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Who thinks that they can subdue Leviathan? Strength resides in its neck; dismay goes before it. It is without fear. It looks down on all who are haughty; it is king over all who are proud. These words inspired PJ Wehry to create Chasing Leviathan. Chasing Leviathan was born out of two ideals: that truth is worth pursuing but will never be subjugated, and the discipline of listening is one of the most important habits anyone can develop. Every episode is a dialogue, a journey into the depths of a meaningful question explored through the lens of personal experience or professional expertise.
pj_wehry:
and welcome to chasing leviathan i'm your host p j weary and i'm here today with so ruse farovar senior writer at forbes and we're talking about his book bis data privacy versus the rise of surveilance tech suru thank you so much for coming on th show today
cyrus_farivar:
my pleasure thanks for having me
pj_wehry:
talk to us a little bit about why this book what led you to write this
cyrus_farivar:
yeah the book you know it's interesting it came about because i was at a point in my career some years ago where i was trying to learn more about and became you know had more encounters with different types of surveillance technology just before we got on this call i was talking about my experience my professional experience working in living in germany between twenty ten and twenty twelve i was i was working for doc english which is the german public le funded international broadcaster so had an english language show called spectrum on the radio broadcast in various countries around the world and when i arrived in germany in the spring of twenty ten something really interesting was happening in germany with with regard to technology which was the fact that googlestreview was just arriving in many um in google street view folks may remember right by that point in the u s was several years old i want to say i don't remember offhand when it first arrived but you know i think we've kind of mostly forgotten about it at that like i think
pj_wehry:
right
cyrus_farivar:
you know it was just like a thing that kind of you know there's a ittle blip of privacy owners who i love who you know complained about it at the time but it kind of went away and and we just kind of accept the fact that like private company has pictures of everyone's house forever i guess and so
pj_wehry:
right
cyrus_farivar:
you know in germany germans take a very different view to privacy and to what and what's private and so i found myself arriving at a time when when google wanted to do this in germany and there was this big kind of public ruffle in um kind of public debate german politicians basically saying you know we're not going to have you know googlestreetview here in germany and it's going to be it's this whole big thing and so that sort of got me thinking about like what is the relationship between what is private and public how to think about those kinds of issues um you know in germany i got the impression that people i would say the sort of default position is that people are pretty accepting of what the german government does and maybe less accepting of what private companies do when it comes to privacy i'm talking about where as i feel mostly the default here in america is sort of the opposite we're pretty accepting of what companies do and we're less accepting of what government does generally speaking um and so i found that sort of you know dichotomy pretty fascinating and that led me down the path to look more closely at uses of various types of survey in the technology back then when i was a reporter at our technica texte that i worked for after gogavella when i came when i moved home to california in twelve m and so i started just being exposed to numerous types of technology and trying to understand how is it that these technologies are being used how is it that they're legal why are they legal how is it that you know court decisions made you know decades ago you know direct or allow newer technological applications to
pj_wehry:
m
cyrus_farivar:
be used in what i think is oftentimes kind of a novel way
pj_wehry:
yeah i think one of the ones you mentioned here and i never really thought about this before like normally if you give police cause to stop you they can search your person and then all of a sudden with phones it's like there's a huge difference the amount of information you can get on the items that are in a person's purse like on a person's body versus what's in their phone
cyrus_farivar:
right
pj_wehry:
that i had heard that before and i saw that you know you mentioned that and talked about that before we get into that may be just some of the more broader kind of categorical things what do you see are the kind of pros and cons and kind of the different iss is available between official equipment and surveillance use and third party equipment and surveillance use
cyrus_farivar:
yeah i mean it's it's the line i would say is getting blurrier all the time to be frank
pj_wehry:
yeah
cyrus_farivar:
right i mean
pj_wehry:
yeah
cyrus_farivar:
i think that we live in a world now where you know i would imagine nearly
pj_wehry:
oh
cyrus_farivar:
every law enforcement agency in america big and small whether you're talking about your local county sheriff your local police department all the way up to you know a big three letter agent see like the f b i or the n s a or something every level of american law enforcement is using some type of surveillance tool to do their job and like depending on your view of government you can believe that you know there totally well intentioned or maybe they're totally not well intentioned or maybe somewhere in the middle or maybe it depends on the day or who knows
pj_wehry:
yeah
cyrus_farivar:
but you know
pj_wehry:
ye
cyrus_farivar:
i think that compared to private companies that are using what is often called you know surveilance capitalism or you know the people talk about the surveillance state and i think surveillance capitalism is is a kind of a version of that that exists in the modern world that like and i think when people talk about surveilance capitalism i think generally what they mean is that like you know when you and i are cooping around the internet and you know interacting with our friends interacting with our family you now conducting you professional interactions online our movements our actions our reactions what we click as like or or links that we follow the way we interact with websites is monitored profit and that's not inherently bad necessarily but it can be used to you know glean certain pieces of information about you as a way to serve you advertising as a way to encourage you to take certain actions
pj_wehry:
oh
cyrus_farivar:
that maybe you know based on information that companies may be otherwise would not have and many people don't find that disturbing right many people are like well i'm just living my life and you know who cares if you know if google knows what my favorite sports team is or that i like star trick or whatever you know it's no big deal and i totally understand that impulse i think you know many people would have a different feeling knowing when it's government
pj_wehry:
m
cyrus_farivar:
