Tag Archives: Third-Party Doctrine

Open Letter to Tim Cook

Apple products are themselves evidence for the proper model of legal protection for privacy. Why undermine that now by supporting federal regulation based on the wrong model?

Dear Mr. Cook,

I’ve been an Apple user since your company released the beautiful, floating-screen iMac in 2002. Epinions.com no longer exists, but soon after I got my iMac I wrote an effusive review there called “Fashion, Function and Fun–All in One.” Since then I’ve used nothing but Mac computers, as well as iPads, iPhones, and an Apple Watch. Like so many Apple users, I love the elegant, intuitive design and ease of use of your products.

Although my academic research has been focused on the “right” to privacy, I never paid too close attention to the privacy features of Apple products. Yes, I was relieved to learn that Apple computers are less susceptible to viruses than other brands. And I loved hearing about how seriously Steve Jobs took the responsibility of Apple customers entrusting their private information to Apple. But it was only in recent years that I learned more about what, concretely, Apple does to protect customer privacy–by creating the tools necessary for us to safeguard and control our private information.

First, I cheered Apple’s refusal to write software that would unlock a user’s encrypted phone. Phone encryption puts law enforcement back in the position they’ve been in traditionally: having to present a warrant to the actual user/data subject/suspect, instead of presenting a warrant, or perhaps merely a subpoena, to a “third party.” Given the amount of private information contained in our phones–the Supreme Court has recognized that it’s often even more private, more comprehensive, than what might be found by searching our homes–law enforcement should have to present a search warrant to the subject of investigation directly. Apple’s default encryption features help ensure this.

More recently, I was excited to learn about numerous other features of Apple hardware and software that allow us to withhold personal information about ourselves, our devices, and our use of them, from companies whose web sites we visit, or whose apps we use. I was so impressed with Apple’s efforts to continually improve these and make them more robust, that I featured this Fast Company article about them as a “good news” stories in a “News Sandwich”:

Most people reading this letter–you included–will probably now expect me to add Apple’s support this week for “comprehensive federal privacy legislation” as another reason to applaud your company’s efforts to protect our privacy interests. But the opposite is true. I believe that, in supporting federal privacy regulation, you are undermining the progress you’ve made putting control over privacy into the hands of us, your customers.

Why? Because by supporting the enactment of privacy regulation–particularly regulation based on the idea that “privacy is a fundamental human right”–you are helping to further entrench an entire legal framework that undermines our ability to actually protect privacy. This seems ironic, perhaps, but consider the evidence for the proper model for legal protection of privacy that your company itself has provided. Your products have become a powerful demonstration of the real foundation of privacy: property and contract. You allow us to buy a product, which we can then use to create a state of privacy for ourselves, to protect our private information, and to control which information we share with other companies. Your products put the control over privacy where it should be: with the individual, via our exercise of our property and contract rights.

Unfortunately, by supporting federal legislation based on a distinct right to privacy, you risk ripping control over privacy out of our hands, and putting it in the hands of government. This means, per the current legal framework, we’ll be even more at the mercy of whatever some judge, legislator or bureaucrat deems our “reasonable expectations of privacy” to be. (Read more here as to why upholding a distinct “right” to privacy is not just “theoretically” wrong, but in fact destroys our ability to properly protect states of privacy.) What’s worse is that Apple is doing this at precisely the time when the Supreme Court may be prepared to recognize the proper basis for the legal protection of privacy. (See the dissents by Justices Thomas and Gorsuch in the Court’s recent Carpenter ruling, discussing a property basis for requiring a warrant to obtain cell phone location data from a service provider.*)

You’ve done so much–perhaps more than any other tech company–to give us de facto privacy. Please don’t compromise that by helping to make de jure privacy all but impossible.

Sincerely,

Amy Peikoff

*Incidentally, the full solution to the problem of the third-party doctrine, presented in Carpenter, is outlined in this article.

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“Will The Supreme Court Legalize Privacy?” TODAY at 3 p.m. ET (12 p.m. PT)

This morning the Supreme Court heard Carpenter v. United States, a case concerning legal protection for the privacy of location data collected by cell phone service providers. Will the Court reinstate Fourth Amendment privacy protection for our data? This and more on today’s show. See Program Notes, below, for the stories, etc., I plan to discuss.

Join in live, either by phone or in the chat room at BlogTalk Radio!

The show can be accessed here.

To access the show’s page at BlogTalk Radio, which will allow you to check out a past episode or to subscribe via iTunes and other services, use this link.

To access the iTunes store page for “Don’t Let It Go…Unheard,” where you can find past episodes, subscribe, and leave ratings and reviews (pretty please!), use this link.

This show is fueled, in part, by Bulletproof Coffee. And now you can help support it by fueling up with some Bulletproof Coffee yourself! Grab some Brain Octane Oil, which, combined with grass-fed butter and blended in your coffee, will help you start your day with sustained energy and focus.

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Program Notes

The Supreme Court’s Opportunity to Legalize Privacy

Carpenter v. United States: The Court’s Opportunity to Legalize Privacy

United States v. Miller

Smith v. Maryland

Carpenter v United States at SCOTUSblog

Cops, Cellphones and Privacy at the Supreme Court

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“Edward Snowden vs. Privacy,” Today at 3 p.m. ET (12 p.m. PT)

While Edward Snowden has done heroic things to expose our government’s unjust mass surveillance programs, he’s unfortunately promoting the same theory of privacy that gave rise to those programs. Tune in to hear more. Other stories, too. See Program Notes, below, for all the stories, etc., I plan to discuss.

Join in live, either by phone or in the chat room at BlogTalk Radio!

The show can be accessed here.

To access the show’s page at BlogTalk Radio, which will allow you to check out a past episode or to subscribe via iTunes and other services, use this link.

To access the iTunes store page for “Don’t Let It Go…Unheard,” where you can find past episodes, subscribe, and leave ratings and reviews (pretty please!), use this link.

Finally, if you would like to support the show financially, please donate using your Pay Pal account or Credit Card here.

Program Notes

Bialetti 6-Cup Stovetop Espresso Maker

Your Keurig Machine May Be Covered In Bacteria And Mold

Edward Snowden just made an impassioned argument for why privacy is the most important right HT Stuart Hayashi

Edward Snowden Says Disclosures Bolstered Individual Privacy

House Intelligence Committee Urges No Pardon for Edward Snowden

Dragnet NSA Spying Survives: 2015 in Review

Word Games: What the NSA Means by “Targeted” Surveillance Under Section 702

AP, Other Media, Sue FBI for Details on iPhone Hacking Tool

Toward a Society of Privacy (MP3 download)

Legalizing Privacy: Why and How (MP3 download)

Beyond Reductionism: Reconsidering the Right to Privacy

Don’t Tread on My Metadata

20 Guantanamo detainees freed by Obama suspected of returning to terror HT William Bush

U.S. signs record $38B military aid deal with Israel HT William Bush

White House raises refugee target to 110,000

Ivanka Trump: US must ‘catch up with the times’ on guaranteed maternity leave

Exclusive: Hillary Clinton Campaign Systematically Overcharging Poorest Donors HT Glenn Jameson

How Bernie Sanders Die-Hards Echo Clinton Conspiracy Theories

Union Leader of New Hampshire Endorses Gary Johnson Over Donald Trump

Libertarians secure spot on all 50 state, DC ballots HT Rob Abiera

Christian bakers fined $135,000 for refusing to make cake for a gay wedding fight back HT Rob Abiera

Boeing 737 Max jets will launch the age of $69 one way trans-Atlantic fares and it should start in March 2017 HT Brian Yoder


HT Glenn Jameson

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