The most important technology public policy issue of our time

Since the election, I've written repeatedly about the intersection of IT and public policy. But while I've covered multiple important subjects, I've barely touched on the most important of all: Privacy and liberty.

Issues of privacy and liberty take at least five forms:

  • Censorship
  • Admissible evidence in court
  • Admissible evidence in investigations (not exactly the same thing)
  • The consequences of damaging information leaks from the government to the private sector
  • Potential chill on useful technologies (e.g., electronic health records) caused by any of the other four kinds of issue

Taken together, that amounts to much of the Bill of Rights – or other countries' equivalents -- plus a whole lot of life-saving technology on the side. I.e., it's more than huge.

When I thought about those a couple of years ago, I came up with four pillars of liberty in an information age. These are legal principles, which I hope you will not only agree with, but also advocate with the utmost of vigor:

  • Reading and writing should be unrestricted, with only the narrowest of exceptions. Almost all forms of censorship are wrongful and dangerous. And while it may not be possible to win every battle about pictures, videos, and the like, there's no reason to tolerate the slightest censorship when what's being censored is simply words.
  • State of mind” evidence inferred from – for example – logs of search or surfing behavior should be inadmissible in legal proceedings, investigations, and hiring decisions. Whether it's your interest in Islam, pornography, or the untraceable disposal of corpses, what you look into shouldn't get you into trouble. Yes, there are a few cases where forgoing such tools is regrettable. But the slippery-slope dangers are far too great to make relying on them worth the risk and cost. The Petrick case is a dangerous precedent.
  • All uses of data that are not explicitly permitted to government must be forbidden. Given how many gray areas get created by technological advancement, a catch-all rule like this seems crucial. Analogies to the Ninth and Tenth Amendments are not coincidental.
  • All government programs (with only the narrowest of security exceptions) that use data should be disclosed. Even the narrow security exceptions should be subject to separation-of-powers oversight. David Brin and the Dutch government both have some good ideas along those lines.

In support of these, I have two other ringing recommendations. These pose systems design challenges, which I hope you'll participate in:

  • Security technology and procedures around data in government's custody should be superb. The government will have vast amounts of data; it mustn't leak. HIPAA (privacy rules the US government imposes on the health care industry) isn't the worst model to start from.
  • There should be audit trails to help enforce the other rules. That's a tough systems-engineering problem. But it needs to be tackled.

My focus is on the use of information, rather than its mere collection, for two main reasons. First, I regard liberty-preserving battles about the collection of information to in many cases be lost causes. We really can't stop the government from tapping the information floating around cyberspace. Heck,we can't even really stop Google. (Bill Thompson offers some thoughts as to just how far that goes, based on the recent Google Flu Trends project.) And in the United States, the courts have proved reluctant to be too expansive in their reading of the Fourth Amendment. Second, I think that regulating use actually suffices. Look again at the Bill of Rights. On a first reading, it seems that the Fourth and Fifth Amendments prevent the government from getting certain kinds of information. It can't look inside our houses, and it can't make us answer questions ... wrong! Actually, the courts can compel you to testify on any subject they choose; if you refuse to answer, you can go to jail for contempt of court. But they can only compel you if you are given immunity, so that you can't be convicted of the crimes the testimony reveals. I.e., the government can get the information it wants; it just can't use that information to harm you. (Fourth Amendment rights are a little murkier; if the government finagles its way into your house for any reasons, there are still actively litigated questions as to what kinds of information it can use that it may find there.)I have a bit of an audience on these subjects. (Hey, you're reading this, right?) But I need all the help I can get. Please join me in raising awareness. Blog yourself. Send email to those who might have influence. Or – and this one's really easy – just go to the suggestion page at www.change.gov and help draw the incoming Administration's attention toward these crucial issues.

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