agency tracking your movements whether it's your physical movements or your movements online or collecting information that maybe you didn't think that they were collecting um so again i think part of that you know kind of two sides of the same coin in a way to me goes back to how in this country i would say you know most of us most of the time give pretty you know a wide birth give give a lot of deference to what private companies do because we value right google like provides a valuable service they provide you know services and products that i'm sure i both use every day um and we are sort of accepting of the fact that like yeah google probably knows a ton about me and what i do online and what i search for and where i am and you know things like that but i sort of say well that's the price i'm paying for using a service that is good you know so i don't know
pj_wehry:
yeah absolutely and it's an example i've used on here before but my day job is digital marketing and one of the like i'm sure you're familiar with this but one of he most classic cases of uh that might make people uncomfortable and give them some idea of the scope of the problem is the father who came into target um angry because his they were sending pregnancy adds
cyrus_farivar:
right
pj_wehry:
to his daughter and
cyrus_farivar:
right
pj_wehry:
she was sixteen
cyrus_farivar:
right
pj_wehry:
and then two weeks later he came back and said i'm he apologized because she was in fact pregnant
cyrus_farivar:
right
pj_wehry:
and so what uh and and i think there's an interesting thing here because a lot of times people are becoming more aware because of all the scandals with facebook and stuff about their browsing but another thing is just the incredible collating tools that are now available to company like the data bases that are made from just like i mean obviously amazon when you browse on their site they gather information but like wal mart when you buy stuff they track to your credit card and they have an entry on you and they have all their stuff and that's like that's the stuff that even as i was looking through your book that sprung out to me probably because i come from a digital marketing background like i'm like i know what what you can find out and it's scary right
cyrus_farivar:
yeah
pj_wehry:
but the like i had not i think someone had mentioned in passing like some facial recognition stuff but i'd never thought about the license plate recognition is that what
cyrus_farivar:
hm
pj_wehry:
like l p r
cyrus_farivar:
yep
pj_wehry:
um and so to me i mean there's a whole they obviously belong together a lot of the principles are going to be the same but there is some very distinct differences between like this very digital only experience and then the apps like kind of the way that technology starts to exist in the world with things like l p r know license plate recognition and and drones especially you know like all sudden like the digital world is invading the physical world if i can put it that way do so forgive me that was you know i went on for a little bit there but as i'm looking at this what are what is kind of the scope if you don't mind talking through like both the l p r side of things and the drone side of things like can you give people an idea of the scope of problem or the power that is available
cyrus_farivar:
a
pj_wehry:
to follow them
cyrus_farivar:
sure so l p rs are one of those technologies that i knew nothing about ten years ago and have become weirdly obsessed with since then
pj_wehry:
uh uh
cyrus_farivar:
it's a technology
pj_wehry:
yeah
cyrus_farivar:
that i think most americans don't know exist frankly and i don't blame them because not like it's not something like i don't watch a lot of like cop t v shows but i feel like you know even if you're a fan of law and order or
pj_wehry:
yeah
cyrus_farivar:
one of these types of shows like
pj_wehry:
m
cyrus_farivar:
l p rs are not something that comes up a lot and i feel like people's popular understanding of what modern policing looks like in practice even if you just see any again in any small town in america you poke your head just on the side of a police car you would know i think most people know that like most police cars at least ones i've seen it have computers in them right that's
pj_wehry:
right
cyrus_farivar:
not that's not a big deal and we know what police cars look like we know wat police officers look like we know the tools that they carry they carry guns they carry handcuffs they carry wake takes or radios maybe maybe they arry other types of you know tools that they need physical tools that they need to do their jobs and that's fine like i think we all understand that but i was really surprised to learn that it's pretty common now for for law enforcement to have mounted on police cars where i live in oakland california at last check there was a few dozen police cars that have the these roof mounted little they look like little strips of l d so like if you look in front of the light bari imagine you're like proto typical police car and then like in front of the light bar like red and blue flashing lights that were all familiar with there's like a little special like array of what looks like l d's that's the license play reader and what it's doing is it's capturing an incredibly high speed m sixty plates per second it's basically seeing every single plate that drives in every orientation backwards forwards sideways that the camera can see and what it's doing is it's running to it's capturing plates it's reading them and this is actually pretty easy to do because right license plates in this country have a very standard size the font is like a very specific size and a very specific width so it's actually for a computer to read it a hard um and so what they're doing is they're comparing these plates against a list of plates that the police are interested in this is often referred to as a hot list um right and so you can imagine like a situation where the police are looking for a car that is believed to be associated with you know an amber alert child abduction is interested in somebody who's fleeing i'm seeing is interested in somebody who has stolen a car right it's not it's not i think you know far fetched to imagine a list scenarios in which a police would legitimately want to go after a car that's fine i think most people object to that but to me what's interesting is that when you when you kind of drill down and you say well okay how many how many times it of all the plates that it's capturing when the machine is capturing these plates the machine neither the machine nor the officer behind the machine knows like is the one that i'm looking for in this haystack right is there a needle in this haystack and the answer is mo there's not right mostly most of us most of the time are doing what we do we drive around we go get tako's we go to ball games we go see our friends like we're just living our lives and that's and that's fine i think that so in other words the hit rate in my research shows that right so that the number of times a plate matches one on the on the hot list divided by the total number of plates captured the hit rate is like well under one percent so the overwhelming majority of the time it's kind of useless to the police or it doesn't help them in any kind of investigatory capacity but so then the interesting ting is right okay so the police are capturing all this data they're capturing they know that my plate was seen at a specific location at a specific time on a specific day and again depending on your perspective of whether you believe that your local law enforcement agency is well intentioned or ill intentioned you may or may not be you know raise an eyebrow at the fact that like your police department might know
