Beyond Search & Seizure | Jeffrey Rosen | TEDxPhiladelphia

I want to tell you a story so it was

August 2011 and I was in London and I

was at a pub that looks a lot like this

one having a drink with a friend and

this guy comes up to me and says do you

want to buy some Charlie now I didn't

know what Charlie was but it sounded

very very bad so I said no charlie for

me be gone with you I will have no

charlie and then I wondered why had I

acted out in this preposterous and sort

of theatrical way and then I looked

across the street and I saw there was a

huge pole and mounted on it was a

surveillance camera that was planted

right at me and what I realized is that

I was acting out my innocence for the

camera now in the wake of the urban

spring when Baltimore and North Carolina

and cities across America have been

inflamed with police injustice

lots of african-american young men have

described the same experience of acting

out their innocence to the police a

feeling that they're guilty until they

prove their innocence and the phenomenon

that they experienced is now being

experienced by citizens of every

background across America as

technologies of ubiquitous surveillance

are threatening not only values of

privacy but also equal justice under law

and what I want to do this morning is

talk with you about four of these

technologies and what we can do about

them and those are ubiquitous

surveillance in public DNA surveillance

brain scans and targeted advertising

let's start with ubiquitous surveillance

in public imagine that it's I don't know

next year and President Obama goes on TV

and says citizens to protect the people

of America we are going to fly drones

across the land and these will surveil

you and they will be able to identify

wrongdoing so if these drones were

mounted and you know they're really not

that much bigger than the ones in the

picture then they could fix on anyone

say me follow me forward if the pictures

were backward they could archive they

could follow me backward if the pictures

were live streamed on Google then anyone

could follow anyone else 24/7 and you

would basically have the possibility of

reconstructing anyone's movements 24/7

for all time now imagine that the

president did this for our safety would

this violate the Fourth Amendment that's

the one that protects the right of the

people to be secure in our persons

houses papers and effects against

unreasonable searches and seizures well

at the time of the American Revolution

the framers of the Fourth Amendment had

one case in particular in mind when they

drafted those beautiful words and that

was the case of John Wilkes I want to

tell you about him because this is the

key to what the Fourth Amendment

originally meant John Wilkes was a

British dissenter he wrote a series of

anonymous pamphlets criticizing Lord

beauty was the Foreign Secretary of

having an affair with King George the

Third's mother

so obviously the king was not amused and

he instructed his henchmen Lord Halifax

to identify the author of this anonymous

pamphlet it was called North Britain 45

and armed with this warrant which didn't

specify the place to be searched or the

thing to be seized but basically just

said find the guy who wrote this

pamphlet the King's agents broke into

lots of innocent people's houses riffled

through their private papers and Diaries

and eventually identified Wilkes as the

author of North Britain 45 well he was

indicted for seditious libel

that means criticizing the king and he

sued in trespass he said there was no

valid warrant that particularly

specified me as a suspicious person

therefore my conviction for seditious

libel should not stand and a jury agreed

and gave him a thousand pounds that's a

kind of McDonald's coffee like verdict

of 1763

and this case was so galvanizing to the

American colonists that first of all

they had beer parties that were they

would drink 45 Stein's of beer to

celebrate this case and then they named

towns and children from wilkes-barre

Pennsylvania to John Wilkes Booth in

wilks's honor well the case of John

Wilkes is so significant that John Adams

said of a related case involving the

general warrants at that moment the

child independence was born and Chief

Justice John Roberts invoked this

inspiring story in a really important

and inspiring opinion recently where all

nine justices of the US Supreme Court

held that the police when they arrest

someone cannot search our cell phones

without a warrant in other cases the

court has held that generally when

you're arrested the cops can Pat you

down and open up any closed container on

your body like a cigarette packet but

Chief Justice Roberts telling the story

of the general warrant said a cell phone

is not like a cigarette packet this

contains all of our most intimate hopes

and fears the records of the people we

associate with and the movements that we

make in public for such an intimate and

invasive search a warrant is

presumptively required well there was

another recent case involving technology

in the Fourth Amendment involving Global

Positioning Systems surveillance this is

a case where the cops put a GPS device

