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Date: Thursday, 17 Jul 2014 15:33

I really wanted to like this initial effort from Represent.us more than I did.

It’s a good effort, marred by some sophomoric stuff. Actually, I like the straight pitch better:

I wonder how they will play in Kentucky? Although facially neutral, to the extent they work these ads have to hit the incumbent worse than the challenger.

Author: "Michael Froomkin" Tags: "2016 Election"
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Date: Thursday, 17 Jul 2014 01:17

There’s been a lot of news recently about the dire effects climate change can have on Miami, yet not only has the risk not been priced into real estate but values are rising. What’s up? Are climate change deniers that rich, or is something else going on? Is the risk seen as so far out as to be discounted to zero?

It’s flat here, there’s a lot of coastline, and a sea level rise of only a few feet would turn Coral Gables into New Venice. Even a foot and a half — which apparently has a decent change of happening in the next decade or three — would be very bad for Miami Beach, and also for much of South Florida in that it could impact water supplies and swamp power plants.

How then to explain why none of this is priced into the real estate market? Not only are house prices mostly going up after perhaps over-reacting to the the foreclosure crisis, but so too are waterfront land prices, as evidenced by this $100 million/acre sale of the last piece of undeveloped waterfront in downtown (total price for 1.25 acres was $125 million).

Yes, it could be a bubble. Yes, it could be the musical chairs phenomenon where the buyer thinks they can flip it, or develop it, before the music stops. Or it could be that the buyers watch too much Fox News, or have their own climate scientists.

I’d really like to know what’s going on here — if only because I (co)own a house. Any ideas?

Author: "Michael Froomkin" Tags: "Econ & Money, Miami"
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Date: Tuesday, 15 Jul 2014 20:41

“Weird Al” Yankovic – Word Crimes:

Almost all great stuff. I disagree about the Oxford comma — I think it’s essential for legal writing. (I also have some other legal writing tips.) Catchy tune, though.

Author: "Michael Froomkin" Tags: "Law School"
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Date: Monday, 14 Jul 2014 15:33

Joyeux anniversaire à la République Française (et à moi).





Author: "Michael Froomkin" Tags: "Personal"
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Date: Monday, 14 Jul 2014 15:14

We’ve posted a program for Jotwell’s 5th anniversary conference on “Legal Scholarship We Like and Why It Matters” and also have opened up registration. The conference will be Nov 7 & 8, 2014 at the University of Miami School of Law.

If you are planning on coming, you can take advantage of the UM rate at local hotels. The main conference hotel is the Sonesta in Coconut Grove, but the UM discount also applies to the other hotels on the list.

In case you are rationing clicks, here’s the program:

JOTWELL 5TH anniversary Conference

Legal Scholarship We Like and Why It Matters

University of Miami School of Law
Nov 7-8, 2014

Register To Attend
“Legal Scholarship We Like and Why It Matters”

Friday Nov 7

1pm Welcome
Dean Patricia White, Welcome
A. Michael Froomkin, A Little About Jotwell

1:15 – 2:00
Raizel Liebler, Jessica de Perio Wittman and Kim Chanbonpin. Collaboration, Knowledge Production, and Legal Scholarship

2:15- 3:00
Patrick Gudridge, Past Present

3:15 – 4:30 Counterpoint
Jeanne Schroeder and David Carlson, Improving Oneself and Ones Clients; Not the World
Neil Buchanan, Legal Scholarship Makes the World a Better Place

4:45 – 5:30 Keynote Address
Margaret Jane Radin, Then and Now: Developing Your Scholarship, Developing Its Audience

5:30- 6:30
Reception, Student Lounge

7:00 ->
Conference Dinner

Sat Nov 8

9:30 – 10:45 Counterpoint:
James Chen, Modeling Law Review Impact Factors as an Exponential Distribution
Patrick Woods, Stop Counting (Or At Least Count Better)

11- 11:45
Benjamin Keele, Taking Lessons from Science to Improve Digital Legal Scholarship
[via remote participation]

