Justice Sotomayor Warns Against Tech-Enabled "Orwellian" World

An anonymous reader writes: U.S. Supreme Court Justice Sonia Sotomayor spoke on Thursday to faculty and students at the University of Oklahoma City about the privacy perils brought on by modern technology. She warned that the march of technological progress comes with a need to enact privacy protections if we want to avoid living in an "Orwellian world" of constant surveillance. She said, "There are drones flying over the air randomly that are recording everything that's happening on what we consider our private property. That type of technology has to stimulate us to think about what is it that we cherish in privacy and how far we want to protect it and from whom. Because people think that it should be protected just against government intrusion, but I don't like the fact that someone I don't know can pick up, if they're a private citizen, one of these drones and fly it over my property."

Comments

What are the bounds of property?

[Aldenissin]

How high above the dirt do I own? In theory, I could just go straight up with a powerful enough camera lens and zoom in and see what I want on your property from another piece of property, possibly miles away. I see little difference than selling people rights to the dirt, but not to the minerals, and the legality of drilling diagonally underneath someone else's property.

Right now where I'm at on this is allowing someone to look at my property, as long as they aren't "above" my property, and if they do cross my property line they can be held responsible, including me shooting it out of the sky. I can always go inside, just like neighbors can peer over a fence.

Re:What are the bounds of property?

[Aldenissin]

Also, as far as I am aware, you are not allowed to have security cameras on your property that film parts of other's properties. Those laws should suffice, or at least be amended to include "roaming" cameras.

Re:What are the bounds of property?

[LookIntoTheFuture]

In a perfect world, people would be polite and ASK if they could take photos of you or your property. But in this reality, people can do whatever they want without thinking about anyone else. Empathy is frowned upon. It's mine and I want it NOW NOW NOW. Wah! he's not letting me do whatever I want to! What an asshole!

Re:What are the bounds of property?

[SternisheFan]

In the U.S., you are allowed 'reasonable' air rights. Reasonable meaning a tall antenna so you can pull in radio/TV signals. That seems about as far as you have rights to. From Wikipedia:

The landowner's claim raises some fundamental legal principles about the ownership of land and the airspace above the land. These principles have been developing over time. In early common law, when there was little practical use of the upper air over a person's land, the law considered that a landowner owned all of the airspace above their land. That doctrine quickly became obsolete when the airplane came on the scene, along with the realization that each property owner whose land was overflown could demand that aircraft keep out of the landowner's airspace, or exact a price for the use of the airspace. The law, drawing heavily on the law of the sea, then declared that the upper reaches of the airspace were free for the navigation of aircraft. In the case of United States v. Causby,[4] the U.S. Supreme Court declared the navigable airspace to be "a public highway" and within the public domain.

At the same time, the law, and the Supreme Court, recognized that a landowner had property rights in the lower reaches of the airspace above their property. The law, in balancing the public interest in using the airspace for air navigation against the landowner's rights, declared that a landowner owns only so much of the airspace above their property as they may reasonably use in connection with their enjoyment of the underlying land. In other words, a person's real property ownership includes a reasonable amount of the airspace above the property. A landowner can't arbitrarily try to prevent aircraft from overflying their land by erecting "spite poles," for example. But, a landowner may make any legitimate use of their property that they want, even if it interferes with aircraft overflying the land."[5]

http://en.wikipedia.org/wiki/A...

Re:What are the bounds of property?

[PopeRatzo]

How high above the dirt do I own?

Zero. Since the Supreme Court's Kelo decision, you don't "own" a goddamn thing. You have property only at the pleasure of the government, and as long as there isn't a corporation who can make better use of your property. And by "better use", I mean, will pay more in taxes.

https://en.wikipedia.org/wiki/...

Re:What are the bounds of property?

[pubwvj]

Actually, "how high above the dirt you own" is already well defined, both in law, regulation and court cases. What is happening at the ground and a bit above on your property is yours and you can even own copyright on it. Government and individuals are not supposed to snoop on you. Fliers are not supposed to fly below 500' above you in rural areas, higher in urban areas. The result is that if someone is peeping on you in a situation where you can reasonably expect privacy you can sue them and they can also separately be fined and imprisoned by the government. The government itself is supposed to get a warrant to view you.

