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Monday, May 02, 2005
Would you track your kids?
Florida has now passed a law mandating lifelong GPS tracking of sex offenders. I was just in Florida on vacation, and I have another proposal: GPS tracking of children in Disney World. We can debate the merits and demerits of The World some other time, but I wonder how many parents would choose to track the wee ones in this place. Trust me, it is easy for a kid to get lost.
But why limit it to Disney World? Wouldn't parents be interested in tracking children's whereabouts at all times?
Now, I'm not talking about invading the privacy of teenagers or any such thing. I'm talking about the really little kids--the ones who wouldn't have a clue what to do if they got lost or, more horrifyingly, abducted.
One company already makes a GPS watch for children; but why not something implantable, just under skin or in teeth, for instance? As a parent of young children, my absolute worst nightmare is that a child is lost or abducted. Assuming it could be done safely and relatively painlessly (let's say no pain worse than an ear pierce), what is the harm in being able to track a little kid in the event of an emergency?
Posted by Hillel Levin on May 2, 2005 at 01:53 PM in Odd World | Permalink
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Comments
The basis for assuming the market is not well-working is articulated (and certainly much better than I'm in a position to do off-the-cuff if at all) in Michael Froomkin's article that he linked to above. Go to the sections referring to consumer myopia and fear.
Moreover, if, as I'm suggesting, anyone who wants to misuse this information will likely do so in secret, the information as to the ongoing uses will be kept from consumers.
I can't resist linking to A publication of my own here (start at pg. 9 of the PDF), very restrainedly going after David Brin for making remarkably similar suggestions: that it's ok to permit a world where privacy-invasive technologies are in common usage, because, hey, we can always restrict the users of such technology and use similar technologies to spy on the powerful, right?
I quote myself, as if traveling in time, from six years ago or so: "Governments, corporations and other power centers that have been demonstrated to seek and use information whenever possible are placed in an information/opportunity cost market against citizens who, in the U.S. at least, rarely even vote."
(Alas, footnote 23 shows that even I have been subject the sin of unnecessary optimism... plus I'm not terribly pleased with the stylistic writing choices. Oh well.)
Posted by: Paul Gowder | May 4, 2005 11:04:18 PM
What basis, Paul, is there for assuming the market is not well-working and that the people in the market for these chips are not going to spend a few minutes, like Christine did, to see what the story is. Alternatively, if you want to regulate the right choices by mandating certain options through legislative or admin. fiat, I have no problem with that either. The FCC eventually gave us cell-phone number portability; presumably consumer groups can ensure a similar mandate.
Posted by: Dan Markel | May 4, 2005 7:01:20 PM
p.s.: as for the design of the kiddie-GPS: the plasticity of such code is only useful if there's a functioning competitive market with well-informed consumers who can choose between snoopable GPS and non-snoopable GPS, an assumption that I'm not willing to give in light of patent and trademark reducing the competitiveness in the market plus public technological cluelessness and superior institutional secret technology reducing the information available to consumers.
Posted by: Paul Gowder | May 4, 2005 1:06:33 PM
"All these design issues are codeable, plastic, and subject to input and choice still." -Dan
The problem with this assertion is that it is ignoring the underlying structure of the situation being formed by the interplay between the technological code/capacity and the law. While technology may be able to create solutions for problems, the nature of those solutions iwll be shaped by how the law is used to encourage them and vice versa. While you may not be traumatized by this situation or the potential for abuse, the potential for abuse is not one that can be ignored. We should look at the technological potential and ask what it will reflect about the law and how our current law should shape the application of this technology to the private lives of citizens through governmental involvement.
Once you add the government to this mix, we get questions that are beyond the capacity of letting the market sort it out/universal assent solves the problem. The question is what would we lose by the time universal assent is garnered? As for the notion of smart dust, I think we still have another generation of microization to complete before it is a viable/reliable technology. Though we did get frictionless foam sooner than expected.
Posted by: Joel | May 4, 2005 12:58:46 PM
Dan... the problem is that law, historically, is very very bad at stopping clandestine government (and corporate) misconduct. In addition to the examples I cited above, let me throw in Iran-Contra and Abu Ghraib, two examples of covert government misconduct that the law didn't stop and did very little to even attempt to punish.
Even assuming optimistically that the political will will be there to enact legal restrictions on the use of this information once it's made available, we can't hope to imagine the creative ways that they'll use to evade those restrictions. If the kiddie-GPS identifiers aren't given to the cops, the NSA might just hack the corporate databases directly, or the corporation making the devices might just quietly hand over the info to the government under an unconstitutionally broad secret Patriot Act warrant, etc. etc.
My solution to this is to take a page (loosely) out of the Larry Lessig book and suggest that the code that permits this kind of intrusion shouldn't be used. (So I agree with you that the bottom line is that some parents should just choose not to use the tech, but I disagree that the tech could be used safely. I also have a nasty paranoid little voice in the back of my head that says "if the tech becomes the norm, it might become negligent and/or evidence for parental unfitness not to use the tech...")