pj_wehry:
oh
cyrus_farivar:
where you've been at various at various times again as just a normal law abiding average citizen i think all of us and this is where it gets down to kind of the surveilance and privacy question is like all of us engage in what i would what i would say are private but completely legal activities all the time right i know here in california right marana is legal basically and we have lots of mariana you know clint dispensary is all over town all over here in oakland but not everybody is super open about the fact that they may consume canabas if you work for the federal government you which and it remains a federal crime you may not want the federal government to know that that's what you're doing or that's where you've been there are lots of other businesses or you know you may not want the government to have a record that you went to a sex shop that you went to a canabis dispensary that you went to a strip club that you went to baseball game in the middle of the day and you did work like like there's lots of things that we all do right that you attended a religious service that you attended a meeting of a a that you went to a to a c a medical provider uh you know there's lots of lots of lots of activities that we all do um that you might that i would certainly not feel comfortable with their being like a permanent record of like oh yeah we saw your car and in front of this you know canabus dispensary on this day at this time or whatever so i think if we're going to allow
pj_wehry:
a
cyrus_farivar:
our law enforcement
pj_wehry:
ye
cyrus_farivar:
agencies to have these tools for
pj_wehry:
hm
cyrus_farivar:
good to
pj_wehry:
yeah
cyrus_farivar:
investigate and prosecute crimes
pj_wehry:
oh
cyrus_farivar:
i think we need to be mindful of what the capabilities of those s are and be mindful of how those tools are used and how to prevent misused because i think again going back to what i in earlier we have this fear that's kind of baked into our d n a as americans it's written you are founding documents we have this fear that and this is playing out in the news right now with the republican taking control the house the house has voted to investigate the government for for over reaching against the american people and they believe that they're modeling this after the church committee which was a nineteen seventies era you know house committee that did uncover a lot of really bad stuff that the government was doing it's the american people um investigating all kinds of civil rights groups the black panther as many many others and exposed a lot of like wrong doing by you know groups like the n s a and various other government entities and i think that's the kind of fear that we all live with to some degree or another
pj_wehry:
yeah and i think what you did as you requested like you did like a public records request
cyrus_farivar:
still
pj_wehry:
and was you were able to see all the places that they had seen your car right
cyrus_farivar:
yeah yeah that's right so with respect to with respect to the license readers again specifically yes that is something that i did i filed a california public records act request so every state has public records law at the federal level this is known as for the freedom of information act um and anybody you don't have to be us citizen you don't have t be a lawyer you on't hav to be a journalist you don't have you don't need any license or permission or anything but literally anybody can ask for information about about yourself you can ask for information about all kinds of other things but you certainly have a right to ask for information about yourself so anybody watching this you can go under your own state no public records law and write
pj_wehry:
yeah
cyrus_farivar:
to and i encourage people to do this it's really opening to
pj_wehry:
oh
cyrus_farivar:
to write a letter to and there's lots of formula temples that you can find on line that help you do this but you basically say you know i here's my name i am submitting a request under the state public records act you know i want you local law enforcement agency to provide me with all of the instances where you captured my car license plate and here's my license plate and i want you to search your record between you know you pick it start time right january first twenty twenty or whatever until whatever january first twenty twenty three whatever time frame you want um and hopefully they'll give you back record so this is exactly what happened o me so i filed this i filed this records request to the oakland police department about myself about my own car and came back with a bunch of like pictures of my license they're like tight cropped images of just the plate and a list of of g p s coordinates and dates and times and again like that is you know i don't think that i don't think that that the p d or at least i hope the p d has bigger fish to fry than worry about like what taco trucks i like to go to um
pj_wehry:
yeah
cyrus_farivar:
you know
pj_wehry:
yeah
cyrus_farivar:
but it is
pj_wehry:
ah
cyrus_farivar:
it does kind of make you wonder it's like well well
pj_wehry:
yeah
cyrus_farivar:
who's who's monitoring this and and again like i don't think personally that like the pad is after me personally but i do find it interesting given that you know
pj_wehry:
oh
cyrus_farivar:
oakland is a very complicated city as are many cities in this country and i understand the argument that law enforcement often makes whether it's in oakland or anywhere else saying like hey we need these tools to go after bad guys and i get that who is going to argue against going after bad guys we all want to go after bad guys but we also need to be mindful of government overreach we need to be mindful of like how these tools are used in practice um and i think that m yeah like you said one thing that any individual can do is to you know make them show their work i mean what hab data means is you know show me the data provide me the data that's what it means um and now i think that it's a way to shine a light on on again not not not assuming nefarious intent on the part of any given police department but just too understand like what's actually happening in your own town in your own county um i also filled another record request because i was surprised when the oakland police department gave me records on my own car i decided to ask for all of the records that they had ever captured all of the license plate records that they had captured and to my shock they provided it i mean i'm glad that they did but it was i wrote about this story for us technica years ago but but they provided me with a vast data base going back a few years of showing like you know this car was captured at this location and i was able to discern in some instances patterns of behavior right because this is of course prepandemic many more people were communing htbutlike if you see a car parked between the hours of nine and five you know office type neighborhood and then in the evening you see it in a residential type neighborhood there's a good chance that that car like you can tie those two things together right that you can say oh this car belongs to this person you know and one and i demonstrated this for a city council member here in oakland directly in front of the oakland city hall there are street parking spaces that are marked for the different city council district so they'll say like district one reserve parking district two reserve parking and i went to the district one city council person dan cob who is still on the city council and i knew his place because saw his car right outside
