Privacy Protests

Interesting law journal article: “Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion,” by Elizabeth E. Joh.

Abstract: The police tend to think that those who evade surveillance are criminals. Yet the evasion may only be a protest against the surveillance itself. Faced with the growing surveillance capacities of the government, some people object. They buy “burners” (prepaid phones) or “freedom phones” from Asia that have had all tracking devices removed, or they hide their smartphones in ad hoc Faraday cages that block their signals. They use to surf the internet. They identify tracking devices with GPS detectors. They avoid credit cards and choose cash, prepaid debit cards, or bitcoins. They burn their garbage. At the extreme end, some “live off the grid” and cut off all contact with the modern world.

These are all examples of what I call privacy protests: actions individuals take to block or to thwart government surveillance for reasons that are unrelated to criminal wrongdoing. Those engaged in privacy protests do so primarily because they object to the presence of perceived or potential government surveillance in their lives. How do we tell the difference between privacy protests and criminal evasions, and why does it matter? Surprisingly scant attention has been given to these questions, in part because Fourth Amendment law makes little distinction between ordinary criminal evasions and privacy protests. This article discusses the importance of these ordinary acts of resistance, their place in constitutional criminal procedure, and their potential social value in the struggle over the meaning of privacy.

Read this while thinking about the lack of any legal notion of civil disobedience in cyberspace.

Tags: , , , , ,

Posted on July 3, 2013 at 12:30 PM • 40 Comments

Comments

Jeff • July 3, 2013 1:25 PM

They identify tracking devices with GPS detectors.

Huh? How does that work? My understanding of GPS was that the satellites send out signals, the device calculates positions based on the signals. Every point on the earth has GPS signals whether there’s a receiver or not. So how the heck would a GPS detector work?

Carpe_Noctem • July 3, 2013 1:46 PM

So, evasion of surveillance (physically and in cyberspace) can be indicative of criminality or of privacy protest… but where is the room in this paper addressing simple security measures for securities sake? Seems like quite a glaring hole. Many of the things listed as either one or the other are in fact carried out daily by people neither protesting privacy encroachments nor engaging in criminality. For example, a businessman working for a R&D tech firm that travels abroad frequently should be using many of these techniques.

That being said, I also enjoy how intellectually aloof the writers basically say, “Well, the government is going to think you are a potential threat if you evade surveillance, and it’s highly likely that you will be wrapped up in some unjust action… but this will increase the public’s awareness of the value of privacy. (unless of course the government decides to amp up it’s oppressiveness…)”

As your frequent readers already know, all the “judges should”, “courts should” and “police forces can” (do X to improve their constitutionality) is nothing but hypothetical posturing when all evidence shows that it’s not happening.

This is the most important paragraph in the whole paper:

“Faced with a sufficient enough number of privacy protests, the
government might meet resistance with greater coercive force on its
own part to collect information. Or, the government might provide
incentives to individuals to encourage greater voluntary compliance.151
(The government might also engage in responsive strategies to thwart
those who are themselves trying to thwart state surveillance.152)”

That is what is happening now, not the other.

NobodySpecial • July 3, 2013 2:02 PM

@jeff – you don’t necessarily need a “detector” to detect them.
If you recently became a board member of the EFF and discover a small black box with a cellphone antennae attached to your car you can probably assume it isn’t an anti-smog device.

Especially since – given the way government operate – it will probably be marked “secret surveillance device: property of NSA” and a serial number

NobodySpecial • July 3, 2013 2:06 PM

ps. although GPS receivers are purely receivers it is relatively simple to detect an antennae with a tuned circuit attached – which is all a radio receiver is – at least at short range.

Simply broadcast a wideband signal in the GPS frequency range and search for any returned signal with a frequency component missing.

HJohn • July 3, 2013 2:12 PM

@: The police tend to think that those who evade surveillance are criminals.

I think an important observation isn’t that the police are bad people here. They’re trying to do their jobs, believe in what they do, and usually (and often correctly) view themselves as the good guys. After all, most of them are sincerely trying to do the right thing.