Just as importantly, the other logical question is how far down below the surface do you own. This is your mineral rights.

Typically in the eastern United States you own all the way down, let's say to the mantle. The exact depth doesn't get too much precedence since deep drilling hasn't been done but fracking may be changing that soon.

Out in the western United States you may well not own below your surface soil, you may well not own your mineral rights, you may well not own your water rights and you may well not even own the rain that falls upon your land. Check your deed and your state laws.

In the fourth dimension of space you own nothing. That is possibly reserved for the alternative owners who may or may not own the land you own in this variation of the multiverse. This will not appear on your deed.

In the fifth dimension (time) your ownership started at some point in the past delineated by your purchase and will end at some point in the future marked by your death or other event. Again, check your deed for the particulars.

Re:What are the bounds of property?

[jklovanc]

and if they do cross my property line they can be held responsible, including me shooting it out of the sky.

Can you shoot down airliners who cross your property lines?
You actually don't own all airspace over your property. There has been a SCOTUS ruling on the matter.

Thus, a landowner "owns at least as much of the space above the ground as he can occupy or use in connection with the land," and invasions of that airspace "are in the same category as invasions of the surface.

It is clear that the land owner does not own navigable airspace. Navigable airspace is defined with respect to fixed wing aircraft, the FAA has done that, it is unclear as to what navigable airspace means with respect to small drones. There is even a clause that allows helicopters to fly below normal flight minimums. There still needs to be legislation defining exactly what "space above the ground as he can occupy or use in connection with the land" legally means. Having to fly comercial drones at fixed wing minimums would render them useless. This is one of the reasons why the FAA is holding back on allowing commercial drones as the laws backing them up are unclear.

Re:What are the bounds of property?

[careysb]

You can't put the genie back in the bottle. Every recording method and device is suspect, not just drones. 1984 has been privatized and the price has come down to the level that a typical home owner can afford it. And, not everyone that can afford it is a peeping-tom.

Canada seems to be ahead of the curve compared to the U.S..

drone-based-businesses-soar-in-canada-as-faa-grounds-us-entrepreneurs:
https://gigaom.com/2014/09/12/...

Re:What are the bounds of property?

[Jane Q. Public]

The U.S. Supreme Court declared the navigable airspace to be "a public highway" and within the public domain.

HOWEVER:

the authority to govern "navigable" airways comes with some caveats, which most people here aren't considering.

First, "navibable" in U.S. law implies that manned craft can use that route to travel interstate. That is pretty much the same definition as "navibable" waters.

The Federal government's AUTHORITY to govern "navigable airways", just like their authority to govern "navigable waters", stems from their authority, granted by the Constitution, to govern interstate commerce.

"Navigable airways" are particular altitudes and routes. They are clearly defined in aviation charts.

Everything else is "fair game", and by the Constitution (and Common Law) is up to the landowners and the States.

To put it in a nutshell: by ancient common law (which still holds; U.S. is a Common Law country) everything EXCEPT the clearly-defined "navigable airways" is indeed legally controlled by the landowner below, and is not subject to Federal jurisdiction.

Further, in my state, it is not legal to use any means to "surveil" property which isn't normally visible from the street, by ANY means, including aircraft, without a warrant. And yes, that means using a stepladder to see over the fence IS a crime.

Re:What are the bounds of property?

[greenbird]

Also, as far as I am aware, you are not allowed to have security cameras on your property that film parts of other's properties. Those laws should suffice, or at least be amended to include "roaming" cameras.

Ok. I'm calling bullshit. Please provide a sample of such a law. I've never seen video camera footage that did NOT film others peoples property. I'm not really sure how that would be possible while still getting a useful image.

Re:What are the bounds of property?

[greenbird]

Now, would you please refer to sections B. and C below? To answer your question, you must angle the camera's down so that they record only up to the top of the fence or to the property line.Private property has an expectation of privacy in Georgia.