pj_wehry:
yeah
cyrus_farivar:
and i punched up his on on our search tool that we built i punched up his you know where his car was parked in his neighborhood and i was like do you live on this block and he yeah i do so so you know that that's that's what that means when when you build a tool like this that's what it means is you can learn you can learn all kinds of things about them buddy and like you said when you combine it with with what you were talking about with with the marketing behavior how people interact on line you can develop a pretty detailed picture of somebody again without you know breaking any laws so
pj_wehry:
i
cyrus_farivar:
so yeah
pj_wehry:
that's a that's stunning to me i didn't realize i must have missed that part where or maybe ou didn't put it in here i can't remember but that they gave you everyone else's data as well to me that's
cyrus_farivar:
yeah
pj_wehry:
like i mean all you needed someone license plate
cyrus_farivar:
m
pj_wehry:
and you could that kind of information is should not be made public i don't think you know what
cyrus_farivar:
yeah
pj_wehry:
i mean i
cyrus_farivar:
i
pj_wehry:
mean
cyrus_farivar:
mean and
pj_wehry:
i mean i don't i trust you sure
cyrus_farivar:
well that's kind
pj_wehry:
know
cyrus_farivar:
i mean it's
pj_wehry:
oh
cyrus_farivar:
interesting you say that it's interesting you say that because at the time
pj_wehry:
ye
cyrus_farivar:
that we did the story for
pj_wehry:
m
cyrus_farivar:
our technica and you can link to it or people
pj_wehry:
yeah
cyrus_farivar:
can find it um but we went back and forth my my colleagues and i about whether we should publish the entire data base or not and ultimately we decided not to we described
pj_wehry:
yeah
cyrus_farivar:
it we we showed what it could do we built a tool such that like i could because what it was was just essentially a massive spread sheet that's what it was that's the form
pj_wehry:
right
cyrus_farivar:
at it was given to me in but
pj_wehry:
yeah
cyrus_farivar:
it wasn't it was we created a tool for ourselves where i could punch in a given plate and then it would plot on a map showing where and when that you know that plate was seen so we didn't we didn't make that that tool pub but i think there is a an ongoing discussion around um information like that that that comes to light through often through acts of journalism whether it for somebody else um you know as to how much of that should or you know can be made public
pj_wehry:
yeah and so for
cyrus_farivar:
oh
pj_wehry:
me you know i'd love to talk a little bit
cyrus_farivar:
oh
pj_wehry:
about like some practical solutions than may be
cyrus_farivar:
oh
pj_wehry:
broadened out to what you think are the right principles here it seems to part of the problem here and you know i'm relatively new to this side of the discussion but is the permanency of the records right like um the idea that like literally uh in some ways the government is almost pre building cases against people right like uh you aren't like you if you do like and this idea that all this would be admissible in court would it
cyrus_farivar:
yeah well i mean it depends right i mean there's a like there's anything that we do i mean we live in a world where where yes there is a permanent record again whether it's physical i mean part of the question is like so we're talking specifically about license lay readers right there's a question of data retention how long does the government get to keep the fact that my plate was seen at a place at a certain time if i'm not if it's not connected to some criminal investigation and and it's interesting that there's no set rule on this at the time that i was reporting it may have changed but at the time i was reporting on this in oakland um that retention was six months so so the police could keep that
pj_wehry:
okay
cyrus_farivar:
record for six months um or sorry there was no rule and then they reduced it to six months and as far as i know it hasn't changed since and but if you go ask your local police department and then you ask you know three counties over you might find there's a different answer you might find that some some departments take the policy is like well we'll keep forever and like on the off chance that it might be useful in three years or whatever right and i think like a lot of us can relate to that storage is cheap anybody who uses ge mail uses the archive function on a le bas is right like
pj_wehry:
uh
cyrus_farivar:
why don't you delate this email
pj_wehry:
uh
cyrus_farivar:
well why should i there's no reason to like it's you know storage data is small storage is nearly infinite or cheap extremely cheap so why wouldn't you keep it i think that's kind of the thinking and then other you know agencies take the policy of like well we're only going to keep it for a year or six months or three months or a week or you know whatever and i think it's worth while to have a discussion amongst local leaders and amongst local policy makers police officers journalist activist lawyers people just like talk about like okay if you want to set it to forever what does that mean you know
pj_wehry:
yeah
cyrus_farivar:
and if you want to set it to on our what does that mean like you know and there's an you know maybe the answer in oakland is different than the answer in washington d c or in tampa florida
pj_wehry:
m
cyrus_farivar:
or something i don't know but i think it's worth having the conversation with with those people about where those limits should be
pj_wehry:
i mean opens so many there's so many ifferent ways that this branch is often to each other you don't mind my asking what what do you see are the most salient principles for guiding these discussions what what do you think would help the most
cyrus_farivar:
i mean i think there's a there's sort of a theory that that goes by something called privacy by design meaning that when you build a tool whether it's you know an online tool for consumers to use or whether it's you know a tool that a law enforcement agency might use is to try to kind of minimize the collection of the data and know specifically what you're collecting why your call who has access to it for how long for what reason um here in oakland and this is sort of the spoiling the ending of my own book but one of the things that we do here in oakland is we have something the privacy advisory commission which like a planning commission like a park commission like any other kind of city commission is sort of a sub entity of the city and acts here in oakland as an adviser a body to the city for the purposes of evaluating things that would impinge on privacy things that relate typically to surveilance most often that's the pole department saying hey we want to buy this tool or that tool for these reasons but they have to provide sort of an affirmative argument as to why they need it and come up with a policy to how they'll use it and and how they won't abuse it um and then they have to come back year after year and and say okay here's here was the outcome of that which i think is good and i think no more cities and communities and states should have something like that if possible where um because i think one of the reasons that people don't trust police in a lot of instant is is they just don't know what the