A point in this is that the law isn’t just designed to protect us against bad people It is also designed to protect us against good people who do the wrong things, often thinking they are doing the right thing. After all, if they are trying to catch a criminal, they are trying to do the right thing. But that good cause can be a blank check for harassment of a thousands of innocents per one guilty.

I’ve previously said about terrorism and the legal system. Obviously, terrorists are far worse than lawyers, it’s not even a contest. But I fear the legal system more than I fear terrorism. Usually for the same reason the police at times can scare me more than criminals, not that I think they are bad people unworthy of respect, but that I fear what can be done do me when trying to DoTheRightThing(TM).

Anonymouse • July 3, 2013 2:34 PM

@HJohn “Obviously, terrorists are far worse than lawyers, it’s not even a contest”

Primo Levi was a terrorist – he was an Italian citizen who fought against the Italian govt. The people who ordered him put on a train to Auschwitz were judges and lawyers.

M Potter • July 3, 2013 2:35 PM

This is all about mutual trust. I am a law-abiding citizen and always have been, but why should I trust a policeman or a government that doesn’t trust me? While a little bit of surveillance in public places is a good thing (thinking of cops on the beat), all of this secret and surreptitious surveillance of every electronic communication and every movement (thinking of car automated license plate readers) does nothing for my trust of the politicians and government that permit or require it.

Phillip Birmingham • July 3, 2013 2:40 PM

Jeff — most modern RF equipment operates on the superheterodyne principle, where an incoming signal is mixed with the output of a local oscillator to produce a signal of known frequency for amplification (it’s easier to design a well-behaved amplifier if it only needs to handle a narrow bandwidth.)

In theory, and often in practice, this local oscillator can be detected. This is how police can detect radar detectors in places where they are illegal, for example.

Miramon • July 3, 2013 3:25 PM

They use to search the Internet.

I can see the fnords! Or should that be the (redacteds)?

name.withheld.for.obvious.reasons • July 3, 2013 3:48 PM

I believe a more pro-active privacy protest be initiated now. Borrowing from one idea on this blog is to create a stenographic image with the contents of the classified documents contain therein. Then post messages to gmail, yahoo, bing, aol, and apple and to USENET groups, public FTP sites and anywhere else public sites offer storage. Oh yeah, and make sure you pass it on to your friends on Facebook. This could produce 100’s of millions copies of these documents. The spillage would become unavoidable. All DoD systems would require wiping. I believe it is time to release a research paper describing Know-FARE. There has to balance struck even if it requires direct action. Our system of representative democracy has not just failed us, it is attacking its citizenry and thus the sovereign.

Daniel • July 3, 2013 3:56 PM

This is part of an endless war between introverts and extroverts with the latter being inherently distrusting of the former and vice versa. Once upon a time, I believed that mutual trust between these two camps was possible but I no longer believe it is possible because these two psychological viewpoints find their origin in two basic but opposed survival strategies.

Figureitout • July 3, 2013 4:36 PM

why should I trust a policeman or a government that doesn’t trust me?
–Check out The Asshole by J. Van Maanen. He makes a point that since a lot of police work is paperwork and driving around; maybe they pursue instances of criminal behavior in an overly ambitious manner to feel like they are “doing real police work”.

The “asshole” is the person that the police can take out pent up anger that other criminals or elites can merely shrug off their shoulders and get away with murder.

jdbertron • July 3, 2013 6:02 PM

The 4th amendment doesn’t make any difference between ordinary criminal evasions and privacy protests because it cannot be up to the government to decide which it is.

Its intent is to define what the government can’t do to you, no matter how vague or restrictive its makes the laws. If it made any distinction, it could easily be bypassed.

MikeA • July 3, 2013 6:11 PM

@nobodyspecial:

Especially since – given the way government operate – it will probably be marked “secret surveillance device: property of NSA” and a serial number.