on the bottom of a suspects car and

followed his movements 24/7 for a month

he objected that there was no valid

warrant and therefore the search should

fall and in an important decision all

nine justices agreed that a search had

occurred but the majority opinion by

Justice Antonin Scalia said the problem

was physical trespass the cops had to

walk in the guy's driveway when they put

the GPS device on the bottom of his car

and they physically seized the car when

they affixed the device that's a good

ruling as far as it goes but it doesn't

tell us anything about the

constitutionality of those flying drones

because those drones like our cell

phones can track our movements in public

without physical trespass we need

translate the Fourth Amendment in an age

of new technologies so that it protects

just the same amount of privacy in the

21st century as the framers took for

granted in the 18th and in order to

engage in that important act of

constitutional translation I want to ask

all of you to join me in a simple but

resonant question wwbd

what would Brandeis do Louis Brandeis is

my hero he was I think the greatest

Supreme Court justice of the 20th

century he served from 1916 to 1939 and

he believed that it was important to

translate the Constitution in light of

new values he dissented in an important

case in 1928 involving wiretapping a

majority of the court said no physical

trespass when the cops put the taps on

the sidewalks leading up to the office

of a suspected bootleggers but Brandeis

anticipated new technologies he imagined

a day when citizens would be able to

look at each other through television

screens basically he anticipated Skype

and he said that it was important to

forbid searches that could collect a

tremendous amount of intimate

information like wiretapping whether or

not there was a physical trespass all

right so guided by that visionary

insight I want to talk to you about four

technologies that are now transforming

both privacy and public spaces and also

equal justice under law and those are

surveillance in public DNA surveillance

brain scans and targeted advertising

let's talk about surveillance in public

it was August 2011 during that trip when

the guy asked me to by Charlie actually

you know I'm really glad I didn't buy

the charlie because I later found out

that Charlie is cocaine so do not buy

charlie ladies and gentlemen it's very

very bad no Charlie for you

but I don't you know I was sent actually

to London it was an exciting assignment

by the New York Times magazine to figure

out why it was that London and England

the cradle of Magna Carta which is

turning 800 this year has wired itself

up with more surveillance cameras than

any other country per capita in Europe

and I actually sat inside a control room

it looked a little bit like the one that

you're looking at and it was midnight

and I sat there from midnight to 6 a.m.

and watched the monitors as they use

their joysticks in the digital city of

Hull to engage in their surveillance now

ladies and gentlemen what do you think a

bunch of bored unsupervised guys do

between midnight and 6 a.m. when they've

got unregulated access to joysticks

first they zoom in on attractive women

they were kind of ah galang women and

looking and engaging in voyeuristic

surveillance and then they zoomed in on

minority young men guys who look

different and literally were following

them down the street they were actually

before my eyes engaging in racial

profiling that shows us the connection

between invasions of privacy and

invasions of equality DNA surveillance

teaches us the same lesson it is

proliferating and the courts are

beginning to confront it recently in an

important opinion the US Supreme Court

upheld the right of the cops if you're

arrested or I'm arrested to seize a DNA

sample by taking a cheek swab of our DNA

you know by the side of your car and

then taking that genetic information and

storing it in a DNA database that can

later be queried if there's a future

crime just as Antonin Scalia no liberal

slouched he dissented in that case he

wrote a wonderful dissent comparing the

search of our genetic material which can

reveal so much about us our

predispositions to illness for example

to the general warrants that sparked the

American Revolution and Scalia said our

hardy forbearers who force Ward the

general warrants would have been

appalled by this royal intrusion into

their mouths it was a wonderful phrase

but he was in dissent he was in dissent

in that

case and DNA surveillance is

proliferating in ways that are even more

disturbing several states have begun

something called familial searches what

are those so there's a crime scene and

genetic material is found the cops

queried the database and they find that

the person who committed the crime is

not in the database but a family member

of that person is in the database

they're related enough that they can

identify the family over and then the

cops go and identify the family members

and try to track down the suspect you're

shaking your head and you're right that

this is troubling because it has huge

implications for equality African

Americans represent 13% of the u.s.

