Computer Ethics, Fall 2011

• Chapter 2 on privacy
  

Electronic Communications Privacy Act, 1986

1. The provider exception (except  that a provider .. shall not utilize service-observing or random monitoring except for ...quality control checks)
   
2. The ordinary course of business exception
   
3. The consent exception. (c)

Generally, most employer monitoring falls under one of these. Note that the "provider" exception is a specific feature of ECPA; ownership of the hardware does not create a general right of access and in particular ownership of a telephone system does not create a right to eavesdrop.

Phone surveillance in the workplace
Keystroke monitoring
Location monitoring

Do computers empower workers, or shackle them?

While we're on the topic of ECPA, there is:
Title I, covering electronic communications in transit (USC Title18 Chapter 119)
       no interception: http://www.law.cornell.edu/uscode/18/usc_sec_18_00002511----000-.html
       evidence exclusion: http://www.law.cornell.edu/uscode/18/usc_sec_18_00002515----000-.html

Title II, the Stored Communications Act. (USC Title 18 Chapter 121)

    email stored 180 days or less: gov't needs a warrant
    more than 180 days: warrant, subpoena, or court order
    See http://www.law.cornell.edu/uscode/18/usc_sec_18_00002703----000-.html
        §2703 (a): less than 180 days (b): more than 180 days

Here's that part from §2703(b) preserved for posterity:

§2703(b) has much less stringent restrictions. Debate continues as to the appropriate category for email messages.

ECPA amended the Wiretap Act of 1968.

US v Councilman

Bradford Councilman ran a website that listed rare books; he also gave email accounts (actually aliases) to booksellers within the domain "interloc.com" (this might be comparable to amazon.com giving email aliases to their associated private sellers, or even ebay). However, Councilman examined these dealer emails in order to develop a competitive strategy (these emails would show what rare books were in demand, for example; apparently the real target was amazon.com).

In the case US v Councilman, the government prosecuted Councilman for interception of email in violation of the EPCA/Wiretap Act. Councilman argued that he only examined the email as it was stored on servers temporarily while being routed to its final destination, and that accessing stored documents did not constitute "interception" for the purposes of the Wiretap Act. The District Court and a 3-judge panel of the Appellate Court agreed with Councilman's theory. In 2005, however, the First Circuit court ruled en banc that, yes, EPCA in-transit rules did apply to data stored temporarily on disks (filesystems) as well.

Note that the issue here is not government access to electronic communications.

Note also that the status of email as it sits in storage remains contentious.

Email differs technically from voice in that as email is forwarded to its destination the full message sits briefly on various intermediate servers. Phone servers store at most a few bits of a voice stream at a time. The First Circuit ruled very definitively that, despite the appearance that email was being stored, the practical understanding was that it was in transit, and as such was protected. This is a good example of the courts rejecting a "technical" argument for the "big picture"; note, however, that the first two courts to hear the case agreed with the technical argument.

The full First Circuit decision is at http://www.ca1.uscourts.gov/pdf.opinions/03-1383EB-01A.pdf

This was a case involving government compliance with EPCA. Steven Warshak ran a mail-order operation promoting "Enzyte" for "natural male enhancement." There were several allegations of fraud: that the physician testimonials for the product were entirely fictitious, that many customers were enrolled a monthly "auto-ship" program without notification, and that the merchant bank accounts were manipulated to make credit-card complaints seem to be a smaller percentage than there actually were. Eventually the government investigated and then prosecuted.

The government got a subpoena order from a US Magistrate asking for his email records. The emails were turned over to him.

Eventually Warshak found out about this. As the emails were incriminating, Warshak argued that the US needed a warrant, which is much stronger than a subpoena.In 2006 he filed a claim seeking a declaratory judgement that a warrant and not a subpoena was needed. (A declaratory judgement is a court ruling on a procedural matter where there is no actual action ordered.)

• subpoena v search warrant: latter is stronger
  
• warrant for unopened email, subpoena for opened?? (stored-document doctrine)
  
• Subpoenas give you a few days to comply. Warrants do not.
  
• Subpoenas may or may not be issued by a court! But for search warrants must be court-issued
  
• Search warrants are supposed to describe precisely what is being sought.
  