Oddly enough, when SEO and OSS provided Italian partisans with wheel-bombs for trains (activated by a sudden drop in light, like going into a tunnel), said bombs were marked (IIRC) as official train-movement monitors and not to be removed under authority of Homeland Security (Translated into German as Geheime Staatspolizei, but same concept)

I suppose the downside would be lone-wolf resistance fighters who might remove them for exactly that reason.

Jack • July 3, 2013 6:31 PM

@HJohn

Not really disagreeing with you, but this is one of the more hard moral problems out there you are addressing. Did Hitler, Hoover, Stalin — did these people think they were the good guys? Do North Korean cops think they are the good guys? Saudi Arabian moral police?

The mafia?

Or is it just that they have so thoroughly debased themselves with the illogic of lies that good has become bad for them and bad good?

“I think an important observation isn’t that the police are bad people here. They’re trying to do their jobs, believe in what they do, and usually (and often correctly) view themselves as the good guys. After all, most of them are sincerely trying to do the right thing.”

North Korean cops… Gestapo… KGB… and countless other countries today and of days past…

“It is also designed to protect us against good people who do the wrong things, often thinking they are doing the right thing. ”

North Korean cops… Gestapo… KGB… and countless other countries today and of days past…

19th and 20th century Europe and America… the policing systems were far more corrupt then they are today.

It took an enormous amount of work and brave sacrifice by a great many people to make the system legitimate.

EH • July 3, 2013 6:33 PM

How are people who evade surveillance different than government actors who evade legally-mandated oversight? Should they both be equally presumed to be criminals, or at least suspicious?

NobodySpecial • July 3, 2013 6:54 PM

@MikeA – that’s brilliant !
If your enemy is sufficiently bureaucratic, obedient and prepared to do anything if there is a quality procedure – there is no limit to the fun you can have.

name.withheld.for.obvious.reasons • July 3, 2013 7:50 PM

I need to share this quote from Stevens in dissent (uh oh, justices need to be under surveillanc–they are dissenters) concerning the Padillo case and referenced in the 2012 MUA. No one is taking congress, executive, or courts to task for the blatant abuse of power under the AUMF. This by definition, authority to use military force IS NOT the equivalent to a declaration of war. ALL OF OUR POLITCAL OPERATIVES ARE OPERATING UNDER THE AUTHORITY OF MILITARY RULE. Allowing the executive to wield power using an instrument that is not defined in constitutional law is in and of itself unconstitutional and illegal.

HAPPY FOURTH OF JULY – That’s right NSA, for history my IP address is 0xdo36dead

name.withheld.for.obvious.reasons • July 3, 2013 7:53 PM

Stevens’ quote

…remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny

Figureitout • July 4, 2013 1:58 AM

Funny, my grandma used to burn her garbage simply b/c trash removal services didn’t come to her (it’s called poverty); she wasn’t trying to avoid surveillance, she used to work for X10 or some “secret” military facility in Tennessee (where she got breast cancer) and eventually was in a lawsuit to pay for the cancer she got. I asked her if she’d tell me what she did and she replied, “NOPE”; probably not much though lol.

Crofter • July 4, 2013 3:29 AM

@EH: One difference between an individual avoiding surveillance and a government actor evading oversight is that the government actor is employed by the public (or by the dictator, depending on the country) and required to work a certain way. I expect my employer to watch at least some of what I do at work, but my home life is a different story.

Figureitout • July 4, 2013 3:47 AM

but my home life is a different story
Crofter
–Aww, you’re so cute. Certainly the gov’t doesn’t employ surveillance in your home b/c your a gov’t worker and they trust you. I mean, it’s not like they have the capability to surveill the whole world and all…at least w/ some degree of competence.

Rich • July 4, 2013 5:40 AM

A true privacy protester pays in cash in Sacagawea coins; paper money has serial numbers. (How long until we see big-box cashiers feed bills through scanner-equipped [cough] conterfeit detectors [/cough]?)

Robin Eriksson • July 4, 2013 5:46 AM

@ Burt

Simple solution:

  1. Localbitcoins.com
  2. Banktransfer to bitcoindealer.
  3. Profit!

And if you are really paranoid about tracking on the internet.

