Sunday, May 06, 2007

Our Public "Private" Lives

On October 15, 1999, in Nashua, New Hampshire, Liam Youens murdered Amy Boyer and then killed himself.

Youens shot twenty-year old Amy as she left the dental office where she was working while attending college and then turned the gun on himself.

Why did he kill her? For some reason, Youens became obsessed with Amy in high school, after seeing her on a bus.

The two apparently never even had a conversation, but over the years Liam Youens became more and more obsessed with Amy Bouer. For several years he maintained a website – -- on which he rambled about his obsession with her, and with her death. The site included comments like “I have always lusted for the death of Amy” and “Why am I killing her”, repeated three times.

Youens also stalked Amy by staking out her parents’ home at night. He seems to have finally decided to ambush Amy as she left work, but didn’t know where that was. To find out, he contacted an “Internet-based investigation and information service known as” Remsburg v. Docusearch, Inc., 149 N.H. 148, 816 A.2d 1001 (New Hampshire Supreme Court 2003). Youens placed several orders with Docusearch for, among other things, Amy’s birth date and Social Security number. After placing several requests, he finally got the address of the orthodontist for whom she was working. Soon afterward, he drove there and killed her.

Since Youens killed himself, as well, there was no homicide prosecution. Amy’s mother sought a type of redress by suing the only available participant in her daugher’s death: Docusearch, Inc. Helen Remsburg filed a federal lawsuit against the company in which she asserted several civil, tort causes of action – one of which was invasion of privacy. Remsburg v. Docusearch, Inc., 2002 WL 844403 (U.S. District Court for the District of New Hampshire 2002).

In this claim, Mrs. Remsburg argued that Amy “had a reasonable expectation of privacy in her personal information, including . . . her work address.” New Hampshire’s law in this area was not clear, so the federal district court certified the question of whether one has an actionable expectation of privacy in their work address to the New Hampshire Supreme Court. This is a process federal courts use when they need to apply state law in a suit before them; the federal court essentially asks the state court to decide what the law is.

This is what the New Hampshire Supreme Court did. It actually disposed of the workplace privacy question rather summarily:
We must first establish whether a work address is something secret, secluded or private about the plaintiff. . . .

In most cases, a person works in a public place. `On the public street, or in any other public place, [a person] has no legal right to be alone.’ W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117, at 855 (5th ed.1984).

A person's employment, where he lives, and where he works are exposures which we all must suffer. We have no reasonable expectation of privacy as to our identity or as to where we live or work. Our commuting to and from where we live and work is not done clandestinely and each place provides a facet of our total identity.

Webb v. City of Shreveport, 371 So.2d 316, 319 (La.Ct.App.1979). Thus, where a person's work address is readily observable by members of the public, the address cannot be private and no . . . action can be maintained.

Remsburg v. Docusearch, Inc., (New Hampshire Supreme Court 2003).

The same result applies under the Fourth Amendment, which limits what government agents can and can’t do in investigating crime. There’s a long line of cases holding that our movements in public, which can be observed by anyone, are not private.

And since what occurs in public places is not private under the Fourth Amendment (or for civil tort law governing invasions of privacy), the government can install cameras to record our movements in public without obtaining a warrant. As a Delaware court noted, “all courts who have considered the Fourth Amendment in the context of cameras aimed at public streets or other areas frequented by large groups of people have determined that an expectation of privacy in these areas is unreasonable.” State v. Bailey, 2004 WL 2914320 (Delaware Superior Court 2004).

Several courts have also found that there is no Fourth Amendment violation when the government puts video cameras on telephone poles and aims them at someone’s home in order to monitor what goes on outside the home. In United States v. Jackson, 213 F.3d 1269 (10th Cir. 2000), for example, federal agents did precisely this and the Tenth Circuit Court of Appeals held that there was no Fourth Amendment issue:

[T]he video cameras installed on the telephone poles were incapable of viewing inside the houses, and were capable of observing only what any passerby would easily have been able to observe. Thus, Ms. Jackson had no reasonable expectation of privacy that was intruded upon by the video cameras. Therefore, we conclude Ms. Jackson's rights under the Fourth Amendment were not implicated, and there was no need for the police officers to obtain a search warrant before installing and utilizing the video cameras.

Some courts suggest it would violate the Fourth Amendment to use them to look inside the home, though I’d argue there is no violation even then if the camera is only looking through an unshielded window, i.e., a window with no shades or curtains to conceal what goes on inside.

I actually agree with all of these courts, as long as the observations of someone’s home or activities are limited to what a human being could observe by following them (to work, say) or by standing in a particular, public place (on the sidewalk in front of or across the street from Ms. Jackson’s home, say). If and when we start encountering technology that lets government agents and stalkers spy on us in new and really intrusive ways (by looking through the walls of our home, for example), I’d say these cases don’t apply.

But that’s not what I wanted to talk about in this post. What I want to talk about is the residual issue that bothers me in these cases: the collection and retention of data about our lives.

Simply observing what we do in public spaces is nothing new. We have been observing each other, often minutely, since humans began living in social groupings. We are used to this, we intuitively understand the contours and consequences of this type of routine observation and accommodate ourselves accordingly.

It seems to me, though, that capturing and retaining the precise details of our activities, even in public, adds a dimension that has never been present before. The installation of cameras on public streets and in other public places, coupled with the increasing use and pervasiveness of embedded technologies like RFID chips will make it possible to track and record essentially every aspect of our “public” lives. Who, you ask, will be doing this tracking and recordation – the government?

Well, in some instances (as with Ms. Jackson), it will be the government, but for the most part it will be done by private entities – businesses who want to familiarize themselves without tastes and habit so they can more successfully pitch their products to us. (Think of the mobile advertisements in the film “Minority Report,” if you’ve see it.) Much of this tracking and recordation will involve our online activities, as it already does, but that, too, is outside the scope of the Fourth Amendment and comparable civil privacy rights.

I’m not sure what this new dimension is – whether it implicates privacy or something else. I can see the argument that it constitutes an incremental infringement on privacy because of the accuracy and retention of the data being collected. When I used to work in Chicago, I took a commuter train from Evanston to the Loop five days a week (and sometimes on Saturdays). I’d tend to see familiar faces on the train, just because the same people usually rode to and from work at basically the same times. I might have been able to pick some of those faces out of a crowd, or out of a police photo lineup if I’d been asked, but that’s probably the most I could have done. I would never have been able to identify precise physical characteristics (height, weight, eye color, etc.) or even clothes they’d worn, perhaps over and over.

In other words, I would have observed all that information about them, on some level, but my observations would have been sloppy (you basic vague impression of a person) and transient (quickly forgetting what I’d seen in the press of dealing with my own life). With surveillance cameras and RFID chips in clothing and train passes, every aspect of every commuter’s appearance, schedule (took the 7:45 a.m. train X number of times in May, took the 8:15 a.m. train twice that month) and habits (purchased bottled water at the kiosk in the train station on Monday evening, had two beers at the bar in the station on Friday) will be recorded and retained. How long will it be retained? Well, I know that surveillance data is frequently discarded or overwritten, but that’s out of economy, not necessity.

We can, and will, store immense quantities of digital data, which means all of this mundane information about our lives can be available . . . to whomever, for whatever reasons. If it is held by commercial entities, which is the most likely scenario, anyone from the government to a Liam Youens can gain access to the specific details of our lives by requesting them and paying a fee.

I don’t know if it’s privacy or something else, but I can’t help feeling that we lose “something” when the “public” details of our lives are archived and available to whomever, or whatever, wants to rummage through them.

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