Steven L. Winter, When Things Went Terribly, Terribly Wrong Part II


1:45 – 2:30
David Millon, Legal Scholarship and the Delaware Judiciary

2:45- 3:30
Frank Pasquale, Reviving Political Economy: A Case Study in Legal Academics’ Dialogue with the Social Sciences

3:45 – 4:30
James Grimmelmann, Scholars, Teachers, and Servants



Accepted papers from scholars unable to attend:

Angela Mae Kupenda, Personal Essay–On the Receiving End of Influence: Helping Craft the Scholarship of My Students and How Their Work Influences Me

All papers will be posted at Jotwell.com

Author: "Michael Froomkin" Tags: "Jotwell, Talks & Conferences"
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Date: Saturday, 12 Jul 2014 22:21

Something reminded me of Peter Cook’s Coal Miner Sketch today. The first time I heard it I was literally gasping from not getting air due to laughing so hard.

I suppose I should warn the sensitive that there are occasional mentions of nudity.

(Here’s a different, later version. It’s funny too, and shorter. I think it may be closer to the version I first heard.)

Author: "Michael Froomkin" Tags: "Completely Different"
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Date: Saturday, 12 Jul 2014 20:16
  1. Someone will show me what to do.
  2. I can make the rules work for me.
  3. I can get an exception to the rules.
  4. I can change the rules.

Sometimes I want to ask my students, “Which are you?” or “Which do you want to be?” But the one time I tried something of the kind, it didn’t go over all that well.

Even so, they’re probably good questions in many situations.

Apologies for sounding like Seth Godin.

Incidentally, there’s arguably a fifth level of empowerment — “I can destroy the system” — but that’s either a special case of #4, or out of scope for the law-abiding. And I suppose there’s a zeroth level too, something on the order of “I’ll sit here alone and starve,”1 which could be clinical depression. OK, that was less Godin-like.

  1. Not to be confused with “I’ll just sit here alone in the dark,” which is the answer to the question “How many Jewish mothers does it take to change a lightbulb?” and is probably an example of level 2.
Author: "Michael Froomkin" Tags: "Law School"
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Date: Thursday, 10 Jul 2014 16:19

This strange sign popped up on an official signpost less than two blocks from where I live:


In case it’s too small to read you can click for a bigger one, or take my word for it that at the top it says, “Working in partnership to deter crime.”  Then it has a Coral Gables Police badge next to the seal of the City of Coral Gables, along with the logo for “SmartwaterCSI”.  And the sign says, “Theives Beware.  You are entering an area where Property is forensically protetcted by SmartWater®.”

If you follow the URL on the sign and click around about, eventually you get to the “about” Smartwatercsi page which informs me that,

SmartWater is an asset protection system in the form of a clear liquid which contains a unique forensic code that is extremely robust and guaranteed to last a minimum of 5 years within all weather conditions. It is applied to items of value – personal, commercial, and industrial – which are frequently the target of theft.

The non-hazardous patented liquid leaves a long-lasting identifying mark that is invisible except under ultraviolet black light. Law enforcement officials take the smallest micro-fragment of SmartWater from stolen property and send it to SmartWater’s forensic laboratories, where it is scientifically analyzed to identify the owner.

As a result, thieves who make the mistake of targeting SmartWater marked-assets face a far greater risk of successful prosecution. Ultimately, as the statistics over the past 15 years exhibit, crime is reduced and the public enjoys a safer environment.

More clicking brings me to the price list: $100 (well, $99 before tax) for a bottle of the stuff and a one-year license — apparently you have to keep paying the $100 every year to maintain your entry in their database, even though the coating is supposed to last for five years. Or you could pay $200 (per year!) for a what I suppose is a larger bottle that does your car, or at least key parts of it that don’t have a VIN. Oh yes, you also get stickers to show off you think you have lots of valuable stuff worth stealing deter really up-to-date thieves.