Not taking a section quoted out of context to make it appear you are right when you were really wrong:

(2) Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view; provided, however, that it shall not be unlawful:

(A) To use any device to observe, photograph, or record the activities of persons incarcerated in any jail, correctional institution, or any other facility in which persons who are charged with or who have been convicted of the commission of a crime are incarcerated, provided that such equipment shall not be used while the prisoner is discussing his or her case with his or her attorney;

(B) For an owner or occupier of real property to use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are on the property or an approach thereto in areas where there is no reasonable expectation of privacy; or

(C) To use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are within the curtilage (fenced yard) of the residence of the person using such device. A photograph, videotape, or record made in accordance with this subparagraph, or a copy thereof, may be disclosed by such resident to the district attorney or a law enforcement officer and shall be admissible in a judicial proceeding, without the consent of any person observed, photographed, or recorded;

Ummm...you do realize the parts you quoted out of context are really the exceptions to the law that state where recording is legal? Reading the entire section it only states it's illegal to record activities "which occur in any private place and out of public view". It doesn't say a single word about recording on another persons property. In other words what you linked to actually shows you're wrong. At least with regards to GA law. Please try again.

I'd advise you in the future to ask someone for evidence first, especially if you are going to make demands after you've just insulted them via their speech. For example, a better way, "It smells like BS to me, would you please supply some evidence and additional information?

My original post said exactly what you suggest except I spelled out "bullshit" instead of a weaselly acronym. I even said please. I certianly didn't say you smelled like it or were stepping in it or anything.

Re:What are the bounds of property?

[pubwvj]

If you're limited to three dimensions then I'm sorry but you won't be able to understand. Here... ... did you get that?

enh

[roc97007]

The impression I got was that she was more against private ownership of camera-equipped drones. I'm guessing that this argument will be used to put limits on individually owned drones, not on government owned drones.

Re:enh

[PopeRatzo]

I'm guessing that this argument will be used to put limits on individually owned drones, not on government owned drones.

Or on corporate drones. Many of the surveillance drones used by the government are actually owned and operated by contractors. The big corporations won't have any problem owning drones.

Re:enh

[roc97007]

I don't think private individuals using drones to be a peeping tom is a serious problem, but assuming for the sake of argument it is, consider that drones are cheap and getting cheaper, so losing a few may not be a problem. Also, they're hard to see at night, which is when all the cool stuff is happening. And you know, right, that modern drone camera systems downlink to a base station for a live feed? So dropping the drone doesn't destroy the video.

Jamming the drone may give you some temporary relief, but even that won't actually cause the drone to crash, as modern drones have a "go home" failsafe if they lose signal.

On the other hand, touching off a firearm in the city limits under circumstances not considered life-or-death is generally frowned upon by the local constabulary. Likewise, but much less serious, jamming in general is frowned upon by those same agencies.

But again, I doubt that individuals using drones for some purile neighbor spying will become a thing. Much more likely would be drones deployed by the media, which may get a legal pass as long as they're not embarrassing the police, private security entities, and of course, any local or national government agency.

Hmm...

[Anonymous Coward]

Isn't she one of the very people that actually helped to build the Orwellian society we already have?

Because people think that it should be protected just against government intrusion, but I don't like the fact that someone I don't know can pick up, if they're a private citizen, one of these drones and fly it over my property

Except private citizens aren't doing this and lack the funds and tools to do it even if they wanted to. Our government, on the other hand, is fist-deep in our assholes at any given moment. I'm not sure I understand the logic behind allowing the government to do as it pleases, while placing further limitations against citizens that aren't even a problem to begin with.

Re:Hmm...

[I'm New Around Here]

She had a job before being on the Supreme Court.

I'm just mentioning this, in case you were born yesterday.

if only

[Cardoor]

if only she were in some sort of position to do more than talk to oklahoma students about the topic.. ah well.

Re:if only

[PopeRatzo]

if only she were in some sort of position to do more than talk to oklahoma students about the topic.. ah well.

Do you understand how the Supreme Court works? They can only adjudicate cases brought before them. They can't make policy outside of those cases, so in fact, she is not in a "position to do more than talk" until a case comes before her challenging surveillance. And even then, she's one vote out of nine.