1a. Withdraw cash
1b. Cash in refundable empty bottles at your local supermarket.
2. Localbitcoins.com
3. Arrange face to face meeting with your local bitcoin dealer
4. Profit!

Anyone up for taking bets on whether the official excuse from Visa and Mastercard for banning VPN providers will be ‘think of the children’?

Natanael L • July 4, 2013 6:51 AM

The Swedish payment processor Payson just had to block payments to several Swedish VPN/proxy services due to pressure from Mastercard and Visa.

Anybody’s got a guess on how this will play out?

bob • July 4, 2013 8:43 AM

@Jeff

For the reasons expounded above, I generally find it safest to assume that “all receivers are transmitters”.

HJohn • July 4, 2013 10:38 AM

@Jack

I think we are in agreement. There are both good and bad people, and both can do bad things thinking they are doing the right thing. Hitler was obviously bad, as were the Nazi’s, who probably thought they were good.

So, my post was not so much about the obviously bad. It was more about the otherwise decent who need boundaries. Not so much because they are bad, but because they are human.

A cop who says “what’s the problem if you have nothing to hide” is not necessarily a bad person, he may be a good person who has good intentions. The problem is not so much in the micro, i.e. with one individual policeman, but in the macro… all of us would lose liberty if collectively the police were able to do WhateverItTakes(TM).

Jack • July 4, 2013 11:18 AM

On the article:

I think the article is a good start, but that the author needs to do more research. That research would also be best performed if it includes actually living out the role.

Criticism wise, three things stand out to me.

One, is that taking privacy moves though one is not a criminal is by any means necessarily a “protest”. It may just be smart. The concept that the State (or other Nations who might surveil you) are all one person and a very trustworthy person at that is great — if you buy into the “Uncle Sam” or “Big Brother” type of thinking.

Two, the poster, unfortunately, does not consider all the other nations out there. Because “it happens in Saudi Arabia” or even “North Korea” does not mean it has zero bearing in thought here.

Or because it happened forty years ago under a Hoover.

Three, too many fictional examples, too little real world experience.

Reality is, where I see guys who are law abiding citizens “covering their ass”, they are technical specialists in computer security, they are VIP, they are religious, they are political, or they are at the very least informed on the very true reality of police states. Which can be said to be the case for much more of the world’s population then not.

But, there is also the very basic human concept of privacy in terms of intimacy. This, at a physical, non-metaphoric layer is as simple of an observation to make as to note: people do not want to walk around naked. They have areas of their body they especially try to keep covered.

You do not want to let everyone know your deeper self. That is not something people just jump into, anyway. It requires a long, building relationship. It involves highly complex, contextual based language.

Many of these privacy violations are simply common sense which can be observed intellectually by turning the tables on the parties. An intellectual practice everyone should be routinely engaged in. The golden rule is an universal rule across societies, and stepping back to say, “Would you like this done to you” is a very trivial intellectual matter to perform.

It is one thing which is every person’s personal responsibility to perform, but many clearly do not. Violation of this means you are hypocritical, which is condemnable by every moral system — because it is your own, personal moral system.

Jack • July 4, 2013 12:44 PM

@HJohn

If everyone who had access to these systems had hearts of saints & angels, my remaining problem with these systems would simply be, “what about the future”.

Ignorance is a remaining flaw in people with even the best of hearts. A cop in North Korea could have a flawless heart, but he is still in a deep state of ignorance because of his circumstances. His laws and his society were not formed and are not maintained by people like himself.

At best, he could simply skirt the rules here and there, perhaps saving lives or foregoing harsh punishments for trivial “offenses”. He might not be able to stomach torture or murder, but because of the system he still might have to be a part of that.

If everyone had good hearts like him, then society would invariably change. The rules would change to accommodate this.

Because the people making the rules would understand where those rules are flawed.

Such a process could not be overnight.

Education is a time consuming process requiring the supercomputer that is society.