Nowhere on the Smartwatercsi site (that I got sent to by the sign on public land) does it reveal a secret disclosed in this video that I found by doing some Googling: apparently by calling 305-441-5760 Coral Gables residents can get a “smartwater kit” for $30 (no mention of the annual fee after that, though). I called that number and got a recording telling me I’d reached the Coral Gables Citizens Crimewatch, they were unable to answer the phone but they are there to serve and assist me in any way, so I should my name and number and they’d get back to me.

More Googling revealed a Coral Gables police press release dated Feb. 12, 2014 that says you should call 305-476-7957 for the $30 offer. (It may have come out in February but this is the first I ever heard of it.) That number took me to what proclaims itself as the Coral Gables Police Department Smwartwater hotline. I’m going to rate the hotline water temperature at only lukewarm, given that this too was a recording that wanted my name and number and would get back to me.

So what I want to know — since both Wikipedia and Bruce Schneier tells me it’s for real1 — is

  1. Are these guys paying the City for the right to put up these signs? Or is the idea that we get the 70% discount in exchange for a lot of publicity on official buildings and spaces
  2. How many people in Coral Gables have actually signed up for this?
  3. Is the $30 Coral Gables price a one-time fee, or will there be annual charges too? Is there enough to cover your car? Or at least those headlamps that get stolen so often? Do you get all the stuff in the $100 pack or just a bottle and applicator?
  4. If there are ongoing annual charges, does the City have any guarantees about future price increases? Is there a danger Smartwatercsi will raise the price of the required annual user fee (if there is one) once they have a big installed base?
  5. Does the fact that a sign appeared nearby mean someone around here actually bought the stuff?
  6. If so, did they pay the $30 or the $100?
  7. Has anyone ever paid $100/year for this?
  8. Why don’t the signs–on public land, presumably set up with the City’s permission–direct you to a web page which discloses the Coral Gables discount?
  9. If someone from Coral Gables goes to the Smartwatercsi site not knowing about the discount and tries to make a purchase, will Smartwatercsi tell them about it?
  10. Does the Smartwater beverage company know about this?

Actually, I’m kidding about the last one – a drink and a crime deterrent are sufficiently dissimilar to make a likelihood of confusion as to the mark highly unlikely, and of course the website (but not the product) has “CSI” at the end of it. Wait, does the TV show know about this?

  1. Although Bruce also came up with a great hack to misuse it:
    The idea is for me to paint this stuff on my valuables as proof of ownership. I think a better idea would be for me to paint it on your valuables, and then call the police.

Author: "Michael Froomkin" Tags: "Coral Gables"
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Date: Monday, 07 Jul 2014 15:26

Three of my colleagues are organizing what looks like a super conference to be held here in Miami on November 14-15 (just a week after the Jotwell conference about which more soon).

An Uncomfortable Conversation: The Universal and the Particular — Vulnerability and Identities II” is organized as part of series of workshops on ‘Vulnerability and the Human Condition’. The full call for papers is online and responses are due by July 28. Here’s part of the CFP:

In recent years, key legal decisions in voting rights, gay marriage, and affirmative action have destabilized the identity-based anti-discrimination frameworks long used to pursue equality and social justice in the United States. The Supreme Court, for example, has been deregulating race, declaring in Schuette and in Shelby that the state’s involvement in the eradication of racial inequality and the protection of marginalized identities is now less imperative. Moreover, the Court seems reluctant to use the language of identity, instead framing gay and lesbian claims in the language of privacy, liberty and dignity. Yet, popular arguments for redistributive and reparative public policies remain steadily focused on traditional identity categories. For example, The Atlantic magazine has featured a series of essays on racial reparations to Blacks. Similarly, the #YesAllWomen twitter trend has drawn attention to normalized violence against women, even as the hashtag #SolidarityIsForWhiteWomen created virtual space for feminists of color to question what they perceive to be the dominance of white feminist voices in mainstream culture and gender politics. Amidst these complex legal, social and political changes comes a shift in academic discourse as well, with some critical theorists suggesting that “traditional” identity categories based on individual characteristics, such as race or sex, are inadequate to capture social problems that transcend such categories. Instead, they argue that focus should rest on paired social identities, such as employer/employee or parent/child – categories or statuses that are forged in social and institutional relationships and convey the allocation of legally sanctioned and shaped power and privilege.

