'Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion' by Elizabeth E. Joh in (2013) 55(4)
Arizona Law Review argues that
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.
Joh comments that -
some steps taken by individuals are so extreme or so expensive that they are unlikely to ever represent only a privacy protest. Just as the possession of burglar’s tools can point to little else but the likelihood of a past or planned crime, some actions have little non-criminal value. Expense is a factor. The fabrication of genetic information is likely prohibitively expensive enough to discourage widespread use by consumers, at least until costs decrease. Changing small details of one’s records on the internet may require modest expense and effort, but the creation of an entire virtual identity, accompanied by a real world creation of an alternate address, bank account, and the deliberate use of a credit card in several locations is likely only to be undertaken by someone who wishes not to be found under any circumstances. Undergoing identity-changing plastic surgery may only be elected by a criminal, but there are matters of degree. Asking a surgeon to graft skin from another part of the body to one’s fingertips is likely the act of a fugitive; applying superglue to one’s fingertips may not be.
If we set aside these extreme examples, there are numerous steps individuals take though they are engaged in no criminal activity to shield from the police. Although privacy protests should not suggest to the police that these individuals are necessarily behaving in criminally suspicious ways, they likely do in fact convey that meaning, since most of these actions are indistinguishable from steps criminals will take. .... What distinguishes privacy protests from the evasive steps taken by criminals are the intentions behind such protests. In addition, private protests have at least the potential to be socially useful. While a criminal’s motives are generally unsympathetic, a person engaged in a privacy protest may have motives that resonate with those who identify themselves as civil libertarians, critics of “big” government, and even anarchists, although the protester may not formally align herself with any particular group.
The motivations for some of these protests will be difficult to distinguish from one another because the perceived threats are themselves not easily identifiable. Some will evade perceived government surveillance less because they object to a single act of surveillance and more because the hundreds of pieces of data collected about them that provides, when assembled, a “digital dossier” about their lives. Complicating matters further is the fact that the data used by the police may be initially collected by private entities that sell and share information to other parties for a profit. Yet other individuals object to the growing presence of surveillance in their lives no matter what the source. The use of a disposable email address, in this case, might be an objection both to private corporations that track consumers as well as to the government.
Not all privacy protests represent a strike against technology. When a neighbor draws his blinds or unnecessarily burns his garbage, he is resisting surveillance. In some cases, privacy protests originate out of racial or ethnic tensions. Arab-Americans in Detroit or African-Americans in the South Bronx may engage in privacy protests because they feel police have intruded needlessly into the private lives of others in their communities, even if they have not been affected personally.
Yet what isn’t generally recognized is that these protests--whether from the digerati or community activists--are structurally similar. This has two consequences: first, that both types of protests should be treated similarly; and second, that these groups have a common interest that could spur collective action.
She argues that
The mental model that might have the most impact on privacy protests is one that assumes that “innocent people have nothing to hide.” The slogan adopted by the British government to promote its CCTV surveillance camera network expresses the same sentiment: “If you’ve got nothing to hide, you’ve got nothing to fear.” This worldview assumes that all those who evade, block, or protest government surveillance in other ways are hiding evidence of criminal wrongdoing. Consider again the controversial stop and frisk policies of the N.Y.P.D. In 2011, just over half of the stops conducted by these police were justified on the observation of “furtive movement,” (as opposed to, for instance, fitting a known description or carrying a suspicious object). Leaked documents from the National Security Agency in 2013 revealed that the use of encryption tools alone raised red flags warranting heightened government attention. The pervasiveness of this narrative, widely accepted by the general public as well as the police, when compounded by the deference accorded rather vague articulations police are permitted to provide for stops of individuals, means that privacy protests can be easily classified with criminal acts.
Moreover, to the extent that the police may interpret privacy protests as deliberate challenges to police authority, this may further encourage the police to investigate when no criminal wrongdoing is present. Sociologists have repeatedly demonstrated that perceived disrespect for the police is an important--indeed perhaps the primary--factor in determining the degree to which police interfere with an individual’s liberty. In this sense, then, the privacy protestor might present the worse sort of affront to the police: someone who appears to have something to hide and is proud of it.
As with all types of police errors that result in innocent persons being stopped or investigated by the police, there are significant social costs that extend beyond individual embarrassment, discomfort, and wasted time. Large numbers of erroneous and seemingly unjustified police stops and arrests can lead to the reduction of public trust in the police. This effect is hardly symbolic, for an erosion of trust in the police can result in greater noncompliance with the law, as well as refusals to cooperate when the police seek witnesses and volunteered information. ....
Privacy protests don’t affect all forms of police investigation. They will not, for instance, greatly affect traditional investigative techniques that target a specific person or group of people based on previously gathered intelligence. When the police are investigating a known suspect regarding a homicide, for example, those who engage in privacy protests are not likely to arouse police suspicion.
Where privacy protests do matter, however, are in cases where police have neither prior intelligence nor a known target. Instead, the police start out with a violation and look for evidence and criminals. The targets are as yet unknown, because the police are “trolling” or “fishing” for suspects. In such instances, the police have an offense or a group of offenses they are interested in investigating, and seek patterns of suspicious activity that might identify potential suspects.
Police efforts to uncover terrorist activity exemplify these open ended investigations. Unlike many other kinds of crimes, terrorism is an offense that places special emphasis on preventive policing. Added to these pressures is the highly secretive nature of terrorist planning. In response, police rely primarily on two options: covert policing, which requires the penetration of closed criminal groups by undercover police, and the identification of patterns of suspicious activity. In this latter approach, the police are looking for behaviors and activities that suggest the planning or execution of terrorism plots, without necessarily having any particular person or activities in mind.
Privacy protests are also relevant as technologies expand surveillance capacities to look for crimes of all kinds. This “bureaucratic surveillance” makes possible the gathering of great quantities of data that can be sifted through multiple times for multiple purposes. The ubiquity of such surveillance changes the very nature of policing, as New York’s Court of Appeals recently observed. Technological innovations--in that case, a GPS unit--permit the “new technological perception of the world” by the police that is equivalent to the addition of “millions of additional police officers” in every city.