Maybe we're just looking at the whole thing from different levels of cynicism here. I'm assuming fairly dishonest-to-malicious executive branch agencies and corporations that have a will to aggregate public information and use it solely for their own benefit to the extent they think they can evade serious punishment for so doing, and a largely uninformed and sheeplike public that neither knows about nor knows it should care about the potential for misuse of these technologies. Your public seems a little smarter, and your institutions a little more accepting of the rule of law and individual rights. Unfortunately, I don't know of any way to really determine whose vision of public & institutions is more accurate. I tend to buttress my cynical view by jumping up and down and pointing at historical abuses, but that's not nearly as convincing as I would like because of availability and salience heuristics/"dog bites man."
(As for the no secret science rule, well, I have the distinction of being one of those people who is constantly litigating against government agencies, and the no secret science rule isn't always as strong as me and Edley would like. For example, there's this horrible privilege called the "deliberative process privilege" which exempts advice given to decisionmakers in federal agencies from discovery ... in a related vein, I'm arguing a school expulsion secret science case in a few weeks in the Fourth Circuit, so I'll keep you posted!)
Posted by: Paul Gowder | May 4, 2005 12:29:02 PM
Paul,
it's interesting. But this is far from inevitable. All these design issues are codeable, plastic, and subject to input and choice still. I.e., the kiddie-gps system might allow parents to share info with the cops only once the kids are missing and only for limited amounts of time. We can create firewalls b/w police and NSA, if we have the political will. We can force agencies to disclose the basis of their reasoning (no secret science, Edley always taught us!).
And even if all this info-sharing was inevitable, the parents can decide whether to a) buy kiddie-gps or b) apply for federal jobs in which their backgrounds are scrutinized. So, I'm not traumatized by the apparent injustice you see here.
Posted by: Dan Markel | May 4, 2005 11:33:13 AM
Funny. The animal shelter implanted these chips in my kittens when I adopted them last year. Guess they get sick of all of those "lost" animals tunring up back at the shelter.
Posted by: CBH | May 4, 2005 11:26:20 AM
Well, here's one possible nightmare scenario...
Joe and Jane have a kid. They put a GPS tracking device in the kid. Joe and Jane are both politically active, and they don't believe in shucking off their kid to some day care facility, so the kid comes with Joe and Jane to some political demonstrations, some meetings of some pretty radical organizations -- perhaps organizations with Islamist sensibilities, although not ones that have ever actually supported terrorism.
The NSA, using its unquestionably massive bandwith surveilance capabilities, keeps databases with recorded locations at five-minute intervals of GPS transmitters in certain frequency ranges, including the frequency ranges allocated by the FCC to kiddie-GPS. Because Jane and Joe have registered their kid's GPS id with the local police (for swift anti-kidnapper response, natch), and because the "firewalls" between local police and the feds have been removed, the NSA can associate that GPS data to the kid, and from there to the parents.
Jane applies for a federal job requiring a security clearance. The agency puts her social security number into the Massive Firewall-Free Federal Database and sees that her kid's GPS is regularly recorded at the weekly Muslim-American Committee For Peaceful Jihad meeting.
"I'm sorry, Jane, but you've failed your security clearance. Our records show your membership in an organization believed to have terrorist associations."
She files suit, the agency refuses to disclose its sources of information in reliance on any number of executive/national security/decisional privileges, but Jane doesn't and can't contest her involvement in the group. The court declines to second-guess the agency's decision that the group is associated with terrorists.
Viola, injustice. It's a bit of a paranoid scenario, but then again, the Patriot Act would have seemed like a paranoid scenario five years ago. It's within the scope of current political and legal possibilities.
Posted by: Paul Gowder | May 4, 2005 10:40:15 AM
Paul, you're painting scary scenarios from other issues, other technologies. If we focus on the issue here, ie., putting gps in kids or old people or people we're worried will be kidnapped, and we restrict access to the subscriber for the service, and the tracker and the trackee agree to participate then what: what's your nightmare scenario?
I can see a couple things: will the data of location be stored or erased after five minutes? will the police be able to subpoena records or access? will the network be secure? Obviously, once answers to those questions are available, people can then decide whether to opt into this regime or not. Maybe Michael Froomkin's notion of magic dust will trace people unwittingly; the technology is probably there for that, but that's not what I'm talking about here.
So I need more info about how the slopes will slip before I buy into the fears animating the privacy concerns.