These legal and social developments highlight the importance of building on the first Vulnerability and Identities Uncomfortable Conversation to further consider and assess specific identitarian frameworks (including both traditional and social identity formations) as well as more universal paradigms, such as human rights or vulnerability. This second conversation continues an investigation of the relationships between particularity and universality, with an emphasis on the ability of concepts like vulnerability and identity to deepen existing critiques of legal liberalism and advance our understanding of substantive justice. Central to this investigation is an evaluation of the impact of critical theory on understanding the state and its institutions, particularly their role in promoting human resilience through the provision of education, employment and training, healthcare, family structure, cultural recognition, and social welfare more broadly. In considering both the universal and identitarian approaches, we ask how they differently frame systemic disparities in access, opportunity and resources.

I wish I had time to do a paper for this based on my ongoing research on regulation of identification, but what with the Jotwell conference being a week earlier, realistically it’s not going to happen. I’m definitely going.

Author: "Michael Froomkin" Tags: "Talks & Conferences, U.Miami"
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Date: Monday, 07 Jul 2014 01:39

The Misguided Freakout About Basement-Dwelling Millennials

More than 15.3 million twentysomethings—and half of young people under 25—live “in their parents’ home,” according to official Census statistics.

There’s just one problem with those official statistics. They’re criminally misleading. When you read the full Census reports, you often come upon this crucial sentence:

It is important to note that the Current Population Survey counts students living in dormitories as living in their parents’ home

Spotted via Calculated RISK.

Of course, living in South Florida, we don’t even have a basement…

Author: "Michael Froomkin" Tags: "Econ & Money"
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Date: Monday, 07 Jul 2014 01:30

I’ve been away for a couple of weeks, but now I’m back–and even over jet lag.

I used to announce when and where I was going before I left, but a commentator here once chastised me for inviting burglars to the house. Despite my doubt that any readers of this blog are potential burglars or that burglars clever enough to do searches on blogs looking for ‘away’ type posts would bother burglarizing me, I’ve been shy about announcing everyone-in-the family departures ever since. Watch what you say in the comments – I’m paying attention.

Caroline and I had planned to celebrate our 25th wedding anniversary by going to Paris, but life is what happens when you’re busy making other plans, and just before we would have gone, her father, who had suffered a long illness, died. There was a lovely service in a (partly) 13th-century edifice.

We will figure out some way to celebrate our whatever-you-call-it in due course. (She still got her present.)

Author: "Michael Froomkin" Tags: "Personal"
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Date: Sunday, 29 Jun 2014 11:11
Author: "Michael Froomkin" Tags: "Econ & Money"
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Date: Tuesday, 24 Jun 2014 21:52

Took a long time, but the courts are coming around. Here’s a major decision from Judge Anna Brown in the Latif v. Holder case. (Via Just Security Blog.)

Author: "Michael Froomkin" Tags: "Law: Right to Travel"
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Date: Tuesday, 24 Jun 2014 19:47

Seems like every time the Miami-Dade Public Library system has a computer upgrade, their nifty search plugin gets lost in the shuffle. The MDPLS website recently had a major face-lift, with equivocal results on the desktop, but a much better look on my cell phone. And yes, again, the link to the search plugin vanished. And again I wrote in to complain. And again they were very very courteous in replying — I got three emails in less than two weeks, each apologizing for the delay in resolving the issue.

And now there is a new Library Tools page, with a link to install the MDPLS Quick Search browser plug‑in.

This is the same library system whose budget the Mayor keeps slashing by the way. The library is one of the rare cultural successes of Miami-Dade county — and if you live here MDPLS deserves your support.


Author: "Michael Froomkin" Tags: "Uncategorized"
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Date: Monday, 16 Jun 2014 17:54

As far as I can tell, this nutty video is a genuine product of the Republican Party.

Perhaps they have so much money now after Citizens United that they don’t care how they spend it? And, yes, the “HRC Squirrel” seems to be something they plan to run with.

