Friday, December 12, 2014

Why national borders will survive longer than personal privacy

(Before I start this post, I wanted to mention something. My posts often contain links to information, either previous posts written by myself, or things written by others. This particular post has a lot of the latter category, including a Louis Gray tweet of a Valleywag article, a list that Tad Donaghe wrote on Medium, and a number of articles from sources such as CNN and CNET. If a particular topic interests you, I strongly encourage you to follow the link and explore it further. And of course, the trackbacks to this blog post don't hurt me either...)

Even if you don't personally own a smartphone, it's quite possible that many of your movements are being captured. Maybe your city has installed cameras that are watching you. Maybe your friend performed a "check in" and mentioned that you were at the same location. Maybe you've filed a required legal document that is now part of the online public record. Maybe someone has hacked into some private information and revealed secret things about you.

Because of this, many people are saying that the whole concept of privacy is a thing of the past.

Personal example: I had resisted installing Waze on my smartphone for several reasons, one of which was that I didn't necessarily want to have my every move tracked in a server. Then one day, I discovered that Google Now was able to inform me exactly where I had parked my car. (It hypothesized, based upon smartphone movements, the time when I got out of my fast-moving automobile and started slowly walking away from it.) Despite my supposed care, my location was being tracked pretty well anyway. When you combine (insert B-- D--- buzzword here) from a multitude of sources, it's possible to figure out what you're doing.

But technology doesn't just impact privacy. It also impacts national laws.

Let's use export laws as an example. Country A, for national reasons (security, economics, whatever) decides to restrict exports of a product to Country B. However, it's a lot easier to break national export laws today than it was a few hundred years ago.

In the 1700s, if someone in Philadelphia wanted to flout national (British) export law, he'd have to get a hold of a ship, journey to a territory outside of British rule, and then smuggle the goods back to Philadelphia. This took a lot of time and a lot of money.

Today, that same person could sit in his (or her) home and flout the law much more easily, perhaps requiring something no more complex than an anonymizer. The whole process might take mere seconds, and you wouldn't get seasick in the process.

So it's possible for individuals to flout the laws of nations. The nations, however, are fighting back. Spain has passed content laws that are forcing Google to shut down Google Noticias in Spain. Swedish laws have brought the Pirate Bay offline. Russia is enacting laws that are forcing Google (again) to take its engineers out of Russia.

The starry-eyed among us may predict that, in the same way that privacy is going away, the whole idea of national laws will go away. Companies such as Google and Microsoft will eventually be able to do business without regard to borders or those pesky national laws. (Except, of course, when we like the national laws in question.)

But the starry-eyed forget that the same technology that can be used to flout national laws can also be used to enforce them. Sure, it's possible to get around the Great Firewall of China, but you'll get in trouble if you do, as this October story demonstrates.

Wang Long has been held in custody in Longgang district for “picking quarrels and provoking trouble”, his former lawyer Fan Biaowen told the South China Morning Post....

Wang reposted at least six photos from Twitter and Facebook on Weibo showing thousands of Occupy Central supporters and students protesting against Beijing’s decision to set strict limits on the 2017 Hong Kong elections....

At the same time, Microsoft (headquartered in the United States) is fighting a United States government request to provide access to data stored on an Irish server. Microsoft's argument is that the U.S. request is a violation of Irish law, and Microsoft asks how the U.S. would react if the shoe were on the other foot:

Imagine this scenario. Officers of the local Stadtpolizei investigating a suspected leak to the press descend on Deutsche Bank headquarters in Frankfurt, Germany. They serve a warrant to seize a bundle of private letters that a New York Times reporter is storing in a safe deposit box at a Deutsche Bank USA branch in Manhattan. The bank complies by ordering the New York branch manager to open the reporter’s box with a master key, rummage through it, and fax the private letters to the Stadtpolizei....

The U.S. Secretary of State fumes: “We are outraged by the decision to bypass existing formal procedures that the European Union and the United States have agreed on for bilateral cooperation, and to embark instead on extraterritorial law enforcement activity on American soil in violation of international law and our own privacy laws.” Germany’s Foreign Minister responds: “We did not conduct an extraterritorial search – in fact we didn’t search anything at all. No German officer ever set foot in the United States. The Stadtpolizei merely ordered a German company to produce its own business records, which were in its own possession, custody, and control. The American reporter’s privacy interests were fully protected, because the Stadtpolizei secured a warrant from a neutral magistrate.”

Regardless of the outcome of the Google, Pirate Bay, Wang Long, or Microsoft cases, it is clear that national borders - and national laws that conflict with the laws of other nations - will be around for a very long time.
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