I recently came across two different articles that both dealt with the increasing tracking of location data, and their contrast struck me as worthy of some discussion. The first was the revelation that the DEA has been utilizing license plate scanners to monitor car movements in furtherance of the “War on Drugs.” I’ve discussed this issue briefly in a previous post, but the basic idea is that our license plate is freely visible, public information, and the use of mass license plate tracking technology allows for the widespread collection of location data without violating with the Fourth Amendment (probably). If you can constitutionally look at one license plate without a warrant, you can constitutionally look at every license plate without a warrant. I’ll pause while you shudder.
The second was practically the inverse. The popular traffic app Waze allows for crowdsourcing of traffic information, which includes congestion, accidents, and police activity. Users of the Waze app are able to communicate the location of police officers in real time with a massive social network, essentially allowing for the opposite of the first issue: real time location data on every police officer. Naturally, the police have objected to the use of the app for this purpose, calling it a police stalker and claiming it represents a threat to officer safety. I’ll pause again, while you savor the irony.
I should start by noting that although both articles raise issues with location data, the arguments they proffer are quite different. In the police context, the argument is that the app presents a clear threat to public safety; both because police officers may be the target of attacks and the apparent lack of police officers may encourage crime. These are substantially different arguments from those raised on behalf of the citizenry, which tend more towards assertions of invasion of privacy, a right to freedom of movement without government monitoring, and the lack of transparency in the program. So while the issues are similar, one could reasonably reach different outcomes based on the differing circumstances.
Having said that, I can’t help but smirk at the reversal of fortune. Surveillance is rarely appreciated by the surveilled, and the police’s response to the tracking of their officers bears a striking resemblance to the public’s response when it was revealed that the NSA was tracking telephone metadata: outcry and backlash, probably more so than is warranted (pardon the pun). Personally, I’m in favor of both, with some reasonable restrictions.
License to Track
The first thing that comes to mind when I think about location data is Harry Potter. In the third book, Harry receives the “Marauder’s Map,” a magical map of his school that provides the location of every person within it, in real time. Put simply, it’s a mischief maker’s dream, and Harry put it to very good use (admittedly with the help of an invisibility cloak). After all, who wouldn’t savor the possibility of knowing where everyone else is at all times? Yet we shudder at the inverse, having everyone know where we were at all times. Thus is privacy: we cherish ours, we disregard others’.
Yet the location data tracking employed by the DEA is hardly a Marauder’s Map. It is limited to our cars, and really only applies to public movements. (I strongly suspect that they actively disregard cars that are located in or around the owners’ houses, purely to keep in line with Supreme Court jurisprudence.) And while this information is still not nothing, I think our sense of privacy in these movements is a fleeting remnant of a bygone era, one before the ubiquity of computers. The simple fact is that our public movements are just that: public. Our sense of privacy is derived purely from obscurity, from being lost in the crowd, something that technology is rapidly erasing. I plan on talking in depth about obscurity in a future post, but for now it should suffice to note that, legally, once information is not private, it is in effect public. And obscure information is not private.
While technology may be eliminating privacy by obscurity in a technical sense, it has had little impact on our lives in a practical sense. As I frequently point out, this information is being managed almost entirely by computers. It is only with computers that we may overcome the data problem that provides obscurity, and humans will still be limited by an inability to comprehend these massive data sets. Obscurity will largely remain, simply because no individual can begin to comprehend the amount of information that is being managed. Our individual movements, though trackable, will still be obscure, because they aren’t just tracking you, they are tracking everyone. The difference is that now our movements can be tracked and reviewed when there is a need. And while this certainly presents potential problems, these problems must be balanced against the benefits such a system presents.
My general position towards data collection and data tracking is that since they are not inherently harmful (assuming adequate transparency) and since any negative uses of data can be managed on a case by case basis, we should embrace these capabilities. Such a framework allows us to enjoy the benefits of Big Data while recognizing and managing the potential harms that such collection may entail. As with any technological development, we don’t halt progress because it has downsides; we manage the downsides. This approach also embraces what I think is the inevitable conclusion of modern life: these capabilities will eventually emerge, so it is best to embrace them early and properly manage them.
I actually think this inevitability can be seen partly in the other story, Waze. Social media has been slowly evolving into purely crowd-sourced information sharing, wherein trending news articles, videos, blogs, etc., are shared and upvoted into prominence. Twitter, Youtube, Reddit, these sites all rely on a form of crowd-sourced information sharing to identify and spread information with the broadest appeal. And while this information sharing was originally focused on news and media, it is beginning to expand into other facets of life.