police have or why the police have what they have i think if there's a and i've said this to oakland police officer so i was like you know i think i'd be really cool if you guys had like an open house once a year and let people see what a license plate looks like in real life and let them touch it and feel it and you no interact with it in some way and explain to people like it is um you know were you mentioned drones earlier like drones i think you could apply this formula to almost any type of tool that the police have again put it in front of people like explain it in a way that they can understand and have and put people at ease saying like okay yeah we do have a drone yeah we can fly it over everywhere city including your house um you know but we're not going to do that because the goernbecause the police department has very clear policies about right we only deploy it in these specific situations and it has to be approved by the highest levels of the police department and it has to be signed off and you know unless it's part of an investigation we delete all footage all recordings after ever a day a week whatever it is i think that would put a lot of people at ease is just like being transparent being straightforward with like here the tools that we have here's why we use them on i think that would that would really help so i think that i think that the principles that people can have is to kind of ask questions if this is a topic you're interested in and if anyone who is watching or listening to this is doing so presumably they are
pj_wehry:
uh
cyrus_farivar:
m i think
pj_wehry:
uh
cyrus_farivar:
a good way is to is to find out if you don't know already m what your local law enforcement agency has in the way of those types of tools we were talking ear about public records request that's a tool that is available to any person um you can ask for not just you know license plate cans of your own car you could ask for like you know i want all the invoices and contracts that your city signed with you know companies that make license plate readers or drone or anything right like you could ask for and you could find out like how much is your police department spending on drones every year i would bet it's more than you think
pj_wehry:
yeah
cyrus_farivar:
and and maybe that doesn't bother
pj_wehry:
yeah
cyrus_farivar:
you like maybe that's fine maybe right you see stuff in the news like fairly regularly now right the some law some police department will say oh we put up a drone some guy with flying a house and he stole a car and he did dad and you know and we caught him because of the drone and like okay like that's fine but i think people get a little bit more freaked out when it's like oh there was a political protest and the police were putting up drones and they were be using it to identify people engaged in lawful constitutionally protected behavior not committing crimes you know just attending a political protest of whatever politics they have um
pj_wehry:
right
cyrus_farivar:
you know i think people be disturbed one way or the other so um so yeah i think just finding out what your local community has how they use it um you know and if you may be you may be surprised to find out what you find out
pj_wehry:
well and you mentioned in here americans basic distrust of government but that hasn't stopped the american government from using these powers
cyrus_farivar:
yeah
pj_wehry:
to help those in power right like i mean we have
cyrus_farivar:
yeah
pj_wehry:
ah and so you know even as you mentioned that example it's it's that misuse that's signed off by people who have a vested interest in its misuse right when you you talk about like drones ide entifilike if you had someone in power
cyrus_farivar:
yeah
pj_wehry:
who the political protest was aimed at and they could send out drones
cyrus_farivar:
certainly
pj_wehry:
to identify people
cyrus_farivar:
certainly
pj_wehry:
right
cyrus_farivar:
certainly
pj_wehry:
um m and i'm thinking i'm not saying that that has
cyrus_farivar:
yeah
pj_wehry:
happened but i mean when we talk about things like some of the stuff that we've seen like for instance nixon you know even going back that far but it's not like it was that long ago right like we know
cyrus_farivar:
no
pj_wehry:
this stuff happens
cyrus_farivar:
absolutely absolutely and i think that's what our collective fear or concern is based on is based on real things is based on recent history you know abuses of the seventies that you're talking about and it's based on you know the stories and the real history that has been communicated to us from you know many generations ago um
pj_wehry:
yeah
cyrus_farivar:
an and that we still that we still live with right the fact that we are that we are governed by a document that's two hundred and fifty years old that we still continue to find relevancy in is kind of amazing man
pj_wehry:
yeah
cyrus_farivar:
and you know um yeah so i think i think that that these are issues that you know all of us collectively kind of grapple with and try to figure out and you know i think if we wanted to live in a world where there was no crime i think we would live in a totalitarian society right like that's that's sort of the trade off in a weird way right we sort of allow we collectively allow there to be a certain level of crime in exchange for no government entity is not kicking down our door whenever they want right that's the deal that we have and it's not perfect but that's the deal that we have
pj_wehry:
yeah yeah
cyrus_farivar:
and we try to set up rules and regulations to to inform those boundaries so
pj_wehry:
yeah and i love that you brought up the constitution because one of the things i did want to talk to you about mentioned privacy by design and i love that as a principle i think that's you know just being intentional is import and um about these discussions but where are we right now in terms of can you give a lay of the land from a legal perspective for the the current precedents and principles that you know you've talked about um things from the two hundreds being being used for not from two hundred years ago not the two hundreds that would be different
cyrus_farivar:
uh
pj_wehry:
from the two hundred years ago
cyrus_farivar:
h
pj_wehry:
being applied to this and then even stuff like it's cats versus united states right like when it comes to surveilance can you give our audience kind of a lay of the land of the current legal principles and precedents and what do you think are the next battle grounds from a supreme court stand standpoint
cyrus_farivar:
sure yeah i mean so so right and this is right so my book focuses on the use of technology and surveillance by the government a thing that a government entity whether it's your police amen or the f b or whatever is doing to americans um so the fourth amendment as i'm sure people know right protects against the right to unreasonable search and seizure the key question is unreasonable right the constitution doesn't say the government can never sirt you it says the government cannot do it unreasonably so so typically the way we do find what is or is not unreasonable is we have this thing that we call a search warrant or a seasure warrant right so it says hey you know judge we the klan police evirnment think that serve for or has stolen washing machines and we think that those washing machines are in his house and so here's why we think that because
pj_wehry:
ah
cyrus_farivar:
we saw him unloading a bunch of washing machines off a truck
