Jonesing for a Privacy Mandate, Getting a Technology Fix - Doctrine to Follow

While the Jones Court held unanimously that the Government’s use of a GPS device to track Antoine Jones’s vehicle for twenty-eight days was a Fourth Amendment search, the Justices disagreed on the facts and rationale supporting the holding. Beyond the very narrow trespass-based search theory regulating the Government’s attachment of a GPS device to Jones’s vehicle with the intent to gather information, the majority opinion does nothing to constrain government use of other tracking technologies, including cell phones, which merely involve the transmission of electronic signals without physical trespass. While the concurring opinions endorse application of the Katz reasonable expectation of privacy test to instances of government use of tracking technologies that do not depend on physical trespass, they offer little in the way of clear, concrete guidance to lower courts that would seek to apply Katz in such cases. Taken as a whole, then, the Jones opinions leave us still “Jonesing” for a privacy mandate

A systematic review of patient reported factors associated with uptake and completion of cardiovascular lifestyle behaviour change

Background: Healthy lifestyles are an important facet of cardiovascular risk management. Unfortunately many individuals fail to engage with lifestyle change programmes. There are many factors that patients report as influencing their decisions about initiating lifestyle change. This is challenging for health care professionals who may lack the skills and time to address a broad range of barriers to lifestyle behaviour. Guidance on which factors to focus on during lifestyle consultations may assist healthcare professionals to hone their skills and knowledge leading to more productive patient interactions with ultimately better uptake of lifestyle behaviour change support. The aim of our study was to clarify which influences reported by patients predict uptake and completion of formal lifestyle change programmes. Methods: A systematic narrative review of quantitative observational studies reporting factors (influences) associated with uptake and completion of lifestyle behaviour change programmes. Quantitative observational studies involving patients at high risk of cardiovascular events were identified through electronic searching and screened against pre-defined selection criteria. Factors were extracted and organised into an existing qualitative framework. Results: 374 factors were extracted from 32 studies. Factors most consistently associated with uptake of lifestyle change related to support from family and friends, transport and other costs, and beliefs about the causes of illness and lifestyle change. Depression and anxiety also appear to influence uptake as well as completion. Many factors show inconsistent patterns with respect to uptake and completion of lifestyle change programmes. Conclusion: There are a small number of factors that consistently appear to influence uptake and completion of cardiovascular lifestyle behaviour change. These factors could be considered during patient consultations to promote a tailored approach to decision making about the most suitable type and level lifestyle behaviour change support

You Can\u27t Always Get What You Want: How Will Law Enforcement Get What it Needs in a Post-CALEA, Cybersecurity-Centric Encryption Era?

In recent years, many technology companies have enabled encryption by default in their products, thereby burdening law enforcement efforts to intercept communications content or access data stored on smartphones by traditional means. Even before such encryption technologies were widely used, however, the Federal Bureau of Investigation (“FBI”) claimed its surveillance capabilities were “Going Dark” due to the adoption by consumers of new IP-based communication technologies, many of which are not subject to any surveillance-enabling obligations under the Communications Assistance for Law Enforcement Act (“CALEA”). The heightened tension produced by the introduction of encryption by default into an environment where terrorism has magnified the need for efficient law enforcement access (surveillance) supported by a newly-expanded CALEA framework is often framed as a contest between privacy and security

Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data that Congress Could Enact

The use of location information by law enforcement agencies is common and becoming more so as technological improvements enable collection of more accurate, precise location data. The legal mystery surrounding the proper law enforcement access standard for prospective location data remains unsolved. This mystery, along with conflicting rulings over the appropriate law enforcement access standards for both prospective and historical location data, has created a messy, inconsistent legal landscape where even judges in the same district may require law enforcement to meet different standards to compel location data. As courts struggle with these intertwined technology, privacy, and legal issues, some judges are expressing concern over the scope of the harms, from specific and personal to general and social, presented by unfettered government collection and use of location data and how to respond to them. Judges have sought to communicate the scope and gravity of these concerns through direct references to Orwell’s dystopia in 1984, as well as suggestive allusions to the “panoptic effect” observed by Jeremy Bentham and his later interpreters like Michel Foucault. Some have gone on to suggest that privacy issues raised by law enforcement access to location data might be addressed more effectively by the legislature. This Article proposes a legislative model for law enforcement access standards and downstream privacy protections for location information. This proposal attempts to (1) articulate clear rules for courts to apply and law enforcement agents and industry to follow; and (2) strike a reasonable balance among the interests of law enforcement, privacy, and industry with the ultimate goal of improving the position of all concerned when measured against the current state of the law

