fair, free, and valid election is clear. The Department of Justice has already created a running, online list of those thus far charged with federal crimes in connection with the insurrectionist event. What we don’t need is yet another due process‐​free, innuendo driven, government run transportation security “list” that gives us another debacle like TSA’s Quiet Skies program, and that further undermines the ability of citizens not wanted for a crime to go about their travel unmolested.

Related Tags
Government and Politics, Technology and Privacy, Center for Representative Government, Congress

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