pj_wehry:
my
cyrus_farivar:
and put them into his house and so we want permit and judge to go search his house and the judge says yep that sounds great to me go ahead and go do that and then the police have permission they have you know they can
pj_wehry:
oh
cyrus_farivar:
conduct a reasonable search of my house the the warrant describes the things to be searched the place to be searched and the things to be seized right it has to describe with particularity where and what and why the police think that they're going to find the thing that they're looking for so if they're looking for washing machines they're not supposed to then also go open my dresser drawer which could not contain a washing machine and find you know stacks of cash whatever else that is in you know my dresser drawer or whatever you know like there are rules about you know how things are supposed to be searched and the manner in which they're supposed to be to be done and then you start getting into weird kind of situations where like okay well what does it mean if you're not in your home or if you're doing something in your home where the government maybe can can monitor what's happening in your home from outside your home so this is this you know you mentioned a case called cats cats versus united states so this is a case that involve a nineteen sixties era gambler in can you hear me i lost the connection
pj_wehry:
start again right bring us back on reasonable seats search and seizure i definitely
cyrus_farivar:
yeah
pj_wehry:
want to hear your answer on this
cyrus_farivar:
so so the constitution says that the government cannot conduct an unreasonable search and seizure and it's really important i think to focus on the word unreasonable right the constitution does not say the government cannot search anything ever it just says they can't do it unreasonably usually we have a tool in this country called a search warrant or a seizure warrant that describe how and where and why and under what circumstances a thing can be searched for so if the oakland police department thinks that i have stolen a bunch of washing machines and that they're in my house right now i only have one washing machine as
pj_wehry:
ye
cyrus_farivar:
far as i know but
pj_wehry:
yeah
cyrus_farivar:
right so what they
pj_wehry:
oh
cyrus_farivar:
would do if they were investigating me is they would they would gather evidence they would monitor my movements they would take pictures of me they would you know see what i'm you know check out all the sketchy you know posts that i'm putting on craig's list or whatever of these awesome washing machines that i have and they would go to a judge
pj_wehry:
yeah
cyrus_farivar:
and they would say hey judge m here's why we think srusfarvrar stealing boatload of washing machines we want permission to search his house and here's why and here's where they are
pj_wehry:
yeah
cyrus_farivar:
and here's why we think that they're there and then the judge looks at that and says okay yeah that sounds that sounds fine go do that that is a reasonable search the government has taken the affirmative steps to present an argument to a judge a neutral magistrate as it's described in the constitution who says yes you can go do that cool great awesome i think most of us don't have a problem
pj_wehry:
oh
cyrus_farivar:
with the use of warrants in that way and also the constitution specifically says that the warrant should describe the the place to be searched and the thing to be seized right so it's not that the government can go to the judge and say we want to search his house for everything we want to search his house they have to say we want to search his house for this thing and here's where we think it's b and they're not allowed to go it if they're searching for washing machines they can't go and open my dresser drawer and you know rifle through my clothes because a washing machine isn't going to fit in my dresser drawer a reasonable place to look because it's not going to fit there um you know if i had if they come into my house and they're loing for washing machines and they see that i have drugs all over my dining room table that's a different story that's what they ca a plain view
pj_wehry:
yeah
cyrus_farivar:
doctrine which basically means like anything that's in plain view that's not hidden that
pj_wehry:
yes
cyrus_farivar:
they can see that's fair game so like if i if i have other illegal things in my house then that's that's a different story but then it gets weird when we enter and i describe some of these cases in my book it gets weird when the government wants to use a tool to maybe again depending on your view skirt the rules a little bit or or be aggressive in prosecuting criminal suspects so there's a case that i write about called kilo k y l l o which involves a guy in oregon who the police believed was growing mariana in his house and the way that they
pj_wehry:
s
cyrus_farivar:
eventually figured out that he was or the way that they confirmed their suspicions was they took a an inferred scanning device they stood on the street out side of his house and they pointed it at his house to figure out what is the thermal reading what what energy is you know invisible inferred energy is being given off by the grow lamps in his house that could be picked up by this by this device and they didn't have a warrant for that and the police argued that they didn't need a warrant because they were not in the house they were out on the street and they had a device
pj_wehry:
yeah
cyrus_farivar:
that could effectively peer through wall of this guy's house and figure out whether he had something that was giving off massive amounts of inferred heat and it turned out he was but ultimately the supreme court said no you can't do that you can't you going to
pj_wehry:
yeah
cyrus_farivar:
use a tool like this particularly when you're invading you know peering through the walls you can't you need a warrant
pj_wehry:
yeah
cyrus_farivar:
to do this and this is sort of the you know and one of the principles that they that they came back to
pj_wehry:
m
cyrus_farivar:
is a is a constitutional principle or spring court president i should say um that's known as the reasonable expectation of privacy so you mentioned this case called cat versus united states which is a really interesting story um and reasonable expectation of privacy i think is one of these phrases you know like that i think many of us have heard but maybe we don't totally know what it means or where it came from or why we why it exists you
pj_wehry:
yeah
cyrus_farivar:
know it's ike
pj_wehry:
yeah
cyrus_farivar:
separate
pj_wehry:
yeah
cyrus_farivar:
equal it's like one of these like legalistic phrases
pj_wehry:
oh
cyrus_farivar:
so reasonable explication of privacy means that it's a phrase that comes from this case cats the cats case which involves a guy in los angeles in the nineteen sixties who like to gamble and the way he would conduct his gambling would would be that he would walk down sunset boulevard and he would go to pay phones right imagine a big tall superman style pay phone and he would go into these pay phones and he would call his book and he would place bets on college sports and that's what he like to do and he drew he did this so much that he drew the attention of the l p d and of the f b i and eventually what they decided to do was to capture his the sound of his making these phone calls but they didn't wire tap the phone they didn't like do a kind of a technological trick to the phone itself what it was they placed microphones on top of the phone booths that he used which is kind of amazing actually like and i'm imagining
