To some, the National Security Agency revelations of 2013 came as little surprise. With a gargantuan budget and the PATRIOT Act’s relaxed civil liberties protections, perhaps it was inevitable that the NSA would go above and beyond. But the news also struck an invisible chord. Many experienced a new feeling, a queasy sensation that being watched was inescapable.
New information in December didn’t do much to make that feeling go away. While the NSA tried to tamp down on the outrage and characterize its activities as limited, last month, independent researcher Ashkan Soltani and veteran investigative reporter Barton Gellman revealed a new surprise—that the agency was collecting nearly 5 billion records each day that reveal cell phone locations. Effectively, they showed, cell phone users’ movements are being tracked with relative ease.
All of this leads to a bigger question: What’s a reasonable expectation of privacy? And how much surveillance is too much? In order to answer that, Soltani, along Internet freedom lawyer Kevin Bankston, published a paper in the Yale Law Journal Online, mapping just how cheap it is for law enforcement to track individual citizens.
Take a gander.
What do these numbers tell us? First, with modern technology, it’s getting increasingly easy (read: cheap) to monitor everybody. In that context, the Fourth Amendment’s protection against "unreasonable search and seizure" might seem out of date. After all, "search" used to be kind of limited in the first place. In the good old days, it required a person to come into your room and pilfer through your desk and underpants.
But when it actually only takes a few clicks for law enforcement to learn a great deal of personal information about us, we experience what Soltani and Bankston refer to as a "technology-prompted rights-shift." Where law enforcement officials might feel less comfortable (and less legal) about going through someone’s desk without a warrant, technological progress is now leapfrogging way past the effort necessary to do so. The rights of someone who isn’t particularly suspicious, formerly safeguarded by a barrier of cost, effort, or diversion of resources from the real bad guys, are gone.
"Privacy is a balancing act between the need of someone to get information about you and the practical obscurity afforded you in the world," Soltani says. "But as that practical obscurity wears away, your privacy also wears away."
In order to measure that rights-shift, or that privacy erosion, Soltani and Bankston looked to Supreme Court decisions in which the Justices decided how much technology-based tracking over a certain period of time violated a reasonable expectation of privacy. They then looked at the costs of new tracking techniques, which were vastly more efficient, over the old ones. If you use cost as a metric, Soltani and Bankston came up with a rule of thumb:
"If the cost of the surveillance using the new technique is an order of magnitude (10 times) less than the cost of the surveillance without using the new technique, then the new technique violates a reasonable expectation of privacy," the researchers write.
All this could be used to supplement Fourth Amendment arguments in court, Soltani says. But if you’re not a lawyer, it’s fascinating alone to look at how the cheapness of a new technology can change our entire sense of self (and propriety) in the world. Unless, of course, you’re already committed to quantifying and sharing every little bit of yourself with everyone else.