Author: "Michael Froomkin" Tags: "2016 Election"
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Date: Wednesday, 11 Jun 2014 15:18

Author: "Michael Froomkin" Tags: "Personal"
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Date: Friday, 06 Jun 2014 17:42

More evidence that the cypherpunks were right, this time in the Guardian:

Vodafone, one of the world’s largest mobile phone groups, has revealed the existence of secret wires that allow government agencies to listen to all conversations on its networks, saying they are widely used in some of the 29 countries in which it operates in Europe and beyond.

–Juliette Garside, Vodafone reveals existence of secret wires that allow state surveillance. Wires allow agencies to listen to or record live conversations, in what privacy campaigners are calling a ‘nightmare scenario’

Author: "Michael Froomkin" Tags: "Surveillance"
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Date: Friday, 06 Jun 2014 15:48

Lorrie Faith Cranor put me on to this new site she’s built, that allows you to compare banks according to their privacy policies.

It’s a great tool, but not a great reality. Here, for example, is what I got when I searched for large banks in Florida with adequate privacy policies (allowing opt-out from all categories of information sharing):

Search result

Author: "Michael Froomkin" Tags: "Econ & Money, Law: Privacy"
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Date: Thursday, 05 Jun 2014 18:26


Author: "Michael Froomkin" Tags: "Internet, Surveillance"
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Date: Sunday, 01 Jun 2014 01:19

I was recently asked to contribute to a set of essays being assembled in honor of the Electronic Privacy Information Center‘s 20th anniversary. Here’s a draft:

Pseudonyms by Another Name: Identity Management in a Time of Surveillance
A. Michael Froomkin
Laurie Silvers & Mitchell Rubenstein Distinguished Professor
University of Miami School of Law

Identity Management looms as one of the privacy battlegrounds of the coming decade. The very term is contested. In its most minimal form it means little more than keeping secure track of login credentials, passwords, and other identity tokens. The more capacious version envisions an ‘identity ecosystem’ in which people’s tools carefully measure out the information they reveal, and in which we all have a portfolio of identities and personae tailored to circumstances. What is more, in this more robust vision, many transactions and relationships that currently require verification of identity move instead to a default of only requiring that a person demonstrate capability or authorization.

A privacy-protective Identity Management architecture matters because the drift towards strong binding between identity and online activities enables multiple forms of profiling and surveillance by both the public and private sectors. Moving to a better system would make a substantial part of that monitoring and data aggregation more difficult. Thus, a privacy-protective Identity Management ecosystem has value on its own or as a complement to a more comprehensive reform of privacy protection, whether EU-style or otherwise. Importantly, given present trends, a reformed ID ecosystem would protect privacy against private monitoring and against illicit public sector surveillance also.

In the US the present and future of privacy seems to fall somewhere between grim and apocalyptic. The NSA seeks to capture all digital data. Law enforcement agencies club together to share surveillance data in fusion centers. Corporate data brokers find new ways to collect and use personal data. Yet, it seems all too likely that data-gathering will remain largely unencumbered by EU-style privacy regulation for the foreseeable future. Data privacy is being squeezed by a technological pincer composed of multiple advances in data collection on the one hand and rapid advances in data collation on the other. Big Data gets bigger and faster, and is composed of an ever-wider variety of information sources collected and shared by corporations and governments.

The catalog of threats to privacy runs from the capture of internet-based communications, to location and communications monitoring via cellphones and license plate tracking. Effective facial recognition is on the horizon. Both public and private bodies increasingly deploy cameras in public, and process and store the results; increasingly too they share data – or at least the private sector shares with the government, whether willingly or otherwise. Plus, as people become more used to (and more dependent on) electronic social and economic intermediaries such as Facebook, Twitter, Instegram, Amazon, and Google, they themselves become key sources of data that others can use to track and correlate their movements, associations, and even ideas – not to mention those of the people around them.

