Questions and Discussion

Privacy Guarding Post Office?

Even though the 4th Amendment is pretty much dead because it gives no protection to identities, Eben mentioned that savvy individuals could overcome or evade the invasion of privacy through methods of self-created privacy and pseudonymity. When it comes to purely digital exchanges in the network society, these tools include encryption and the like, but is there a ready analog to prevent the linking of network and physical-world activities? Obviously, if digital cash had succeeded, it would be much easier to de-link one’s online and offline activities, since credit card information and shipping addresses (in the case of online shopping) can be accessed with a subpoena blank.

However, would it be possible to establish something like a private post office/purchasing agent? For the sake of this example, let’s call it the Privacy Guarding Post Office (PGPO). The idea would be that customers would put money in an anonymized account (through some simple encryption) that would generate temporary credit card numbers for use online (and probably with the PGPO listed as the purchaser for credit reasons), such that any tracking would only lead back to the PGPO, which would retain no personal data whatsoever. Any products that would be shipped to customers of the PGPO would be mailed to a "P.O. box," again determined through encryption methods and possibly re-routed internally or from office to office to further anonymize the pattern of delivery. Ideally, such a system would be engineered such that the PGPO retains no knowledge of the customers' identities or the contents of their activities.

In terms of weaknesses, I anticipate that there could be significant transaction costs that might make the service too expensive to attract a sufficient customer base to meet even its fixed costs of operation. After all, as Google has readily shown, people don't mind selling their rights for a nickel. However, if there are enough people who value their privacy, that might not be the biggest issue. The more likely weakness is that such an institution would drive the state (and especially national security people) insane, and the institution would not survive the need to inspect the contents of delivery (for fear of terrorism and child pornography—after all, why else would you use such a service?). Of course, the last point is precisely why the 4th Amendment is probably going to stay dead: the exceptions have swallowed the rule.

-- RickSchwartz - 16 Feb 2009

A New National Security Exclusionary Rule?

My last question implicated the rule-swallowing exception of "national security" as a justification for unlimited state access to any and all data it chooses to request. Given the political power behind this impulse and the calibration of the 4th Amendment to places, rather than identities, that exception seems likely to remain the real rule. Now, this may be nothing more than extremely wishful thinking, but one potentially politically feasible way to blunt the force of the exception might be to officially grant the state as much access as is necessary to achieve its national security objectives (since it would take that access anyway), but require the sequestration of all of that data within the national security agencies (a sort of reverse silver platter rule). This would require some form of legislation, possibly justified by the need for data integrity within that agency or a compromise for privacy (which liberals sometimes pay lip-service to before retrenching on their promises), such that there is an exclusionary rule once the data has been collected for national security reasons. Essentially, if the state chose to collect data for national security, it couldn't hand over that data to law enforcement personnel or use it in any other contexts, and any such data that could be shown to have been collected for national security would have the presumption that it was derived from that collection and therefore inadmissible as evidence. Such a rule would also encourage the state to be a lot more selective about which data it collects for fear of undercutting its other law enforcement objectives.

Of course, mere inadmissibility into evidence is not going to blunt the full potential force of data that has been collected, since the state can threaten autonomy without even reaching proceedings requiring the introduction of evidence. Furthermore, there would be little to no transparency to determine whether or not information sharing is actually occurring between federal agents, or whether the law enforcement personnel are getting "tips" from the national security personnel. And given Congress' willingness to sanction the invasion of privacy in the face of public outrage, it seems unlikely that such legislation would pass any time soon.

-- RickSchwartz - 16 Feb 2009