A Supreme Court justice can do three things in their official capacity: talk, write and vote, and the talking they do is mostly asking questions. They can't initiate any action at all.

If you want something "done", you've got to talk to your congressbum.

Re:if only

[AthanasiusKircher]

Do you understand how the Supreme Court works? They can only adjudicate cases brought before them.

While true in a strict sense, in a broader sense the Supreme Court has the ability to shape jurisprudence around bigger issues. Take, for example, the recent plethora of federal court rulings overturning gay marriage bans in a number of states. The Supreme Court did NOT rule on this issue directly. In fact, the majority rulings last year explicitly avoiding tackling that issue. But, as Scalia noted in dissent at the time, the type of argumentation used in the majority opinion strongly implied that no legal logic would support a gay marriage ban.

So, in the process of adjudicating a case before them, the Supreme Court laid the groundwork for other rulings that were strictly unrelated, but followed from the legal arguments employed.

In this way, Supreme Court justices can shape jurisprudence on cases far beyond their docket. If they begin to make strongly worded objections to Fourth Amendment violations and present new legal justifications for stopping those violations, chances are those sorts of legal arguments will be upheld by lower courts.

And even then, she's one vote out of nine. [snip] If you want something "done", you've got to talk to your congressbum.

True, but 1 out of 9 is somewhat better odds than 1 out 435 in terms of hoping to "get something done," particularly when a number of privacy-related cases have been coming before the Court in recent years.

Re:She doesn't mind the state controlling everthin

[AthanasiusKircher]

She's probably just fine with the *state* peeping into your (not her) business. That's the very definition of a self labeled "progressive". Guns, drones, private (no tax man involved) monetary interactions between people, healthcare, retirement, etc.

Actually, Sotomayor is a bit of an outlier on the Supreme Court and has been highlighted for laying the groundwork to reinstate stronger Fourth Amendment protections -- particularly against the government intrusions -- especially in her ruling in United States v. Jones . (For details on her privacy rulings before joining the Court, you can see EPIC's summary here.)

Note that in TFA she was warning about "Orwellian" surveillance, which specifically tends to refer to a world where the government is spying on you, not just private citizens. The quotation highlighted in TFS seems to focus on private citizen regulations, but she has also demonstrated more concern about many government invasions of privacy than most other Supreme Court members, including those who are definitely NOT ''progressives."

Re:So did Orwell

[AthanasiusKircher]

I fail to understand why Sotomayor's opinions are news when they are not fundamentally different from high school book reports written all over the US.

Maybe because she's one of only NINE people in the United States who potentially have the direct power to constrain a surveillance state, since it's clear that our Executive and Legislative branches have "sold out" and have effectively rendered many clauses of the Fourth Amendment meaningless.

Note that the Supreme Court has UNANIMOUSLY overruled the Obama administration's stance at least 13 times in the past two years, in a number of those cases protecting privacy and related freedoms.

So, yeah, this person is one of the few who are close to our only hope in stopping the continuous march toward government surveillance, intrusions into privacy, and complete dismissal of Fourth Amendment protections.

THAT'S why her opinion is news.

Re:She doesn't mind the state controlling everthin

[PopeRatzo]

She's probably just fine with the *state* peeping into your (not her) business.

No, Sotomayor sees limits to government surveillance, unlike many of her colleagues.

Re:So did Orwell

[AthanasiusKircher]

(By the way, before anyone accuses me of bias against Obama or whatever because many of these cases involved actions taken under Bush as well -- note that my argument was about Executive power in general. Obama has generally continued Bush's abuses of that power, and this problem is not one that falls along party lines.)

Re:Just now?

[PopeRatzo]

She's worried that common, private citizens can get camera drones and fly them above your property as if that ability wasn't available before now in multiple forms?

To be fair, "private" means corporations, too. Until I see a vote on a lower court decision, I'm going to give her the benefit of the doubt. She's been only one of maybe three Supreme Court justices who seem to believe in privacy. And one of the others seems to think privacy only applies to men and corporations.

old person surrounded by old people

[bussdriver]

Old person explains something new to THEM or something THEIR peers are ignorant of but every younger person is aware of.... not news.