In an environment of increasingly pervasive surveillance of communications, transactions, and movements, the average US person is almost defenseless. Legal limits on data collection tend to lag technical developments. As regards private-sector collection, the dominant largely laisser-faire theory of contract means that privacy routinely falls in the face of standard-form extractions of consent. As regards data collection in public and also data use and re-use, First Amendment considerations might make it difficult to outlaw the repetition of many true facts not obtained in confidence. Furthermore, there is relatively little the average person can do about physical privacy in daily lives. Obscuring license plates is illegal in most states. Many states also make it a crime to wear a mask in public, although the constitutionality of that ban is debatable. Most cell phones are locked, rooting them is neither simple nor costsless, nor does it make it possible to solve all the privacy issues.

Electronic privacy has for years seemed to be an area where privacy tools might make significant dent in data collection and surveillance. Unfortunately, cryptography’s potential is yet to be realized; disk encryption software now ships as an option with major operating systems, but encrypted email remains a specialist item. Cell phones leak information not just via location tracking but through the apps and uses that make the devices worthwhile to most users. Estimates suggest that when one counts senders and recipients, one company – Google – sees half the emails sent nationally. And we now know beyond a reasonable doubt that the NSA has adopted a vacuum cleaner policy towards both electronic communications and location data.

One of the first papers I wrote about privacy, back in 1995, contrasted four types of communications in which the sender’s identity was at least partially hidden. Listed in declining order of privacy protection they were: (1) traceable anonymity, (2) untraceable anonymity, (3) untraceable pseudonymity, and (4) traceable pseudonymity. Encouraging untraceable anonymity has for years seemed to me be one of the best routes to the achievement of electronic privacy. “Three can keep a secret if two of them are dead”: If people could transact and communicate anonymously, then the exchange would by its nature remain outside the ever-expanding digital dossiers. But even though we have increasingly reliable privacy-enhanced communications through systems like Tor, and even though at least a segment of the public has demonstrated an appetite for semi-anonymous cryptocurrency (cf. the Bitcoin fiasco), the fact remains that for most people most of the time, anonymous electronic communication, much less anonymous transactions, are further and further out of reach because tracking and correlating technologies are getting better all the time. Whether due to the use of MAC numbers to track equipment, cookies and browser fingerprints to track software and its users, or cross-linking of location data with other data captures be it phones, faces, loyalty cards, self-surveillance, the fact is that anonymity is on the ropes even before we get to the various impediments in the US, and even more in other countries, to real anonymity.

A focus on Identify Management involves a shift from anonymity to pseudonymity. Plus, if one is being realistic about the legal environment, any robust identity management likely will have substantial traceability in it. Useful, attractive, Identity Management tools can only exist if we first create a legal and standards-based infrastructure that supports them. In the US, at least, the legal piece of that infrastructure will require action by the federal government. Although actors within the Obama Administration have signaled support for strong identity management in the “National Strategy for Trusted Identities in Cyberspace (NSTIC)“, not all parts of this Administration are speaking in unison. Worse, the early signs are the NSTIC implementation will fall far short of its potential.

NSTIC is almost unique among recent government pronouncement about the regulation of the Internet domestically.1 The typical government report on cyberspace is long on the threats of cyber-terrorism, money laundering, and (sometimes) so-called cyber-piracy (unlicenced digital copying), and gives at most lip service to the importance of privacy and individual data security. The exceptions are reports on the dangers of ID theft – which seem mostly to stress caution in Internet rather than secure software – and NSTIC itself. NSTIC envisions an “Identity Ecosystem” guided by four key values:

  • Identity solutions will be privacy-enhancing and voluntary
  • Identity solutions will be secure and resilient
  • Identity solutions will be interoperable
  • Identity solutions will be cost-effective and easy to use

These are good goals, and to realize them would be a substantial achievement. Even if it is limited to cyberspace – in other words, even if it does not directly address the problems of surveillance in the physical world – in this list lie the seeds for an ‘ecosystem’ based on enabling law and voluntary standards that could very substantially enhance data privacy by allowing people to compartmentalize their lives and by creating obstacles to marketers and others stitching those compartments together.