The rule makers would have to first find those flaws and figure out how to fix them. A deeply flawed, ignorant society means there is an enormous amount of work to perform.

You are probably not talking about this, however, and more talking about exceptional conditions. Not everyone is Batman. Putting on the garb, having access to the tools, does not do anything to the heart.

And there are other exceptional cases: I perfectly trust some of my friends. If they surveilled me or others, I know they would be trustworthy in doing so. But, if this was systematic and allowed for everyone — this would not be good. So, there has to be laws against that and laws which are enforced.

It is not about “plausible deniability”. It is about keeping things illegal which should remain illegal as an organizational practice.

However, all of this is mandated on the basis of the factor of the human condition beyond mere ignorance. The problem is there are plenty of people who might be said to be soulless or nearly so. Hard hearts, bad people who live among everyone else.

Call them sociopaths, or whatever you want, they do not have good hearts and have little to no capacity for empathy.

name.withheld.for.obvious.reasons • July 4, 2013 1:55 PM

Here is a text-based insert rotation cypher using plain text that
represents a stenographic extract from PPD-20.

AS Bi Cg Di Ef FD Gi Hc Ia Jn Kt L MC No On Ps Qe Rq Su Te
Un Vc We Xs Y: Z AL Bo Cs Ds Eo Ff G Hl Ii Jf Ke L, M Ns
Oi Pg Qn Ri Sf Ti Uc Va Wn Xt Y

Pass it on…

Oh, to decode, the remove the sequenced ASCII data (1, i+3) and the whitespace
delimiter. Add it to the signature of your e-mail.

Dirk Praet • July 4, 2013 7:33 PM

The police tend to think that those who evade surveillance are criminals.

Perhaps in a police state, but in a free and democratic society, they have no legal basis to do so. Last time I checked, our legal system says that a person is presumed innocent until found guilty. When police come knocking at your door, you can let them in voluntarily or you have the right to not let them in unless they have a warrant. To obtain a warrant, they require probable cause.

In theory, it should not be any different in the digital world as it is in the physical world. Much of what Snowden has revealed however seems to indicate that for all practical purposes it isn’t. Systems of mass surveilance have been put in place, unknown to the public, but with approval of all three branches of the government. They are being justified under secretive interpretations of the law with secret courts issuing secret orders executed by secretive agencies and with questionable oversight, to say the least.

It stands to reason that therefor it’s not just criminals who seek to evade surveillance, but just as well ordinary, law-abiding citizens who feel that secret surveillance and data mining on a massive scale by governments and corporations alike not only is an unacceptable invasion of their privacy but also that it has no place in a democratic society.

My point however is that no one who for this reason seeks to evade surveillance can be accused of suspicious behaviour because there simply is no legal basis to do so. Evading surveillance in itself is not a crime. If a LEA or TLA suspects any wrongdoing behind it, it’s up to them to establish probable cause for further investigation. Reasonable suspicion under most democratic constitutions is just not enough, and in the meanwhile the person under scrutiny should be assumed innocent until proven otherwise. If this is not, or no longer the case, you’re living in a police state and you have every reason to evade surveillance wherever and whenever you can.

h4x • July 4, 2013 8:51 PM

I seem to recall the EFF recommending you clearly leave your security and data erasing policies lying around for investigators should they raid your place because during court trials prosecutors try to slam you with “obsctruction of justice” and “evidence tampering” simply for erasing your hard drive, or using any kind of cryptography to secure your traffic from eavesdropping.

If your data deletion policy indicates otherwise they can’t slap you with these kinds of bogus extra charges.

Jack • July 4, 2013 8:59 PM

@Dirk Praet

Very well said.

…

“Systems of mass surveilance have been put in place, unknown to the public, but with approval of all three branches of the government. They are being justified under secretive interpretations of the law with secret courts issuing secret orders executed by secretive agencies and with questionable oversight, to say the least.”

I think, that people are in shock, because of this. That many have suspected this was already the case (or known) does not make it better.