• Phone calls: need warrant (supreme court Katz v US case, 1967) [Patriot Act created some new classes of search warrant, but the basic principle remained.]

Are subpoena rules for email overly broad?
US argument: users of ISPs don't have a reasonable expectation of privacy.

This is clear (post-Smyth) for employer-provided email, though there's no reason to suppose loss of privacy extends to the government.

But what about commercial email? Here's an imaginary Yahoo Terms-of-service by Mark Rasch, from securityfocus.com/columnists/456/3 :

Because a customer acknowledges that Yahoo! has unlimited access to her e-mail, and because she consents to Yahoo! disclosing her e-mail in response to legal process, compelled disclosure of e-mail from a Yahoo! account does not violate the Fourth Amendment.

The point here is that because Yahoo has access to your email, the government thinks that all your email should be treated just like any other commercial records. You have no "expectation of privacy".

The government argued that this case was like the 1976 US v Miller case, where bank records were found NOT to be protected. However, bank records are pretty clearly different from email. For one thing, under the "transaction" theory of privacy, bank records belong to the bank, as well as to you. Email does not belong, in any sense, to your ISP.

But there's also the issue that ISPs do not just route your email messages, they also store them. Sometimes indefinitely, even after you have read them.

Stored Communications Act, part of ECPA
    email stored 180 days or less: gov't needs a warrant
    more than 180 days: warrant, subpoena, or court order
Warshak was arguing that the government should need a warrant for ANY of his email.

At the district court level, Warshak won in his declaratory-judgement quest. (Quote from full 6th circuit decision)

In June 2007 a 3-judge panel of 6th circuit appellate court [Judges Boyce Martin, Martha Daughtry, William Schwarzer (District Court judge sitting in)] again ruled for Warshak. The decision was far-reaching, not specific to the facts at hand; the court issued an injunction forbidding the US government from obtaining emails without a warrant. From the ruling (at www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf):

October 2007: 6th circuit agrees to en banc review (whole court)

July 2008: full court ruled that the case was not "ripe": the broad question was not ready to be addressed. The injunction was lifted.

The ripeness doctrine serves to "avoid[] . . . premature adjudication" of legal questions and to prevent courts from "entangling themselves in abstract" debates that may turn out differently in different settings.

That makes sense, but the full court also said some strange things about expectations of privacy:

(See Eugene Volokh, volokh.com/posts/1176832897.shtml) Traditionally, the courts consider 4th-amendment cases only in concrete contexts and not in the abstract. To be sure, the case as a whole was still at the declaratory-judgement stage; the full court may have felt that the email situation should wait to be decided at the actual trial. But the comments above about the subjective nature of expectations of privacy, and the idea that the terms of service might play a role in this expectation, are unsettling.

While this appeal was going on the US continued to prosecute its criminal case against Warshak. He was convicted in February 2008.

In December 2010, a three-judge panel of the 6th circuit ruled (http://www.ca6.uscourts.gov/opinions.pdf/10a0377p-06.pdf) that emails were in fact protected under the fourth amendment, and that to the extend the SCA (above) held otherwise (for emails held longer than 180 days), the SCA was unconstitutional. This time the judges were Damon Keith, Danny Boggs, and David McKeague. Alas for Warshak, the court also held that the emails were nonetheless admissible as evidence, because the government had acted in good faith (believing the SCA). The court based its protection of email on the principle that wiretapping of telephones has long been regarded as a fourth-amendment search (that is, requiring a warrant).

As for an ISP's ability to read emails, the court wrote

The case could still be appealed to the full 6th circuit or to the Supreme Court.

In June 2008 the Ninth Circuit ruled in favor of fourth-amendment protection for both text messages and emails, in Quon v Arch Wireless.

Email has been around for ~20 years. Why has this taken so long?

It may not be done yet. In January 2011 the California Supreme Court ruled that, when someone is arrested at a traffic stop and the police search the vehicle, they may extend the search to any and all contents of any smartphones they find.The police rationale here was to tie a suspect to a drug deal an hour before, through SMS messages.

SMS messages ("text messages")

1. They are often transmitted as cleartext.

2. The government is likely to argue that the 4th amendment does not apply.

3. They are not 'wire communications', and thus escape the Wiretap Act rule that illegally intercepted messages cannot be used against you.

