Of course, there are plenty of regular, law-abiding people who will respond, “I don’t do anything wrong, so they won’t watch me, and there’s nothing to catch me doing.” But in his 2011 book Three Felonies A Day: How the Feds Target the Innocent, civil-liberties lawyer (and occasional Phoenix contributor) Harvey Silverglate details exactly how misguided that sense of security can be. Making the argument that federal laws are overbroad, loosely interpreted, and aggressively prosecuted, Silverglate describes case after case in which innocent citizens doing their very best to behave within the law accidentally came to the attention of federal authorities — largely through personal misfortune, such as running out of gas when riding a snowmobile on US Forest Service land — and were charged with, and convicted of, felonies.
Let’s just say it straight: If a federal prosecutor wants to find something you’ve done wrong, there’s probably something that could qualify. Your main hopes to avoid prosecution are: 1) avoiding coming to authorities’ attention, and 2) depriving the authorities of information that could be used against you. Since the first is mainly a matter of chance, it’s best to focus on the second — which is, plainly put, privacy. How, exactly, should we do that? In her sidebar (“Counterveillance 101”), Deirdre Fulton outlines some strategies.
Doing the NSA’s bidding
As best we can tell, the government is not doing direct collection of the information it’s using. Rather, the NSA and the FBI are demanding — at times with the help of judges in the secret Foreign Intelligence Surveillance Court — that private companies disclose data those firms have already collected from us. We have offered up that information willingly in almost every case, often in exchange for services we like, such as connections with distant friends, or directions to the nearest gas station.
There are two key differences between this and what the government is doing. First is transparency: do we know the information is being collected, and by whom? And second, what could the people who have the data do with it? The specter of being tracked just by our cellphones is very real — and requires no snooping on conversations. (See sidebar, “Metadata matters.”)
That said, corporate data-mining is pretty open. Most of those companies tell us — even if it’s buried pages into a software license agreement — they’re collecting data, and most of them make it fairly obvious they do so. For example, when we connect to Facebook, it’s right in front of us that the site knows our own information and that of our friends. And we know, when we sign up for customer-loyalty programs, that we’re being tracked in exchange for discounts or special deals.
And what companies can do with the data is pretty limited (or so we think). Of course, they could publish it — but apart from the fact that Facebook in particular offers publication as a benefit of its service, it’s worth noting the effectiveness of public backlashes against Facebook’s periodic attempts to relax privacy controls. That outcry is a limit on intentional corporate misuse of the data — and if the data is stolen or otherwise gets out unintentionally, federal and state laws offer recourse to those whose private data is compromised.