The Legal Side

Written by Doug Klunder
Just as Christina did, I figure it makes sense for me to start out with an introductory post. I'm the Privacy Project Director at the ACLU of Washington (ACLU-WA). Although not strictly limited to technology issues, the majority of privacy concerns have a technological component - either due to specific surveillance technologies or simply due to the application of electronic information processing systems to old-fashioned information. I also serve as the head of the legal arm of the ACLU-WA Technology and Liberty Project (TLP). So you can expect my posts to be limited to privacy issues, and typically have a legal bent – either litigation or analysis of statutes or proposed legislation.

Personally, I'm a hybrid of a Luddite and a tech weenie, if you can imagine such a thing. My first career was as a programmer, in the early days of the PC. I led the development of a couple of today's most popular programs (Microsoft Excel and Microsoft Money). But at the same time I was helping make computers a useful tool for the masses, I also had a healthy fear of what widespread computer usage could lead to, especially with regard to privacy. I quit programming almost 15 years ago, so I'm now entirely obsolete as a programmer, other than retaining a general concept of what types of things are technologically possible. I have since gone to law school, and have been practicing law in the privacy arena for about 5 years.

I regularly find myself conflicted about the use of technology. I love the Internet, and spend most of my time online, for both personal and work purposes. I don't think I could function any more without Google. But at the same time, I'm keenly aware of the loss of privacy that my Internet usage leads to; although I feel like I'm anonymous when sitting in front of my keyboard, I know that in reality I'm tracked in ways that I never could have been offline, wandering in and out of stores, doing research in a library, or talking with friends. Sure, I use tools to limit some of the tracking, but I've chosen not to use the most effective tools (such as Tor) because they're simply too inconvenient. In other areas of life, I've personally made the opposite choice; for example, I don't particularly care for the conveniences of cell phones, so it's been easy for me to stay away, with the side benefit of avoiding the detailed location tracking inherent in carrying a cell phone. And sometimes I'm just plain irrational in my choices, like most people. I eschew supermarket loyalty cards, but am a Costco addict, even though I know Costco collects all the same information as supermarkets do through loyalty cards.

Despite these conflicts, there are some examples that I, and the ACLU, believe are cut and dried. We've litigated a variety of these issues over the past 20 years or so, often under Washington State's privacy-protective constitution. I'm glad to be in one of the best states in the country from a privacy standpoint, and know that ACLU-WA work has helped to make that true. We've won cases protecting phone records and conversations, garbage, and financial records. Random roadblocks are unconstitutional in Washington, as are warrantless use of GPS devices and suspicionless searches of hotel registries, and random drug testing of most public employees. And our legislature has been helpful in some instances as well, such as rejecting fingerprints on driver's licenses, preventing use of DNA testing in employment, exempting some personal information from public disclosure, and most recently soundly rejecting REAL ID. Of course, we've had losses as well, in both the courts and legislature.

I expect to blog further about some of these legal and legislative developments. And I may not be able to resist a post or two on particularly seductive technologies, or those with hidden privacy pitfalls. Perhaps even a philosophical post on the nature of privacy, and societal ambivalence about it. Stay tuned...