4. Your local police are not likely to be intercepting SMS messages, but it's always a risk. The ECPA does require a court order.

More at https://ssd.eff.org/book/export/html/23

Online Privacy and Advertising

New trends in advertising

• The Princess Bride
• 50 First Dates
• 10 Things I Hate About You
• Sex and the City

gmail

All gmail is read at google. Just not necessarily by people. Does this matter?

Note that gmail has access to the full text of your email itself. This means google knows more about you than any regular web advertiser (except those doing full keystroke capture, which I'm still not sure actually occurs).

What if Bradford Councilman, of the email-scanning scheme, had had automated software read the email, and this software then updated Councilman's book-pricing lists? Is this different from what gmail does, or the same?

What if google searched gmail for inside stock tips, and then invested?

What could google do with the information it learns about you? What could they do beyond learning of your areas of interest?

• to detect terrorism
  
• to detect criminal activity
  
• to detect hacking targeting the ISP
  
• to detect protests about lack of "net neutrality", and slow down your service as retribution?

RFID

Original reading: Simson Garfinkel, Adopting Fair Information Practices to Low Cost RFID Systems.

Overall survey of active v passive rfid tags. Why they might remain attached to purchased items. RFID tags in identification cards

Differences between RFID and bar codes. In one sense, both types work by being "illuminated" by a source of electromagnetic radiation. In practice, most ordinary materials are not opaque to RFID frequencies, and more information can be stored.

creeping incursions: when do we take notice? Is there a feeling that this "only applies to stores"? Are there any immediate social consequences? Is there a technological solution?

How do we respond to real threats to our privacy? People care about SSNs now; why is that?

Are RFID tags a huge invasion of privacy, touching on our "real personal space", or are they the next PC/cellphone/voip/calculator that will revolutionize daily life for the better by allowing computers to interact with our physical world?

Imagine if all your clothing displays where you bought it: "Hello. My underwear comes from Wal*Mart"
(Well, actually, no; RFID tags don't take well to laundering.)

RFID tags on expensive goods, signaling that I have them: iPods, cameras, electronics

Loyola RFID cards

RFID v barcodes: unique id for each item, not each type readable remotely without your consent

"Kill" function

Active and passive tags

Are there ways to make us feel better about RFID??

Garfinkel's proposed RFID Bill of Rights:

Users of RFID systems and purchasers of products containing RFID tags have:

1. The right to know if a product contains an RFID tag.
2. The right to have embedded RFID tags removed, deactivated, or destroyed when a product is purchased.
3. The right to first class RFID alternatives: consumers should not lose other rights (e.g. the right to return a product or to travel on a particular road) if they decide to opt-out of RIFD or exercise an RFID tag’s “kill” feature.
4. The right to know what information is stored inside their RFID tags. If this information is incorrect, there must be a means to correct or amend it.
5. The right to know when, where and why an RFID tag is being read.

What about #3 and I-Pass? And cellphones?

Serious applications:

• Inventory management
  
• Store checkout
  
• Access control (eg of people into Lewis Tower, or of cars into a lot)
  
• Personnel tracking (knowing where people are)
  
• Computer interface to real world
  
• Tracking exposure to viral illness
  
• embedded in currency as anti-counterfeiting measure [!]
  
• Getting electronic devices to detect each other, and interoperate; compare with BlueTooth
•  Self-guided museum tours (where you wear the tag)
  
• Smart refrigerator: keeps track of expiration dates
  
• refrigerator + TV: you get grocery ads on TV for things currently in your fridge.
  
• Smart laundry
  
• Where are my keys? (useful in theory, but perhaps not so practical with passive tags)
  
• Where is my copy of War and Peace
  
• consumer recalls
  
• compliance monitoring for medications
  
• theft reduction

Technological elite: those with access to simple RFID readers? Sort of like those with technical understanding of how networks work?

2003 boycott against Benetton over RFID-tagged clothing: see boycottbenetton.com: "I'd rather go naked" (who, btw, do you think is maintaining their site? This page is getting old!)