A Lot More than a Pen Register, and Less than a Wiretap: What the Stingray Teaches Us About How Congress Should Approach the Reform of Law Enforcement Surveillance Authorities

In June 2013, through an unauthorized disclosure to the media by ex-NSA contractor Edward Snowden, the public learned that the NSA, since 2006, had been collecting nearly all domestic phone call detail records and other telephony metadata pursuant to a controversial, classified interpretation of Section 215 of the USA PATRIOT Act. Prior to the Snowden disclosure, the existence of this intelligence program had been kept secret from the general public, though some members of Congress knew both of its existence and of the statutory interpretation the government was using to justify the bulk collection. Unfortunately, the classified nature of the Section 215 metadata program prevented them from alerting the public directly, so they were left to convey their criticisms of the program directly to certain federal agencies as part of a non-public oversight process. The efficacy of an oversight regime burdened by such strict secrecy is now the subject of justifiably intense debate. In the context of that debate, this Article examines a very different surveillance technology — one that has been used by federal, state and local law enforcement agencies for more than two decades without invoking even the muted scrutiny Congress applied to the Section 215 metadata program. During that time, this technology has steadily and significantly expanded the government’s surveillance capabilities in a manner and to a degree to date largely unnoticed and unregulated. Indeed, it has never been explicitly authorized by Congress for law enforcement use. This technology, commonly called the StingRay, the most well-known brand name of a family of surveillance devices, enables the government, directly and in real-time, to intercept communications data and detailed location information of cellular phones — data that it would otherwise be unable to obtain without the assistance of a wireless carrier. Drawing from the lessons of the StingRay, this Article argues that if statutory authorities regulating law enforcement surveillance technologies and methods are to have any hope of keeping pace with technology, some formalized mechanism must be established through which complete, reliable and timely information about new government surveillance methods and technologies can be brought to the attention of Congress

Your Secret Stingray's No Secret Anymore: The Vanishing Government Monopoly over Cell Phone Surveillance and Its Impact on National Security and Consumer Privacy

In the early 1990s, off-the-shelf radio scanners allowed any snoop or criminal to eavesdrop on the calls of nearby cell phone users. These radio scanners could intercept calls due to a significant security vulnerability inherent in then widely used analog cellular phone networks: calls were not encrypted as they traveled over the air. In response to this problem, Congress, rather than exploring options for improving the security of cellular networks, merely outlawed the sale of new radio scanners capable of intercepting cellular signals, which did nothing to prevent the potential use of millions of existing interception-capable radio scanners. Now, nearly two decades after Congress passed legislation intended to protect analog phones from interception by radio scanners, we are rapidly approaching a future with a widespread interception threat to cellular communications very reminiscent of the one scanners posed in the 1990s, but with a much larger range of public and private actors with access to a much more powerful cellular interception technology that exploits security vulnerabilities in our digital cellular networks. This Article illustrates how cellular interception capabilities and technology have become, for better or worse, globalized and democratized, placing Americans’ cellular communications at risk of interception from foreign governments, criminals, the tabloid press and virtually anyone else with sufficient motive to capture cellular content in transmission. Notwithstanding this risk, US government agencies continue to treat practically everything about this cellular interception technology, as a closely guarded, necessarily secret “source and method,” shrouding the technical capabilities and limitations of the equipment from public discussion, even keeping its very name from public disclosure. This “source and method” argument, although questionable in its efficacy, is invoked to protect law enforcement agencies’ own use of this technology while allegedly preventing criminal suspects from learning how to evade surveillance. This Article argues that current policy makers should not follow the worn path of attempting to outlaw technology while ignoring, and thus perpetuating, the significant vulnerabilities in cellular communications networks on which it depends. Moreover, lawmakers must resist the reflexive temptation to elevate the sustainability of a particular surveillance technology over the need to curtail the general threat that technology poses to the security of cellular networks. Instead, with regard to this destabilizing, unmediated technology and its increasing general availability at decreasing prices, Congress and appropriate regulators should address these network vulnerabilities directly and thoroughly as part of the larger cyber security policy debates and solutions now under consideration. This Article concludes by offering the beginnings of a way forward for legislators to address digital cellular network vulnerabilities with a new sense of urgency appropriate to the current communications security environment