What Rat You Out Smartphone Surveillance Do You Support?

At law school, I learned about the slippery slope of changing fact patterns that typically trigger a change in analysis and which side of a case I support. Sometimes the process is called a parade of horribles as the circumstances grow ever more problematic.  Such a continuum runs for wireless technologies essential for carriers to provide service, but also able to engage in unprecedented and largely unregulated surveillance, tracking, mining, and money making.

​Readers of this blog understand that cellular radio carriers need to monitor continuously the location of every subscriber with their handsets on.  Such tracking provides the basis for knowing how to route an inbound call to a subscriber and when to provide service (what used to be called dialtone) to a subscriber seeking to make an outbound call. The slope becomes both slippery and increasingly horrible as tracking technologies offer new profit centers for carriers, smartphone manufacturers, platform intermediaries, content providers, social networks, data analytical firms, marketers, advertisers and more.  These stakeholders typically do not pay consumers for access to data about wireless subscribers’ locations, conversations, texts, messages, app uses, etc.

At best, the quid pro quo involves an exchange of something “free,” but not without cost to the consumer.  At worse, consumers receive nothing, may not even know about what takes place and may suffer from the intrusion of privacy, revealed preferences, and analysis that tilts a market transaction in favor of the firm having acquired and analyzed surveillance data.

I hope that readers neither accept the notion that broadband users have no reasonable expectation of privacy, nor do they have anything to fear about data mining.  The miners repeatedly emphasize how they take pains to anonymize the data they collect.  Yet, we should know by now how easy it is for data analytical firms and marketers to identify individuals and know more about us than what the data protection promises claim to safeguard.

It is quite easy for data mining to rat out someone, because they know where we are and how we use our smartphones.  The domestic terrorists/patriots (depending on your politics) should have known that an operational smartphone in their possession regularly records their location, the destination of their calls and texts, and what apps were used.  This is evidenceavailable to law enforcement authorities.  In most instances, the carrier and the manufacturer of the smartphone willingly cooperate with authorities, often without expecting a search warrant. The slippery slope starts in the reasonable law enforcement/national security zone, but quickly moves into territory most of us do not support. 

Just who is doing the rating out?

If you, like most, support the use of wireless metadata, call records, etc. for law enforcement, what do you think about congressional or state legislatures using these surveillance technologies for investigations?  This data can identify who aided and abetted the crimes committed by others on January 6, 2021.  Some people, not physically located at the Capitol, may have actively conspired to execute the carnage.  

What rat you out surveillance technologies violate a reasonable expectation of privacy, and the right to be left alone?  Appreciate the irony that while we might agonize about whether and how these concepts support or block congressional investigations, data miners typically have no constraints, because the terms of service grant a free reign.