Friday, December 18, 2009


From the ever terrific EDRI-gram, Italy: The Anopticon project - putting surveillance back in its place.
"Nowadays, CCTVs are the practical implementation of the "Panopticon", theorised in 1791 by Jeremy Bentham as the "ideal prison", one that keeps people in place by using their natural fear of being surveilled.
The Anopticon project is a reaction to the huge rise in CCTVs installations in Italian cities. Information on CCTVs - where they are, what they point at, which area is being surveilled - is collected by members of the project and put online, publicly accessible via the "Big Brother Viewer". The project has already concluded that a large part of CCTVs does not provide the "information notice" required by Legislative Decree 196/2003 (which implements the Data Protection Directive in Italy).
The project started in Venice, but it soon spread to other cities including Padova, Foggia, Urbino and Solero (Alessandria). More and more "anopticon groups" are born, to contribute to the Big Brother map. Anyone from anywhere can join in.
The Anopticon project has also launched the "Denounce illegal CCTVs" campaign: every surveillance device that does not respect Italian data protection law (including the need for an "information notice") will be signalled to the Italian Data Protection Authority, without excluding formal complaints for the more powerful and invasive surveillance systems such as the "Argos" and "Hydra" systems being implemented in Venice which are able to automatically track the movement of boats and people.
The Anopticon project - Big Brother Viewer"
Hmmm. Legislative Decree 196/2003? I wonder what the UK equivalent might be? I also see an opportunity for a Tony H. type mapping and consultation project here.

Thursday, December 17, 2009

Ohio Court: police need warrant for cell phone search

Here's an interesting development - according to the Washington Post the Ohio Supreme Court has held that police officers must obtain a warrant before scanning the contents of a suspect's mobile phone.
"The Ohio Supreme Court said Tuesday police officers must obtain a search warrant before scouring the contents of a suspect's cell phone, unless their safety is in danger.
The American Civil Liberties Union of Ohio described the ruling as a landmark case."
Landmark case definitely. I don't know of any others that have come to a similar conclusion and it was a close call with a 4 to 3 majority ruling according to the Ohio court's own website.
"(Dec. 15, 2009) The Supreme Court of Ohio ruled today that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.
The Court’s 4-3 majority decision, which reversed a ruling of the 2nd District Court of Appeals, was authored by Justice Judith Ann Lanzinger.
Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person.  The arresting officer put the cell phone in his pocket and placed Smith in a cruiser, then searched the scene for evidence. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent. They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number...
...United States v. Finley... held that a cell phone is similar to a closed container found on an arrestee’s person and therefore subject to search by an arresting officer without a warrant...
...United States v. Park, which held that a cell phone is not a “container” as that term is used in prior Fourth Amendment cases, and that a warrantless police search of data stored in a defendant’s cell phone was unconstitutional...
In today’s decision, Justice Lanzinger wrote: “Smith bases his challenge on the Fourth Amendment to the United States Constitution, which provides protection against unreasonable searches and seizures. It is well established that searches conducted without a warrant are per se unreasonable, subject to certain ‘jealously and carefully drawn’ exceptions.’  Jones v. United States (1958).  ... The exception that the state relies on is the search incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control. ... This exception ‘derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.’ Arizona v. Gant (2009). ... But when the interests in officer safety and evidence preservation are minimized, the court has held that this exception no longer applies.”....
In this case, Justice Lanzinger wrote, “The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of ‘closed container’ have traditionally been physical objects capable of holding other physical objects.  Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’ New York v. Belton (1981).”   ...
“Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” wrote Justice Lanzinger.  “Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”
“ ... We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. Because the state failed to show that either of these exceptions to the warrant requirement applied, the search of Smith’s cell phone was improper and the trial court was required to exclude from evidence the call records and phone numbers taken from the cell phone. We accordingly reverse the judgment of the court of appeals and remand to the trial court for proceedings consistent with this opinion.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor."
The dissenting opinions whilst accepting the notion of lots of private data on mobile phones nevertheless felt that the specific search at issue here "resembles police officers’ search of a traditional address book found on the person of an arrestee during a search incident to arrest", something which is allowable under the 4th amendment. Justice Cupp, dissenting said:
“The majority bases its broad holdings on its estimation of the possible capabilities of other cell phones and computers. But here only the address book and call records were admitted into evidence.  The issue of a more in-depth warrantless search of ‘data within a cell phone’ is not before us.  I would leave for another day, to a case that factually raises the issue directly, the question of whether police may perform more in-depth searches of information on cell phones that have capabilities akin to a computer.”
It is good to see a supreme court beginning to tackle such cases and getting a handle on a half decent analysis of new technologies. The full decision is available here.

Court bans Pystar's Apple clone sales permanently

From ComputerWorld:
"A federal judge yesterday officially banned Mac clone maker Psystar from selling computers with Apple's Leopard or Snow Leopard operating systems, effectively putting an end to a 17-month-old lawsuit...

The injunction, however, is more or less moot, as Psystar shut down its Mac clone business earlier this month when it struck a settlement deal with Apple that requires it to pay nearly $2.7 million in damages if it loses appeals to the next level."

Apologies for the formatting - I'm trying to post this through Internet Explorer, since I'm working at someone else's machine and IE and blogger don't seem to get along too well.

Tuesday, December 15, 2009

Solove on Privacy

Given the rash of articles on Google, Facebook and privacy this week, it would be a good time for anyone who really wants to understand the issue in the context of the information age to read some of Daniel Solove's work, in particular two terrific articles 'I've Got Nothing to Hide' and Other Misunderstandings of Privacy,  and A Taxonomy of Privacy and his books The Digital Person and Understanding Privacy.