pj_wehry:
uh
cyrus_farivar:
like
pj_wehry:
uh
cyrus_farivar:
i don't have any pictures of this but
pj_wehry:
yeah
cyrus_farivar:
what i imagine is like right so you've got a phone booth that's like taller
pj_wehry:
yea
cyrus_farivar:
than a person it's pretty tall right it's probably like i don't know six and a half seven feet tall at least maybe bigger and we're talking about nineteen sixties technology so i'm imagining these gigantic reels of like tape right
pj_wehry:
uh
cyrus_farivar:
like actual like celafane
pj_wehry:
uh
cyrus_farivar:
audio tape write huge
pj_wehry:
yeah
cyrus_farivar:
things that are mounted somehow on the top of the phone booth and they had a team of agents who was watching him as he would walk from his from his apartment two these phone booths that you like to use and they would send a guy ahead and climb up the phone booth and presumably hit record because they were only interested in this one guy they weren't interested in recording
pj_wehry:
uh
cyrus_farivar:
everybody but that's just like
pj_wehry:
uh
cyrus_farivar:
i just
pj_wehry:
yeah
cyrus_farivar:
find that scene like so amazing that like a team of
pj_wehry:
yes
cyrus_farivar:
agents is like sending somebody like they're probably like i imagine that they're in like this is like the sixties so they're probably not
pj_wehry:
yeah
cyrus_farivar:
in like dick tracy fedora like you know i'm imagining it
pj_wehry:
oh
cyrus_farivar:
something like that
pj_wehry:
ah
cyrus_farivar:
anyway
pj_wehry:
yes
cyrus_farivar:
so
pj_wehry:
yeah
cyrus_farivar:
so they capture this guy making these calls and the argument that his attorneys made in
pj_wehry:
my
cyrus_farivar:
his case that eventually as you say went to the supreme court was hey you know a person has a quote reasonable expectation of privacy in a phone booth like you would have in your home like you would have in your
pj_wehry:
m
cyrus_farivar:
doctor's office like you would have in a hotel room like you would have in a taxi there places that we all go to that we all live in that where we where our rights are sort of at their highest where like there's the government has to clear a pretty high bar get a warrant to you know cross that line and so this is where this principle where this principle comes from but then the question is like okay we have a reasonable expectation of privacy in our home do we have it in public the supreme court says no you don't which is why we were talking about license by readers earlier right the reason why license readers can even exist legally speaking in this country is because the supreme court said in nineteen eighty two the year i was born before license players even existed that there is no reasonable expectation of privacy in public right and i don't think that idea is wrong in and of itself i would argue right like i don't think when i walk outside of
pj_wehry:
yeah
cyrus_farivar:
my house
pj_wehry:
yeah
cyrus_farivar:
if you're sitting across the street you're going to see me cool that's fine but you'll see
pj_wehry:
yeah
cyrus_farivar:
that i'm wearing a blue shirt fantastic but i don't think in nineteen eighty two any of the justices or very few of the justices i would guess could have imagined that
pj_wehry:
m
cyrus_farivar:
we would in a few decades you know enter a world where people's license plates are being captured at incredibly high speed where people's faces are being captured by facial reckon and cameras where people's movements and sounds are being captured by by drones and other types of technological tools and it and so i think that you when you're in public most people don't expect that they're going to be monitored in that way and so
pj_wehry:
yeah
cyrus_farivar:
so that creates kind of an interesting scenario where like where you know you when you're in public you know the government can basically do anything because that is as
pj_wehry:
right
cyrus_farivar:
as the supreme court and the constitution have defined it currently
pj_wehry:
m
cyrus_farivar:
ah
pj_wehry:
hm
cyrus_farivar:
you don't have a reasonable expectation of privacy in public when you are out and about you know conceivably right like if i'm walking around the street the police can like i'm not saying that this actually happens but like my reading of it is like yeah the police conceivably could put a drone over my head when i'm when i'm when i'm you know walking around biking around out in
pj_wehry:
yeah
cyrus_farivar:
public in a public space and i would have no there's nothing that would stop them from doing that again i hope the police department has better things to do and then
pj_wehry:
yeah
cyrus_farivar:
do that to me but
pj_wehry:
yeah
cyrus_farivar:
like legally they could they could do that n n as we as these technologies get more and more sophisticated every year get more and more you know capable can store vast vaster and vaster vaster is that even more vast amounts of data
pj_wehry:
yep
cyrus_farivar:
and and you know adding credible resolution with incredible detail
pj_wehry:
oh
cyrus_farivar:
and again when you combine when you combine various things people's online activity people's facial features you know i am and like in the not too distant future right were in the last i don't know five years or so there's been used of what's often called genetic genial yeah genet genealogy were using d n a samples from somebody who's you know abandoned a coffee cup on the side of the road they can use that to extract a d n a sample to show that oh yeah this person was the you know serial killer we did this here in california there was somebody called the golden state killer a couple of years ago was caught after many decades because of this exact thing that they used you know genetic analysis on discarded i think it was a coffee cup um right but you can imagine the world if like if we're right we're all shedding hair and skin cells things that that o would provide a definitive record right of where i've been and when i when i was there right if right now license late reader just says okay this car that belongs to me but maybe i wasn't driving
pj_wehry:
yeah
cyrus_farivar:
it maybe my wife was driving it or a lone to a friend or somebody it's not necessarily me if my d n a was at a place i was pretty pretty darn sure i was
pj_wehry:
yeah
cyrus_farivar:
there
pj_wehry:
right right right right
cyrus_farivar:
so like you know i feel like that whole question of life reasonable expectation or lack of reasonable expectation privacy in public is different it viewed through nineteen sixties lens to me
pj_wehry:
m
cyrus_farivar:
than it is viewed through a twenty twenty twenty twenty two three lens you know just given the level of sophistication of these technologies which again i think is what happened throughout the history of my book the fifty years that that i'm looking at from sixty seven c c even to twenty seventeen um
pj_wehry:
m
cyrus_farivar:
it's almost like a family tree legal cases and they and they sort of play off of one another and they and they spring from one another that's how the legal system works is staff of off of precedent but we don't have an inherent right to privacy in this country we don't have an inherent um you know we have certainly fourth amendment protections at the federal level but again like there are weird exceptions to that right we talked about the reasonal expectation privacy another one that comes up a lot and i talk about this i think a little bit in the book is right the border exception there are exceptions to the fourth mem and s border is one of them so if you if
