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Daedalus was the mythical great architect and artificer of the classical world. Today, embedded intelligence is enabling the most profound changes in the way we create and use buildings since his day.

Building Intelligence meets the Intelligent Building. The Intelligent Building negotiates with the Intelligent Grid. How will this transform how we interact with the physical world?

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Tuesday
Feb232010

Spam & Smart Grid Operations, Privacy & Civil Rights

Spam has changed how we think about email, and automated monitoring and control needs to change how we think about privacy. If you make something very much easier and cheaper, it is no longer what it once was. Smart phones, smart buildings, and smart grids are now at the center of privacy law. Privacy is the ground upon which the battle for the preservation of the 4th amendment will be won or lost.

A serious of court decisions, each looking more to a desired end than to the constitution, are using technology to redefine what “reasonable” means in the 4th amendment to the US Constitution. If we are not careful, smart grids might destroy the last remaining realms of privacy, that is, our privileges to be free from interference in our lives. Soon, the 4th amendment and its protections may mean nothing at all.

English common law declared the home inviolate even from the King and the King’s men at least as early as 1300. In 1760, William Pitt famously stated the right: "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it. The rain may enter. The storms may enter. But the king of England may not enter. All his forces dare not cross the threshold of the ruined tenement."

The fourth amendment has its roots in a growing violation of this right using the general warrant as a tool. A general warrant is an arrest warrant that does not name or describe the person to be arrested, or a search warrant that does not specify the premises to be searched or the property sought. Such warrants were outlawed in England in the middle ages. In the 18th century, their use was revived with through the writ of assistance. Then as now, the regulation of commerce was used to erode liberty, and writs were issued to in the form of general warrants to assist in enforcing trade and navigation laws. These writs authorized customhouse officers to search any house for smuggled goods without specifying either the house or the goods.

The resentment bred by these writs of assistance contributed strongly to revolutionary fervor. Still feeling the sting, the memory of these writs led to the adoption of the 4th Amendment to the US Constitution two decades later:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The language is clearly written; its meaning is clear to anyone whose understanding of English has not been clouded by the study of the law. No means No.

Technology and Commerce are the hammer and tongs on the privacy of the home. A walled garden or a large property are secure from prying eyes. Regulation of commerce says we must manage Cannabis. Planes change the definition of public view. Technology erodes the concept of privacy and chips away at the 4th amendment.

Ten years ago, a police department, suspicious about indoor plantations, scanned houses with an infrared scanner. They discovered a hot spot, and used it to get a warrant, and found grow lights in the attic. The owner, Kyllo, fought his conviction, fought it all the way to the Supreme Court, and won. The 4th amendment held against advancing technology. Unfortunately, that ruling held the seeds of the complete destruction of privacy and the 4th amendment. The ruling held that “when . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.” Unraveling all the negatives, the ruling states that no warrant is required to authorize government use of any technology in general public use.

Today, such scanners are in common use. Many utilities offer to subsidize scans of your home. It appears that today, there would be no requirement of a specific warrant before scanning your home—or before scanning every home in your neighborhood.

The fourth amendment never protected against observation by government agents of public activity. There was always a practical limit on such monitoring because it had a real cost. It took as long to listen to a wire tap as it took to have the original conversation. Sending a squad car to tail a suspect cost the use of a squad car and the salary of a policeman for an entire day. Only an unashamedly corrupt society would assign the resources of a Stasi to watch all citizens.

Email has eliminated all cost barriers to sending unsolicited communications, and so created spam, hated for its use by legitimate and illegitimate organizations alike. Auto-dialers reduced the human time required to make unsolicited phone calls, creating a desire to regulate the free use of the phone system. In a similar way, automated monitoring and analysis has eliminated the practical barriers to pervasive monitoring of all citizens at all times. Just as spam storms required us to build policies to control unwanted messages, so the automation of monitoring requires us to expand our notions of privacy just to maintain the fourth amendment as it was.

Current case law and judicial rulings are pushing in the opposite direction, toward the negation of the 4th amendment.

Law enforcement in the US is arguing that there is no privacy protection for any information routinely collected. This is particularly troubling as with the other hand, government is mandating that information be routinely tracked. Some years ago, government mandates (“to support E911”) required that all cell phones be trackable with high precision, higher than the cell companies required for their own business. Last week, the Justice department argued that as this information was routinely gathered, there was no expectation of privacy surrounding such information. This month, our government has argued that it should be able to track the whereabouts of any and all of us today and for the previous 120 days, without warrant, without explanation, and without judicial review.

Smart grids demand that smart buildings respond to changes in the availability of electricity in the grid. The largest utilities, particularly the California utilities, are advocating business models of direct load control, tracking the use of all devices in a home. A decade ago, engineers found they could track the use of all systems in a house from the meter; they could even distinguish from the signature of the heater whether a waterbed was occupied or unoccupied, or whether the occupants of that bed were active or sleeping. Complete access to building operational data is a loss of privacy more profound than a search, because it continues over time.

One of the key deliverables named in the UCAIug’s OpenADE requirements for tracking energy usage is the “Law Enforcement Interface.” The only good thing I can say about that is they decided to leave it out of version 1.

This last election cycle saw state employees abusing their authority to harass and discredit a private citizen who discomfited their favored candidate. One political team claimed that the previous administration can and would do anything, abuse any right to have its way. The other team has expressed horror at a rank intimidation of political discourse found in the current administration collecting emails of dissenters. How can those on either side honestly accept the 4th amendment suffering a death of a thousand cuts through the acceptance that technology erodes privacy?

The complete loss of privacy *is* the complete negation of the 4th amendment. Exposing operational data to the power of data mining *is* the complete loss of privacy.

The founders were literate, and they would have read Milton, who in Paradise Lost wrote:

And with necessity,
The tyrant's, plea, excus'd his devilish deeds.

As C.S. Lewis updated the formulation, "'Useful,' and 'necessity' was always 'the tyrant's plea'." There is nothing so useful or necessary that we allow untrammeled collection of such information by smart grids. There are business and technical models that avoid such collection. We should choose them.

 

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Reader Comments (2)

Thanks Toby, for a literate, forceful, and historically informed defense of our 4th amendment rights. I think your entry is timely and appropriate and addresses a quiet encroachment that has been going on, as you say, for decades. It creates in me the same concern that Kelo vs. The City of New London did in allowing eminent domain to be utilized for "economic development," there is no telling how much pain the individual will have to suffer for the presumed (or more accurately in these cases, assumed) benefit of us all. So much for the 5th amendment, when anything can be declared "public use."

February 23, 2010 | Unregistered CommenterDavid Dickinson

Wow - you're comments are super smart -

Its like you understand something I should too - I do know that that the connectivity we are embarking on breaks traditional personal and space dynamics .....

If privacy is based on pre "internet / grid" realities... I can imagine there are many challenges.

Thank you for posting some of them -

chrs

February 25, 2010 | Unregistered CommenterFriendFromCanada

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