The problem that NSTIC could solve is that without some sort of intervention both the interests of marketers, law enforcement, and (in part as a result) hardware and software designer most frequently tend towards making technology surveillance-friendly and towards making communications and transactions easily linkable. If we each have only one identity capable of transacting, and if our access to communications resources, such as ISPs and email, requires payment – or even just authentication – then all too quickly everything we do online is at risk of being joined to our dossier. The growth of real-world surveillance, and the ease with which cell phone tracking and face recognition will allow linkage to virtual identities, only adds to the potential linkage. The consequences are that one is, effectively, always being watched as one speaks or reads, buys or sells, or joins with friends, colleagues, co-religionists, fellow activists, or hobbyists. In the long term, a world of near-total surveillance and endless record-keeping is likely to be one with less liberty, less experimentation, and certainly far less joy (except maybe for the watchers).

Robust privacy-enhancing identities – pseudonyms – could put some breaks on this totalizing future. But in order for identities to genuinely serve privacy in a new digital privacy ecosystem, these roles need to have capabilities to transact, at least in amounts large enough to purchase ISP and cell phone services. And we need a standards that ensure our hardware does not betray our identities: using different identities on the same computer or the same cell phone must not result in the easy collapse of multiple identities into one. Thus, given the current communications infrastructure, computers and phones must have a way of alternating among multiple identities, down to the technical (MAC, IPv6, and IMEI number) level.

In its most robust form, we would have true untraceable pseudonymity powered by payer-anonymous digital cash. But even a weaker form, one that built in something as ugly as identity escrow – ways in which the government might pierce the identity veil when armed with sufficient cause and legal process – would still be a substantial improvement over the path we are on. It is possible to imagine the outlines of a privacy-hardened identity infrastructure that fully caters to all but the very most unreasonable demands of the law enforcement and security communities. In this ecosystem, we would each have a root identity, as we do now, and we would normally use that identity for large financial transactions. In addition, however, everyone would have the ability to create limited-purpose identities that would be backed up by digital certificates issued by an ID guarantor – a role banks for example might be happy to play. Some of these certificates would be ‘attribute’ certs, stating that the holder is, for example, over 18, or a veteran, or a member of the AAA for 2015. Others would be capability certs, much like credit cards today, stating that the identity has an annual pass to ride the bus, or has a credit line to draw on. (There could be limits on the size of the credit line if there are money laundering concerns, although several banks already offer an option of throw-away credit card numbers for people concerned about using their credit cards online; those cards, however, carry the name of the underlying card-holder while in a privacy-enhanced ID system they would not need to.) We might define a flag that distinguished between personae that are anchored to a real identity and those that are not; the anchored ones would deserve more trust, even if we didn’t know who was behind them.

In time, we would learn to interact online through virtualized compartments – configurable persona. Doing so would enable a stricter, cryptographically enforced, separation between work, home, and play. It would also provide for defense in depth against identity theft – if someone, say, broke into one’s Facebook persona, the attacker would be able to leverage this to the work persona. Furthermore, there would be less need for tight security controls imposed at work to limit (or monitor) private personae – already an increasing problem with corporate-issued cell phones and laptops.

Even this – a much watered-down recipie for limited privacy – is a tall order in today’s United States. It is hard enough to persuade even democratic governments of the virtues of free speech, and even harder to find any enthusiasm for the freer speech that comes from strong pesudonyms. When one gets to the even freer speech that comes from untraceable anonymity, governments get cold feet – and when money is involved, the opposition is only stronger.

The Obama Administration’s National Strategy for Trusted Identities in Cyberspace (NSTIC) raised hopes that the US government might swing its weight towards the design of legal and technical architectures designed to simultaneously increase online security while reducing the privacy costs increasingly imposed as a condition of even access to online content. At present those hopes have yet to be realized. There is much to be done.

  1. The caveat is important: the US government often seems more willing to talk of anonymization on the Internet as potentially empowering tool for dissidents abroad than for citizens at home.
Author: "Michael Froomkin" Tags: "ID Cards, Surveillance"
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