pj_wehry:
m
cyrus_farivar:
you travel abroad and you come back into the united states probably you've you've had the experience of having your bag searched or maybe even your phone searched right and that gets into another whole weird set of questions is like
pj_wehry:
right
cyrus_farivar:
right so what happens you show up at you show up at san francisco airport and the border agent says okay we need to search your phone if if the oakland please stop me on the street here and say we need to search your phone and i say no i'm fully within my right to do that and there's not much they can do that they need it the spring quarter said you need a warrant to search a phone subject to arrest right again this is one of the cases written about in my book at the border it's a wholly different story right if they if they say to me hey we need to search your phone and i say no they
pj_wehry:
oh
cyrus_farivar:
can take it from me
pj_wehry:
yeah
cyrus_farivar:
and there's not much i can do because the supreme court has said yeah there's there's a border exception to the fourth amendment you know then there's a whole another question of like okay well my phones incrypted can the government force me to de crypt it can they force me to to divulge the password to my phone can they force me to use my faceprint to unlock the phone can they make me put my thought and i feel like nobody has like thumb things anymore on their phones
pj_wehry:
uh
cyrus_farivar:
that was like four years old now
pj_wehry:
uh yeah
cyrus_farivar:
but like you know like it
pj_wehry:
yeah
cyrus_farivar:
and then you go down this rabbit hole
pj_wehry:
yeah
cyrus_farivar:
and he's a different
pj_wehry:
yeah
cyrus_farivar:
situation i've talked to different lawyers who say right like for this reason this is why i don't i've heard people say like this is why i don't use biometrics to unlock my devices because m is be then we get into we've been taking about the fourth amendment then there's a question of the fifth amendment right the right to not self incriminate um and the law distinguishes things between of what you are and what you know you cannot be testify compelled to testify against yourself you cannot be compelled to divulge information that would potentially incriminate you so that's like things you know you cannot be deed you can be forced to give up a password you can be forced
pj_wehry:
yeah
cyrus_farivar:
to provide a d n a sample you can be forced to provide a handwriting example you can be forced to provide a fingerprint to provide a face print so like how often does this happen in the real world that often but
pj_wehry:
m
cyrus_farivar:
it
pj_wehry:
m
cyrus_farivar:
creates a weird set of circumstances so all that is to say is the law is changing um and i think this is one of the realizations that i came to through the process of writing this book which is that the law is always going to be behind right the technology is just move
pj_wehry:
m
cyrus_farivar:
too fast it's changing too
pj_wehry:
yeah
cyrus_farivar:
quickly um cities are trying to and the criminals criminals know
pj_wehry:
oh
cyrus_farivar:
about drones criminals know about
pj_wehry:
yeah
cyrus_farivar:
all this stuff criminals use bit coin right it's this kind of constant cat and mouse game various things that has happened for for decades if not centuries um so i think if we're concerned about you know we as americans are concerned about the overreach potential over of these technologies
pj_wehry:
oh
cyrus_farivar:
i think we have to be mindful of how they're used of like what restrictions exist and explain clearly to people like i said what they're for who uses them for how long for what purpose and i think you know
pj_wehry:
m
cyrus_farivar:
that would i think certainly put a lot of people's minds it is certainly mine now so
pj_wehry:
absolutely and so i want to be aware of your time and again thank you for coming on the show
cyrus_farivar:
sure
pj_wehry:
uh what what would be one take away or one practical thing that people could do with what you've told us today like what would you encourage most people like that that next step for people listening to this
cyrus_farivar:
i would say i would say you know regardless of whether you live
pj_wehry:
oh
cyrus_farivar:
in a big city or a small town or something in between i would say take five minutes of your time and search for like i would literally just punch into google like the name of your town your county and like privacy or privacy activist or privacy lawyer or privacy journalist something like that just try to figure out like who are the other people who are interested in these issues like you're in sit in a lot of times not always but a lot of times that might be an organization like the a c l u um here in san francisco we have another organization called the electronic frontier
pj_wehry:
m
cyrus_farivar:
foundation that deals with a lot of the intersections between law and privacy in technology u f f operates on a nation wide basis but they are based here in the bay area there are lots of other kind of local versions of of these types of organizations um so i would say connect with like minded people who maybe share your interest and values in that respect you may discover that they that some of those folks have already you know figured out that like your county sheriff has ten drones or whatever you might find that you know some you know nary journalist like me has requested
pj_wehry:
yeah
cyrus_farivar:
you know lots of data about sit plate readers or whatever and if you don't find if you if you live in a place where you have not been able to find like minded people that are interested in those things maybe you can be maybe you can be the first person maybe you be the person
pj_wehry:
m
cyrus_farivar:
who's following the records request like i said no special skill or permission or privilege or license or anything is required to file a record request um you know you can
pj_wehry:
yeah
cyrus_farivar:
find lots of tempts to do that if that's something that you want to do m you know sometimes it costs a little bit of money but it's not typically too expensive but but yeah i would say you know ask questions be nice
pj_wehry:
yeah
cyrus_farivar:
assume you know i tried assume good faith as much as possible you know i'd like to believe that that most law enforcement are are using these technologies to try to do their jobs better but i don't think that it's necessarily the job of the you know the cop on the street to be thinking about you know questions of where the boundaries of the law are and worry about what this or that you know court president is i'm sure they have lawyers that work for the police department who tell them what they can and can do um and you know i think it's up to all of us to figure out you know how we want our local governments how we want our national government to use those tools and i think that that you know people might find that that there is you know a uh an audience of people that that maybe share these concerns and i would encourage folks to go plug in with those communities and take it from there
pj_wehry:
great and practical wrap up thank you so much it's been
cyrus_farivar:
my
pj_wehry:
a pleasure
cyrus_farivar:
pleasure
pj_wehry:
having you on
cyrus_farivar:
thanks so much