For the right to personal privacy to survive in America in this digital age, courts must be meticulous in applying longstanding privacy protections to new technology. This did not happen in an unfortunate ruling [ http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf ] last month by a three-judge panel of the United States Court of Appeals for the Sixth Circuit.
The case concerned a drug conviction based on information about the defendant’s location that the government acquired from a cellphone he carried on a three-day road trip in a motor home. The data, apparently obtained with a phone company’s help, led to a warrantless search of the motor home and the seizure of incriminating evidence.
The majority opinion held that there was no constitutional violation of the defendant’s rights because he “did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cellphone.”
The panel drew a distinction between its ruling and a ruling by the Supreme Court last January in United States v. Jones, which held that the placement of a hidden device on a suspect’s car without a valid warrant violated the Fourth Amendment. The three-judge panel said that its case, in contrast, did not involve physical trespass on the suspect’s private property. The judges also asserted that the tracking in the case before them was not sufficiently “comprehensive” to be “unreasonable for Fourth Amendment purposes” and trigger the need for a warrant — even though the police tracked the defendant’s every move for three days, hardly a negligible time period.
The Jones case suggests that the Supreme Court’s future direction may be more protective of privacy in cases involving new and potentially invasive technologies. In two concurring opinions in that case, a majority of justices agreed that “longer-term” GPS monitoring impinged on expectations of privacy.
As Justice Sonia Sotomayor stressed in her concurrence, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” If anything, tracking someone using cellphone GPS capabilities is even more invasive than following someone with a GPS device attached to a car since it allows for 24/7 coverage. Most people carry their phones wherever they go, including into their homes.
The circuit court panel majority concluded that because the defendant’s phone emitted information that could be picked up by law enforcement agents, he had no reasonable expectation of privacy and thus no warrant was needed to conduct the surveillance. This was at odds with yet another Supreme Court ruling, in 2001, involving a thermal-imaging device aimed at a private home from a public street.
Carrying a cellphone should not obliterate privacy rights or the Fourth Amendment’s warrant requirement. The full Sixth Circuit should grant a pending request for a rehearing and reverse the panel’s damaging ruling.
Rent-to-Own Laptops Secretly Photographed Users Having Sex, FTC Says
Photo: Magic Madzik/Flickr
By David Kravets 09.25.126:11 PM
Seven rent-to-own companies and a software maker are settling charges with the Federal Trade Commission that rental computers illegally used spyware that took “pictures of children, individuals not fully clothed, and couples engaged in sexual activities.”
As per the course, the FTC slapped the hand of DesignerWare of North East Pennsylvania and the rent-to-own companies. The settlement [ http://www.ftc.gov/opa/2012/09/designware.shtm ], announced Tuesday, only requires them to halt using their spy tools, which has been employed on as many as 420,000 rentals.
The software, known as Detective Mode, didn’t just secretly turn on webcams. It “can log the keystrokes of the computer user, take screen shots of the computer user’s activities on the computer, and photograph anyone within view of the computer’s webcam. Detective Mode secretly gathers this information and transmits it to DesignerWare, who then transmits it to the rent-to-own store from which the computer was rented, unbeknownst to the individual using the computer,” according to the complaint [ http://www.ftc.gov/os/caselist/1123151/designerware/120925designerwarecmpt.pdf ].
Under the settlement, the companies can still use tracking software on their rental computers, so long as they advise renters, the FTC said. The companies include Aspen Way Enterprises Inc.; Watershed Development Corp.; Showplace Inc., doing business as Showplace Rent-to-Own; J.A.G. Rents LLC, doing business as ColorTyme; Red Zone Inc., doing business as ColorTyme; B. Stamper Enterprises Inc., doing business as Premier Rental Purchase; and C.A.L.M. Ventures Inc., doing business as Premier Rental Purchase.
Claudia Bourne Farrell, an FTC spokeswoman, said in a telephone interview the agency does not have jurisdiction when it comes to criminal offenses. She said the agency, when it believes criminal conduct may have occurred, will forward that to the appropriate agencies. But the agency, she said, has a policy against disclosing when it has done so.
“We don’t have criminal authority. We only have civil,” she said.
The companies were not fined, she said, because “we don’t have the authority to impose civil fines for the first violation of the FTC Act.”
The software installed on the laptops also enables the companies to automatically disable computers of renters behind on monthly payments and to secretly track the computers’ whereabouts.
Even more evil, the rental stores would force a fake popup for software registration on computers they rented. The window would not go away, the FTC said, until the computer user typed their contact information, including address, phone number and e-mail. The rent-to-own store would use that information “to try to collect money” from renters in arrears, the FTC said.
In all, private data obtained through the spyware included user names and passwords for e-mail accounts, social media websites and financial institutions. Also snagged were Social Security numbers, medical records, private e-mails to doctors, bank and credit card statements and webcam pictures of children, partially undressed individuals, and intimate activities at home, the FTC said.
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