1984, 20 Years Later

Due perhaps to some malicious fluke in the internal wiring of human nature, there’s nothing quite as satisfying as cruising (albeit only at a cool 15mph) through the EZ-Pass lane at a particularly large and heavily trafficked toll plaza, while dozens of cars slow to a gridlocked crawl around you. What you probably aren’t thinking about, however, as you revel in the glory of your Schadenfreude, is your divorce proceedings, 10 years down the line. There, your present-day fiancee (at that point your soon-to-be ex-wife) might be using records of your EZ-Pass transactions from way back in 2004 to demonstrate your already nascent pattern of infidelity, as exemplified by your frequent visits to your many on-the-side girlfriends.

Because, it turns out, EZ-Pass statements count as third party records, in much the same category as electricity or natural gas bills. The upshot of this is that each of these, in the eyes of the law, can be easily obtained through a subpoena process, circumventing altogether the sticky rules that have developed around the acquisition of a fourth-amendment search warrant or a wiretap. The specific procedural guidelines for acquiring a subpoena are quite complicated, and can be laid out in each instance by legislation, but in practice the rule tends to be “ask, and ye shall receive:” most requests for subpoenas, particularly those issued as part of a criminal investigation, succeed, and such subpoenas are generally nearly impossible to quash.

The trouble is, it isn’t just EZ-Pass statements and electricity bills. It’s easy to imagine the sort of information which, 10 years ago, was held by third-party entities about the average individual. The most invasive records might have been a phone bill or the odd credit card statement which, in a pinch, could have been used to place you at a certain location if you happened to buy something there. But the quantity of that information and the complexity of its character has grown exponentially with the rapid adoption of technology into our society. Now it’s literally impossible to fathom the depth of personal detail available just waiting to be freed from some corporate hard drive by the master keys of the judicial branch.

Consider, as a case study, everyone’s favorite now-publicly-traded search engine. Google’s privacy policy states explicitly that they collect limited “non personally-identifying information” about your queries. Among the content of this information may very well be (the policy is not entirely transparent so we can’t be sure) a connection between your unique Internet Protocol address (something which while not ‘personally identifying’ on Google’s behalf can, by Harvard, at the request of a court, be linked back to your person) and the nature and subject of each of your searches.

We don’t know what format these records are stored in, or whether they’re accessible to Google engineers. We don’t know for how long they’re stored, or whether they’re backed up on tape. What we do know, however, as their privacy policy is quite clear on this point, is that if Google stores this information, and if it’s accessible to them, that they will happily share it with a court if they’re asked to do so by law—for example, by way of a subpoena. Worse still, neither Google nor the government is even compelled to let you know that the information is even being sought after.

Most reasonable people stop at this point and say something like “that’s a little creepy, but so what? My Google search history might be personal, and I might not want my mom to see it, but I fail to see what use it could be in legal proceedings.” But surely, there are isolated cases: perhaps the information from your search record could be used to demonstrate prior knowledge that some activity you engaged in was illegal. Or perhaps it could invalidate some other alibi by demonstrating that you knew something about the scene of a crime that you couldn’t otherwise have known.

The real danger, though, isn’t just in situations where you’re guilty of a crime and trying to lie about it. The real danger is when you’re innocent, and yet the government can with a very light amount of due process and entirely without demonstration of probable cause bring to the surface personal details which are at best humiliating and at worst could do you long term harm. This isn’t all just theory, either: despite fervent efforts by the ACLU and the Electronic Frontier Foundation (EFF), Yahoo! has, for example, responded to a number of subpoena requests by corporations for the names of employees who had been criticizing company management pseudonymously on stock market discussion boards.

Maybe you don’t use Google. That’s okay. Also out there is a history of every door you’ve swiped into at Harvard, at least over the past few weeks - while it’s not clear exactly what information the card office is storing or for how long, it does appear to be the case that HUPD has access to this material in some capacity, which means it must be hanging around somewhere. Also when and where you ate dinner last night. And what you’ve bought at the Coop, and what you’ve sold on E-Bay, and maybe a list of what books you’ve taken out from the library (and how much you owe in overdue fines on them). The list is endless.

Unfortunately, however, my argument reaches a lukewarm crescendo: I don’t know how we solve this ‘problem.’ Surely the answer is not to become technophobes and retreat into caves. It seems unlikely (though not unimaginable) that the courts would reinterpret the guidelines for some kinds of subpoenas and make them more challenging to acquire, given how much functional precedent lies behind the current procedures. For now, then, the best policy might well be one of prudence. It pays to be aware of just how vulnerable the details of our private lives could quickly become as we give away more and more of them to third-party entities in exchange for convenient services. It pays to wonder, if just a little, whether a particular search might come back to haunt you, or who might know that you ate dinner at Adams in violation of interhouse restrictions. And maybe, for now, it pays for the unfaithful among you to wait the extra 3 minutes at the toll booth on the Mass Pike, particularly when driving down to New Haven every weekend to visit that girl you met at the Yale Game.

Matthew A. Gline ’06 is a physics concentrator living in Quincy House. His column appears on alternate Mondays.