1984 wasn't about technology, it was about authoritarianism taken to the next level using primarily negative feedback. A realistic response (because history shows negative feedback is totally dominant) to the highly praised imaginative Brave New World which used positive feedback to control populations. It's a rebuttal based on historic human behavior. Both books need to be studied because techniques from both camps are used to control populations. Soft sciences make it more effective and technology is merely a tool.

When somebody has an epiphany; that is great, humor them for catching up. Then try to guide them to the next step and let them have another one. Technology isn't 1984; we have always been there as humans. Few societies are organized so well using the latest social science as 1984 did. It just allows things to go further and the technology allows for more micromanagement-- which is the holy grail for authoritarian systems... the end game solution. Oh, 1948 was the date of the book; 1984 is meaningless, just a future date taken from 1948 but close enough for people at the time to THINK about it.

The micromanagement technology is arguably is required for an end game solution like 1984 because it's been tried thru out human history but eventually it fails because they can't control all the people all the time-- 1984 is the end game solution, where they finally can. Nothing is different except that it's permanent an unable to be stopped. No revolutions. Likely, there are no other nations to invade or conquer either (likely just a smokescreen.)

Terrorists like the founders of the USA would be caught early. No revolutions. Violent human struggles on the group level would end. ORDER is one of the top priorities of authoritarians. can't allow unrest. can't even allow protests -- you need a permit or it's disorderly --- we accept that despite it being in the 1st next to speech; we don't quite accept speech zones or permits for free speech... but we are not that far from it.

Re:So did Orwell

[sysrammer]

Your a/c post is even weaker. He stated that he was talking "about Executive power in general", and "not one that falls along party lines". This stuff has been going on for over 100 years. As a general internet post, yeah, he's not going to list every instance of executive presumption every time he needs to make a point. Obama/Bush is good enough to illustrate the examples of a hundred years of policy and practice.

Your smartphone + cloud are much more dangerous

[aqui]

Everyone keeps talking about drones being an issue.. They are just the side show and distraction. We don't need to regulate drones, we need to regulate big data.

Reality is that the NSA didn't need drones to know everything about you. They could collect all payment information, all internet presence, own your smartphone with spy apps, own your PC, and track your every relationship through meta data from your telecom provider. They know who you talk to and how frequently and in fact and have in fact "stopped revolutions" while they were small when it comes to terrorism. The notion that we live in a free and open society is long gone. People have ended up on watch lists for being aware of TOR, linux and other technologies. I wouldn't surprise me if anyone that uses slashdot as they have had discussions is "watched". That's just your US government. Companies track your spending, and manipulate your environment to try an get you to consume more. There are records on your credit, what services you buy, what you read, where you shop, where you live that are traded and bought and sold as profiles between corporate entities for the sole purpose of their profitability.

Practical surveillance is here. They don't know when you fart and burp yet but with exercise sensors that report to the cloud, and the internet of things they'll know those things soon too. All they need is a big enough data center to consolidate the data build complete profiles on you. If stores (e.g Target) can start sending you diaper coupons because your purchasing habits suggest you might be pregnant believe me they will (in fact they already have).

Re:So did Orwell

[TapeCutter]

Where does the notion come from

They teach civics on Fox these days, apparently there's something called an "activist judge" that can rewrite laws on a whim. According to Fox, these activist judges always make the wrong decision for the wrong reason.

Drones are just a distraction

[penguinoid]

Orwellian society has come to us not because of technology, but because of people. Everyone from the President, NSA, Congress, Courts, Law Enforcement, and General Public is guilty of encouraging or simply allowing the erosion of our liberties. Because we need it to fight the terrorists, druggies, and especially child molesters. Think of the children!

Even if we manage to get government espionage under control, what technology is allowing is for private companies to collect massive amounts of data on us. And every idiot who installs apps on their phone that require "spy on you" permissions is guilty of helping them do so and even financing them. I can't see this stopping until someone makes a sufficiently shocking news story about violations of people's privacy. Maybe someone will make an app that forwards a copy of your browsing history to your mother and significant other, and a message to you saying "this is a small fraction of what every company knows about you".