Some specific reasons for Benetton's actions:

• Their stores carry only their own brands, so they can guarantee 100% vendor compliance
• Returns are a chronic problem in retail clothing.
• Allows rapid re-stocking of clothing taken for trying on but not purchased
  
• Products are expensive enough to warrant a then-$0.25-and-more chip
  

Is the real issue a perception of control? See Guenther & Spiekermann Sept 2005 CACM article, p 73 [not assigned as reading]. The authors developed two models for control of RFID information on tagged consumer goods:

• User-control. User implements, in effect, a password
  
• Agent model: you delegate access decisions to a software package that understands your privacy preferences
  

Is there a "killer app" for RFID? Smart refrigerators don't seem to be it.

I-Pass is maybe a candidate, despite privacy issues (police-related) Speedpass (wave-and-go credit card) is another example. And cell phones do allow us to be tracked and do function as RFID devices. But these are all "high-power" RFID, not passive tags.

What about existing anti-theft tags? They are subject to some of the same misuses.

Papers: Bruce Eckfeldt: focuses on benefits RFID can bring. Airplane luggage, security [?], casinos, museum visitors

Does RFID really matter? When would rfid matter?

RFID:

tracking people within a fixed zone, eg tracking within a store:

• Gillette razor customers photographed (is RFID even necessary?)
  
• cosmetics customers photographed
  
• magazines/books

Entry/exit tracking

profiling people
cell-phone tracking: when can this be done?

Are there implicit inducements to waive privacy? If disabling the RFID tag means having to take products to the "kill" counter and wait in line, or losing warranty/return privileges, is that really a form of pressure to get us to leave the tag alone?

RFID shopping carts in stores: scan your card and you get targeted ads as you shop. From nocards.org:

"The other way it's useful is that if I have your shopping habits and I know in a category, for instance, that you're a loyal customer of Coca Cola, let's say, then basically, when I advertise Coca Cola to you the discount's going to be different than if I know that you're a ... somebody that's price sensitive." Fujitsu representative Vernon Slack explaining how his company's "smart cart" operates.

RFID MTA hack? We'll come to this later, under "hacking". But see http://cs.luc.edu/pld/ethics/charlie_defcon.pdf (especially pages 41, 49, and 51) and (more mundane) http://cs.luc.edu/pld/ethics/mifare-classic.pdf.

RFID and card-skimming

Card-skimming is the practice of reading information on magnetic-stripe cards (usually ATM cards) by attaching a secondary reader over the primary card slot. Readers can be purchased (illegally) to blend in with almost any model of ATM. Together with a hidden camera to capture your PIN number, these systems can be used to max out the withdrawals of dozens or even hundreds of accounts each day.

At first sight, RFID seems like it would make this situation even worse: your card (but not PIN) can be skimmed while in your wallet. However, RFID can easily be coupled with "smart card" technology: having a chip on the card that can do public-key encryption and digital signing. (Interfacing such a chip with magnetic-stripe readers is tricky.) With such a smart card, and appropriate challenge-response infrastructure, skimming is useless.

Passports

See also http://getyouhome.gov

US passports have had RFID chips embedded for some years now. In the article at http://news.cnet.com/New-RFID-travel-cards-could-pose-privacy-threat/2100-1028_3-6062574.html, it is stated that

Homeland Security has said, in a government procurement notice posted in September [2005?], that "read ranges shall extend to a minimum of 25 feet" in RFID-equipped identification cards used for border crossings. For people crossing on a bus, the proposal says, "the solution must sense up to 55 tokens."

The notice, unearthed by an anti-RFID advocacy group, also specifies: "The government requires that IDs be read under circumstances that include the device being carried in a pocket, purse, wallet, in traveler's clothes or elsewhere on the person of the traveler....The traveler should not have to do anything to prepare the device to be read, or to present the device for reading--i.e., passive and automatic use."

The article also talks, though, about how passports (as opposed to the PASS cards usable for returning from Canada or Mexico) now have RFID-resistant "antiskimming material" in the front (and back?) cover, making the chip difficult to read when the passport is closed.

Currently, passport covers do provide moderately effective shielding. Furthermore, the data stream is encrypted, and cannot be read without the possession of appropriate keys (although it may still identify the passport bearer as a US citizen). An article in the December 2009 Communications of the ACM by Ramos et al suggested that the most effective attack would be to:

• eavesdrop on passport transactions at the customs counter
• decode the session later
• decrypt the session (potentially possible, though this is not certain)
  
• use the data to create a physical duplicate passport
• use the duplicate passport to obtain a duplicate social security card for the original passport owner.
  