Posted by: Dan Markel | May 4, 2005 10:14:13 AM
Dan: here, as in the government firewalls post, I question your assurance that this sort of thing will be solved by public consent or individual consent. Experience shows that both the government and corporate entities have an amazing level of skill at burying things in omnibus appropriations bills and fine-print contracts, respectively, as well as just doing stuff, legal authority be damned, and not getting caught or not losing the subsequent litigation for any number of reasons. The slippery slope is real, because those who permit the initial intrusions never imagine how far they can be corrupted. The misuse of the Foreign Intelligence Surveilance Act court for example... where's the public consent there? How about Echelon? What about that program -- I forget the name -- trading intelligence between NSA and GCHQ about each country's citizens? How about the recent disasters with Lexis and that other company failing to secure personal consumer information?
I think it's deeply questionable to say that any of those things were done by "consent," or that law has anything effective to do about them except stop the information collection in the first place.
Posted by: Paul Gowder | May 4, 2005 10:02:45 AM
This is only the tip of the iceberg for tracking technologies. Have a look at The Death of Privacy? if you would like more to worry about...
I especially like "smart dust".
Posted by: Michael Froomkin | May 3, 2005 11:24:59 PM
Joel, at the point everyone assents, it's not an "issue" (in the sense that it ought to be or may reasonably be contested) so much as a triviality. De minimis non curat lex.
Posted by: Dan Markel | May 3, 2005 5:55:13 PM
Dan, it is a privacy issue whether or not everyone assents. Even in assenting, the tagged individuals are abrogating some degree of privacy they have in their private lives.
Posted by: Joel | May 3, 2005 4:51:01 PM
It's not a privacy issue if everybody involved assents to the tracking (except the bad guys). Privacy is only a means to an end, not an end in itself.
Posted by: Dan Markel | May 3, 2005 2:46:15 PM
Privacy concerns are inherent in something like this. Once a technology exists, it inevitably acquires more and more uses. For example, social security numbers were never originally intended to be used as the personal ID numbers they are today (although that seems to be rather useful).
Once kids can be GPS-tracked, parents will be able to find them when they're teenagers (oh joy). And will there be any official age for removing the implants? If not, then soon everybody will be findable by GPS, and if that doesn't have privacy implications, nothing will.
Posted by: Belac | May 3, 2005 2:41:33 PM
We definitely wouldn't want it to be visible or always implanted in the same place. If it's easy to find and remove, it doesn't do much good in preventing abductions. If it's always implanted in the same place, we create an incentive for dismemberment, which would be very bad. If it's common knowledge that these devices are implanted in wrists, kidnappers will start chopping off their victims' arms.
Posted by: Xavier | May 2, 2005 5:18:47 PM
Generally, I see no privacy concerns at this. Now a subdermal implant around, say, the wrist, is a likely growth of this technology. If a GPS monitoring system was required to access certain government services, then we begin to see privacy concerns starting up. Personally, as a kid I am certain my parents would have been glad if my brothers and I were taggable like a wild horse. We could do some crazy stuff.
Posted by: Joel | May 2, 2005 3:18:48 PM
Interesting. First, a minor point: I just saw a report that the largest study to date shows no link between cancer and cell phones.
But the bigger point: Is anyone concerned about the potential privacy abuses of such products? Personally, I'm not. But remember that when subway MetroCards and EZPass toll systems were introduced, some groups went nuts.
Dan, perhaps you could do a quick update of your presentation on the legal implications and post it separately?
Posted by: amosanon1 | May 2, 2005 3:04:20 PM
I actually was talking about this to Wendi (my osita) last night, and I fully think this is a good opt-in program that the market should provide for, but eventually, if the tech/safety issues are worked out, the government should subsidize this b/c the tracking devices may be cheaper than the social costs involved with trying to find lost kids (or lost elderly parents). These are also valuable for travellers to foreign and/or dangerous regions.
I have an old interest in this topic. In 2001, I gave a presentation on this topic to the Nat'l Assoc of Attorneys-General with Eric Saltzman. We tried to sketch out the various legal implications of these wireless tracking devices and we had all sorts of fun demonstrations. I think it's going to continue to grow into a big business.
Posted by: Dan Markel | May 2, 2005 2:56:38 PM
Around the time of Elizabeth Smart's abduction, I thoroughly researched GPS devices for children. Although one company said that they were six months away from a chip implant (similar to one that you can purchase at the vet), many critics warned of side effects of implanting such a chip, especially in the ear (near the brain). If you think that constant cell phone use would have a cancer risk, this would be akin to 24/7 cell phone use. So, you choose between the almost zero percent chance of being abducted and the somewhat higher chance of getting a brain tumor.
I also looked into GPS watches and shoes. Of course, both of these things can be removed by the abductor. OK, so what about a watch that can only be removed by the parent? Then, you wonder what an abductor would do to get that watch off of your child's arm. As you can see, a new mom can spend a lot of energy thinking through these kinds of scenarios.
But, if a chip were 100% safe, I would do it in a heartbeat. Unless of course, you think there's any chance that your child will be wanted in connection with a crime. Now the police will subpoena the chip-monitoring company. . . .
Posted by: Christine Hurt | May 2, 2005 2:55:52 PM
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