This is not something people want to believe, and unfortunately, a lot of people are deeply practiced in believing just what they want to believe.

They want to believe that “all of this has good safeguards and is perfectly reasonable”. But, wanting to believe that does not make it true.

onearmedspartan • July 5, 2013 7:26 AM

I’m sure when Google announced Glass, the govmt was licking their chops. I feel technology makes surveillance easier and evasion not necessarily more difficult, but behind the curve. While there are some factors consumers can use to protect their privacy (i.e. opt-out, anonymous proxies, etc.) it requires the consumer to be knowledged in these tools and they still don’t provide adequate privacy.

Probable cause means nothing to police. They can come up with a probable cause faster than you can say improbable reasoning.

Bruce, congrats on your election to the EFF board. The organization will benefit greatly from your work.

GS • July 5, 2013 12:28 PM

A good article. I think it points out one reason for wanting privacy that’s often tragically overlooked, because overlooking it creates it’s own self-fulfilling prophecy on both sides.

If the reason for being uncooperative is that, for whatever legitimate reason, you do not trust the government organization, or feel their handling of personal information is simply not up to parr (both being very reasonable ways of thinking), falsely accusing your discussion partner is probably the worst you can do as police officer. Simply said, the worries are dramatically confirmed by a combination of incorrect conclusions and intimidation. From the other side, the intimidation will make most people nervous, which in turn is perceived as being suspicious…

Gweihir • July 5, 2013 4:29 PM

@Jeff:

Theoretically, I think it is possible. GPS typically uses some kind of ceramic resonator antenna. This antenna design should give off somewhat distorted weak echos of the GPS signals. I doubt however that this is practical, as GPS signals are very weak indeed.

I think the “GPS detector” is basically an urban myth that stems from most people not understanding how GPS works.

On the other hand, a “tracking device” will send what it tracks in some way, and that can be detected. A smart design would become active only rarely and then send a short bursts. It could also (if it is cell-pone technology) only become active, when it sees a lot of other on-the-air activity that it can safely blend into.

Bugsniffer • July 6, 2013 4:12 AM

@Gweihir:
@Jeff:

A general bug detector will detect a GPS bug as well as it will detect a cell phone, an audio bug, a wireless router or a computer. This is because they work by detecting the IF signal from the LNBDC and CPU clock, so they will detect digital electronic devices, even if they don’t contain a radio receiver or transmitter.

Also bear in mind a GPS tracking bug has to include a transponder to report it’s position back to some monitoring station to provide realtime tracking (some have to be collected and downloaded).

An effective bug detector can be as simple as a guitar coil pickup wired to a diode mixer and an amplifier (those toy pocket guitar amps work well for this). This has the advantage that it also picks up magnetic field perturbation which is more difficult to shield than EH radiation. Simple deduction tells you any electronic device that you didn’t put there and don’t recognise is a bug. This type of bug detector is less effective against bugs hidden within your own electronic devices as they will be masked by the signal emitted by the device itself.

Autolykos • July 10, 2013 8:39 AM

@name.withheld.for.obvious.reasons:
As the type of attacks you describe rely on “hacking the system” (i.e. using detailed knowledge about it and attacking specific vulnerabilities), they are by their very nature impossible to analyze in papers or share among a large group of people without rendering them ineffective. There’s no substitute for thinking by yourself.

@Daniel:
That actually makes quite a lot of sense. For quite some time I feel like I’m caught in some kind of “Cold Civil War” with no clear front line to be drawn, people from the same nation (and claiming to act in the same interest) on both sides, and with overt hostilities kept to a low level while preparing for the worst.
Your observation seems to explain pretty well what ideals are shaping the front lines (and allow a quick identification of who’s on your side).

@MikeA:
Yup, blind trust in authority is a serious weakness in any system and easily exploited. It is also one most authority figures seem to be blind to (no surprise there…).
It’s also a recurring concept in the “Illuminatus!” Trilogy (with the Bavarian Fire Drill and the Midget’s various exploits).

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