DANIEL VAUGHAN: Finding a privacy solution for the world of tomorrow

March 4, 2019

DANIEL VAUGHAN: Finding a privacy solution for the world of tomorrow

Imagine you’re driving on the interstate on a typical Monday, with traffic flowing around your car. Right now, it’s not uncommon for an AMBER Alert to go off on your phone while you’re driving, blaring a loud sound to tell you that a child is missing and flashing a warning banner on your screen telling you to look out for a car, person, and license plate number.

But that’s right now, already a change from the past, and in the future, you may not notice the alert at all — but your car may.

Reimagine the scenario, except this time, when the AMBER Alert goes off, either your car or your phone gets the alert, and then the alert systems in your car tell the cameras installed on your vehicle to look for the suspect’s car. The alarm goes out to every car driving on the interstate, and suddenly, the AMBER Alert has thousands, if not millions, of cameras scanning the interstate system for the missing child and car.

If those cameras do spot the suspect’s vehicle, they could send a message back to authorities much faster than humans could. Or, if we’re in the world of driverless cars, the government could order the specific vehicle they’re searching for to stop by telling the manufacturer to send a “stop” command directly to the vehicle. In the future of driverless cars, the vehicles could even synchronize to provider faster and clearer driving lanes for emergency personnel.

But in any of these situations, you may never notice that any of these things happened. The system could do it all without your input or notice. Technology and car companies are the ones answering to the government’s demands, and you’re the object the state uses to track down the bad guys.

The technology to do these things isn’t the stuff of fiction, it exists right now. Back during the recent romaine lettuce scare, Walmart deployed blockchain technology to track individual produce items from farm to the point it goes out the door in a shopping bag. Their hope is that instead of having to issue a blanket ban on all contaminated food items, they could identify which specific vegetables had that problem and only remove those from the shelves.

Walmart ran a test pilot before the romaine lettuce scare, and found astounding results, according to the New York Times:

Walmart conducted an experiment trying to trace the source of sliced mangos. It took seven days for Walmart employees to locate the farm in Mexico that grew the fruit. With the blockchain software developed by IBM, the mangos could be tracked in a matter of seconds, according to Walmart.

This same technology is being tested by the Centers for Disease Control and Prevention (CDC) in pilot programs to see how well they can track the entire country’s health data at once.

The broad question these technology innovations raise is one of privacy and data protection. When the Constitution was first ratified, there were broad protections for citizens: they could not be forced to quarter troops (Third Amendment), they could not be subject to searches and seizures without due process (Fourth Amendment), and their private property was protected (Fifth Amendment). Moreover, states couldn’t be commandeered by the federal government to do things they don’t want under the 10th Amendment.

In recent years, the Supreme Court has expanded Fourth Amendment protections in a ruling that determined that police need a warrant to place a GPS tracker on a suspect’s car. And the Supreme Court ruled in 2018 that citizens have a privacy interest in personal data stored on cell towers when police try to claim that information.

But these cases all involve state power of some kind, where government authority is targeting a person whose life or property is at stake through fines or imprisonment. And technology is advancing to the point where the amount of data in the world is incomprehensible.

Indeed, Supreme Court law has found, somewhat dubiously, that there is a “penumbra of privacy” in the Constitution as a whole that applies to the federal government. But the protections that case law provides aren’t reliable, and because they aren’t grounded in the text of the Constitution, they don’t offer many answers for how private companies are tracking their consumers with more leniency than their government counterparts.

Europe’s answer to this issue is the General Data Protection Regulation (GDPR). It is a grossly overcomplicated set of regulations that are more about creating a byzantine labyrinth of compliance paperwork for companies than it is addressing severe privacy concerns.

What we need to consider is a solution that provides an absolute right to privacy in the Constitution, instead of relying on judges to maintain current case law. There are arguments both for and against such an amendment, but we either need that or a statutory regime that protects consumers as we enter this new world.

The challenges aren’t fading, and as companies like Facebook and Google continually show they don’t have their consumers best interests at heart, we need a solution that provides protection to Americans without the bureaucratic labyrinth they have in Europe. Will we find one before it’s too late?

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.