population but about 40% of people who

are in jail so one scholar has estimated

that as these familial searches

proliferate then you could have 17% of

African American suspects identified by

these familial searches but only 4% of

Caucasian suspects that means that the

police are literally zeroing in on

suspects simply because a member of

their family committed a crime now I

want to talk to you about brain scans

this is another brave new world

technology using fMRI imaging the cops

can distinguish between your amygdala

which is the fight-or-flight impulse

center of the brain and the cerebral

cortex which is the conscience and

they're developing sort of sci-fi lie

detection techniques you could be

stopped on the street hooked up to a

portable brain scan and shown a picture

of a training camp in Afghanistan if you

haven't been to the training camp your

brain won't light up if you have been it

will light up and then you can be taken

into a back room and bludgeon or

something like that it's troubling Wow

indeed well that's only the beginning

because these brain scans in some cases

are being used by criminals to argue my

brain maybe do it you know I shouldn't

be held accountable for a crime because

I had a assists in my cerebral cortex

that made me unable to control myself

but more troublingly we're beginning to

see something called

cognitive profiling we're the police by

taking scans of the brain can decide

that your gray matter suggests that you

are especially likely to engage in

violence in the future people could be

detained not based on their actions but

their thoughts not based on what they do

but their predispositions in light of

this technology we need a whole new

conception of cognitive Liberty to

protect the privacy of the mind and

intellectual privacy and to ensure that

we have zones of immunity from the

government peering into our most

intimate thoughts the final technology I

want to talk to you about is targeted

advertising we're all familiar on the

web with the experience of buying some

Coldplay on one site and being bombarded

by ads for it on another but the dangers

of targeted advertising are not just

annoyance they implicate questions of

economic justice increasingly people are

being put in different categories based

on their perceived value to advertisers

and this is leading for people to pay

different prices online based on the

categories into which they've been

placed did you know for example that if

you are a Mac user you are likely to pay

11% more for hotels that you shop on

Orbitz than if you're a PC user time to

get stopped stopping on Orbitz or else

get a PC but it definitely it definitely

shows you that what we are increasingly

what is happening online is the same

thing that is happening in the

government

we're being placed in categories based

on our perceived value to the government

and based on whether or not the

government thinks that we are one kind

of person this is challenging our very

ability to define ourselves who the

government and advertisers say we are

has become more important than who we

believe that we actually are well what

can we do about this these new

technologies of profiling are

threatening the legitimacy of law

enforcement in the wake of the urban

spring as cities across America were set

on

fire all the studies show that people

are most likely to obey the law when

they trust the legitimacy of the police

that are enforcing it as this profiling

and redlining

and ubiquitous surveillance expands

mistrust of the police may increase

along with an increase in violence so

what can we do about this you see the

incredible image of the young man

fleeing innocently and that experience

of losing any respect for law

enforcement is something that will

proliferate in light of these

technologies we can do several things

about this we have to recognize first of

all that these new technologies of

surveillance do threaten privacy as well

as equality we have to reconstruct

spheres of intellectual privacy and

cognitive Liberty and we have to

recognize that ubiquitous surveillance

is akin to the general warrants that

sparked the American Revolution but most

of all we have to realize that we you

and I have a responsibility for standing

up for privacy and equality in a digital

age and to illustrate this I want to end

with this just incredible story of the

choice between the naked machine and the

blob machine many of you will remember

right after 9/11 at airports going

through these really creepy thermal

imaging through 3d body scanners that

were basically naked machines they could

show contraband or anything that was

under clothing but they also showed

really graphic images of the human body

at the same time the government had been

faced with a better technology call it

the blob machine you can see it as well

it shows a cuddly Pillsbury Doughboy

figure which you just want to give a big

hug to along with a place that indicates

where you need secondary screening well

ladies and gentlemen you would think

that given a choice between the naked

machine and the blob machine this would

be a no-brainer because both of these

machines promised exactly the same

degree of security but one threatens to

immolate privacy while the other

absolutely protects it but that's not

what happened

given the choice between these two

machines in fact the government in many

cases chose

the naked machine and it took a

political protest the immortal words

offered by that young man who should be

immortalized as the Patrick Henry of the

antibody scanner movement this was the

guy who exclaimed at Thanksgiving a few

years ago at the airport

don't touch my junk those beautiful

words inspired citizens across America

to rise up and to demand their Liberty

and the result of that protest the

result of that protest convinced the

government to go back to the drawing

board and they were shocked to discover

oh wait they could in fact retrofit the

naked machines as blob machines nowadays

at most airports when you go through a

body scanner it will be a blob machine

not a naked machine for most of us

ladies and gentlemen that is an act of

mercy so that is the moral of my story

ladies and gentlemen ultimately the

responsibility of protecting privacy in

the age of new technologies and equal

justice under law falls upon We the

People the courts can't save us

legislators can't save us technologists

can't save us the only people who can

save us ladies and gentlemen is you

thank you so much

you