SSN

see http://cpsr.org/issues/privacy/ssn-faq/

Privacy Act of 1974: govt entities can't require its use unless:

• federal law specifically allows its use (as it does for tax info, social security, drivers licenses)
  
• use was required prior to 1/1/1975 (Virginia required SSN for voter registration under second exception; overturned in ???)

SSN and:

• phone/electric/other accounts
  
• health insurance
  
• student records [!]

There had been a trend against using the SSN for student records; some students complained that no federal law authorized its collection for student records and therefore state schools could not require it. Alas, while this idea was gaining traction Congress introduced the Hope education tax credits and now it is required that students give their SSN to colleges. Even if they don't intend to claim the credit.

What exactly is identity theft?

National Identity Card: What are the real issues? tracking? matching between databases? Identity "theft"?

Starting on page 85, there's a good section in Baase on stolen data; see especially the table of incidents on page 87. What should be done about this? Should we focus on:

• punishing companies that are the source of the stolen data?
• requiring data leaks be publicized immediately, allowing affected consumers to monitor their own situation?
• providing everyone with free information on their own credit reports, to detect misuse?
  
• technological fixes for making data more secure?
• making stolen data less useful for bad guys; ie making it harder to profit with online data alone? 

Old-fashioned examples of government privacy issues, now kind of quaint:

Matching: Should the government be able to do data mining on their databases? In particular, should they be able to compare DBs for:

• taxes & welfare
  
• taxes & social security
  
• bank records & welfare?
  
• student aid and draft registration?
  
• tax & immigration 

• criminal databases; problem of how corrections are made
  
• library records - threatened by Patriot I
  
• records of incoming and outgoing phone calls
  
• PATRIOT act: bank records, ISP logs are all things gov't can now demand without a warrant
  
• What are our "effects"???

Government and e-privacy:

• matching between government databases
  
• eavesdropping on internet communications
  
• eavesdropping on the phone (including VOIP)
  
• obtaining commercial records (bank, credit, grocery)
• getting search-engine records (google)
  
• transponders: I-Pass, cellphone, RFID
  
• facial recognition
  
• databases of suspicions (Terrorist Information Agency)

What if FACIAL RECOGNITION were to really take off? What would be the consequences? There are all those cameras already.

Most arguments today against facial recognition are based on the idea that there are too many false positives. What if that stopped being the case?

What about camera evidence of running lights or speeding?

Commercial privacy:

E-bay privacy - Ebay has (or used to have) a policy of automatically opening up their records on any buyer/seller to any police department, without subpoena or warrant.

This one is quite remarkable. What do you think? Is this ethical?

Medical Privacy- the elephant in the room?

• employment
  
• insurance availability
  
• social (ED, SSRI, therapy, any serious illness)

HIPAA (Health Insurance Portability & Accountability Act) has had a decidedly privacy-positive effect here.

Odlyzko and price discrimination

basic supply/demand: one draws curves with price on the horizontal axis, and quantity on the vertical. The supply curve is increasing; the higher the price the greater the supply. The demand curve, on the other hand, decreases with increasing price. However, these are for aggregates.

Now suppose you set price P, and user X has threshold P_x.  The demand curve decreases as you raise P because fewer X's are willing to buy. Specifically:

• P <= P_x: user X buys it
  
• P > P_x: user X does not buy it

But what you really want is to charge user X the price P_x.

Example: Alice & Bob each want a report. Alice will pay €1100, bob will pay €600. You will only do it for €1500. If you charge Alice €1000 and Bob €500, both think they are getting a deal.

But is this FAIR to Alice?

In one sense, absolutely yes.

But what would Alice say when she finds out Bob paid half, for the same thing?

Possible ways to improve the perception of value:

• give it to Alice earlier give her bonus tracks, too
  
• delete some features from Bob's copy, or disable them

What do computers have to do with this?

Airline pricing: horrendously complicated, to try to maximize revenue for each seat.

Online stores certainly could present different pricing models to different consumers. Does this happen? I have never seen any evidence of it, beyond recognizing different broad classes of consumers. Perhaps it takes the form of discounts for favorite customers, but that's a limited form of price discrimination.