The debate over Waze is ultimately just another iteration of a wider cultural phenomenon dubbed “sousveillance.” Sousveillance means literally “watching from below,” and is essentially the opposite of surveillance: rather than a single authority watching the citizenry, it is the citizenry watching the authority. Discussions of requiring police body-cameras, dash cameras, or even just the ubiquity of smartphone video recording are all examples of how the citizenry can use surveillance technologies to keep the government accountable. Through social media and crowdsourcing, sousveillance can imitate the ubiquity of government surveillance, but in reverse. And while Waze is primarily focused on sharing traffic data, its usage to monitor police officers is a form of sousveillance.
Can they even do that?
So the question remains, could the the government ban this type of app? From a Constitutional perspective, the issue is two-fold. There is arguably a distinction between a blanket restriction on individuals sharing the location of police officers (say, through Twitter or Facebook), which is almost certainly unconstitutional, and a restriction on the app that prohibits a specific function for identifying police. The government can’t stop you from telling your friends, but they might be able to stop Waze from making it too easy to do so. The latter is questionable, but not unthinkable. The more likely outcome would be that a sufficiently unfavorable app would be removed from the various marketplaces that distribute them. You may have a right to speak, but you don’t have a right to be heard, and the iTunes Store might stop offering the app if the police complain. This was the fate of the speed trap sharing app Trapster when it attempted to broaden its scope to include DUI-checkpoints. There was a public backlash, and it was removed from the iTunes Store until Nokia removed the functionality.
The fundamental problem that the police face in challenging Waze is the same one that citizens face challenging the DEA’s license plate tracking: a police officer’s location in public is public information. Uniformed police officers are among the most immediately recognizable individuals, and any person who sees a police officer has a First Amendment right to communicate that information to anyone they wish. This might be in the form of a Facebook post, a text, or indeed an app specifically designed for that purpose. Any attempt to restrict the communication of this truthful information would be an restriction on free speech. And so while it may not be encouraged, it’s unlikely to be stopped.
I should note as well, that although Waze theoretically presents the functionality to track police movements, the practical implementation of a such a system means that it will rarely work that way. I downloaded Waze after reading about it, and while it does some pretty cool things, it is by no means a constant feed of police locations. Part of it is surely my location, as Waze relies on user generated input, so a lack of users would make information sharing less robust. But that is also the fundamental downside: user generated input has a substantial time lag, and will tend to ignore minor details. I highly doubt every Waze user feels compelled to take out their phone and share every time they spot a police officer. And even if they did, this wouldn’t cover police movements when there were no other cars to see them. Unlike the DEA system, which is systematized through a network of cameras, Waze will always be an incomplete data set, and thus not provide constant information about police locations. As is often the case with decentralized systems, the lack of a coordinated structure prevents ubiquitous tracking.
The Not-So-Secret Police
So although Waze probably isn’t the police-tracking app the police suggest it could be, it raises the issues such an app would present. I actually don’t think police tracking would represent any real threat to police officers, despite their protests. This does not claim to offer individualized profiles for specific officers, so the potential for targeted attacks is quite low. Nor do I think broad scale violence against police officers would increase, mostly because finding police officers has never been the limiting factor in attacks on police. The claim that it might facilitate crime by suggesting where police officers aren’t has some merit, but this can be easily remedied by increased utilization of plain-clothes or otherwise undercover police officers, who would be theoretically hidden from such a system. There are certainly other problems, but overall I am unconvinced it represents a substantial problem.
Yet the potential for Big Data to backfire against police officers is a real problem. Much of police work has traditionally relied on some degree of surprise or secrecy, and massive informational awareness could completely remove this tool from the police’s toolbox. The DUI checkpoint app is a perfect example: catching drunk drivers would be severely hampered if the drunk drivers knew which streets to avoid (assuming, of course, they aren’t too drunk to check their app.) Facial recognition may hamper undercover work. “Random” inspections may become predictable. As we move towards an age where everyone knows everything about everyone else, surprise may be a convenience we can no longer rely upon, necessitating innovative approaches to old problems.
It’s worth remembering, though, that this information is already out there. Smart phones, smart cars, we have a “smart” version of pretty much everything, and those that we don’t we are probably working on, and almost all of them track location data. If you have location services on your smart phone, you can freak yourself out by going here. We are reaching a point where privacy is no longer focused on keeping other people from knowing about us, but instead about how we handle responding to the fact that they know.
Or if all else fails, you can move to a deserted island. Although that wont stop everyone from knowing that you are there.