Dell: different prices to business versus education This is the same thing, though the education discount is not nearly as steep now.

Academic journal subscriptions and price discrimination: Libraries pay as much as 10 times for some journals as individuals!

two roundtrip tickets including weekends can be less than one (this example is ~ 2005; all flights are round-trips)   

If you buy the second and third tickets and throw out the returns, you save almost $300! Airlines have actually claimed that if you don't fly your return leg, they can charge you extra.

The issue is not at all specific to online shopping; it applies to normal stores as well. Sometimes it goes by the name "versioning": selling slightly different versions to different market segments, some at premium prices.

What about grocery stores?

CASPIAN: http://nocards.org

They're against grocery discount cards, also known as club cards or surveillance cards. A big part of Caspian's argument appears to be that the cards don't really save you money; that is, the stores immediately raise prices.

customer-specific pricing: http://nocards.org/overview

One recent customer-specific-pricing strategy: scan your card at a kiosk to get special discounts. nocards.org/news/index.shtml#seg3
Jewel's "avenu" program is exactly this: http://www.jewelosco.com/savings/avenu.jsp.

One clear goal within the industry is to offer the deepest discounts to those who are less likely to try the product anyway. In many cases, this means offering discounts to shoppers who are known to be price-sensitive, and not to others.

Clearly, the cards let stores know who is brand-sensitive and who is price-sensitive.

Loyal Skippy peanutbutter customers would be unlikely to get Skippy discounts, unless as part of a rewards strategy. They might qualify for Jif discounts.

Classic price discrimination means charging MORE to your regular customers, to whom your product is WORTH more, and giving the coupons to those who are more price-sensitive. Well, maybe the price-sensitive shoppers would get coupons for rice, beans, and peanut butter, while the price-insensitive shoppers would get coupons to imported chocolates, fine wines, and other high-margin items.

"shopper surveillance cards": 1. Allow price discrimination: giving coupons etc to the price-sensitive only. There may be other ways to use this; cf Avenu at Jewel

The idea used to be that you, the consumer, could shop around, compare goods and prices, and make a smart choice. But now the reverse is also true: The vendor looks at its consumer base, gathers information, and decides whether you are worth pleasing, or whether it can profit from your loyalty and habits. -- Joseph Turow, Univ of Pennsylvania

2. segmentation (nocards.com/overview) What about arranging the store to cater to the products purchased by the top 30% of customers (in terms of profitability)? Caspian case: candy aisle was reduced, although it's a good seller, because top 30% preferred baby products. Is this really enough to make the cards worth it to the stores, though?

Using a card anonymously doesn't help here, as long as you keep using the same card!

Using checkout data alone isn't enough, if "the groceries" are bought once a week but high-margin items are bought on smaller trips.

One of the most significant examples of price discrimination is college tuition. The real tuition equals the list price minus your school scholarship. While many scholarships are outside of the control of the school, the reality is that schools charge wealthier families more for the same education.

Privacy wrap-up

Free Speech

    Congress shall make no law ... abridging the freedom of speech, or of the press;

Right off the bat note the implicit distinction between "speech" and "the press": blogging wasn't foreseen by the Founding Fathers!

The courts have held that Congress can abridge "offensive" speech. For example:

• whatever offends the government; examples p 149 (China, France, Georgia) (note the JURISDICTION PROBLEM implicit here)
  
• sexual material that is indecent: basis for several US laws; generally these regulations apply to keeping material from minors.
  
• sexual material that is obscene, and thus can be banned for everyone.
  
• child pornography (banned for other reasons than that it is sexually explicit)
  
• threats, "hate speech"
  
• information on bombs, guns, suicide, methamphetamines, routers, and dieting (ok, not "conventional" dieting, but anorexia & bulemia)
  
• seditious speech
  
• stock touting
  
•  regulated speech
  • elections
  • wine selling
  • investment discussion
• spam
  
• source code
  
• DRM circumvention (DMCA)
  

• Printed media (newspapers, magazines, books, leaflets)
• Broadcast media (TV & radio)
• common carriers (telephony, postal system, ISPs)

• author liability
• publisher liability
  
• distributor liability