Kevin Bankston and Amie Stepanovich on “When Robot Eyes Are Watching You: The Law & Policy of Automated Communications Surveillance”

When Robot Eyes Are Watching You: The Law & Policy of Automated Communications Surveillance
Kevin Bankston and Amie Stepanovich

Robots are reading your email, right now.

Whether it’s the NSA scanning for suspicious keywords, Google trying to divine your interests so that it can serve better ads, or your ISP scanning for viruses and spam, computers are routinely scanning the content of your private messages, along with those of millions of other Internet users. Sometimes with your knowledge and consent. Sometimes not.

Kevin Bankston

Kevin Bankston

Many privacy advocates and civil libertarians argue that having robots read your email is just as bad as having a human do it—perhaps even worse, considering robots can work at a much greater scale and speed, and have perfect memories. Others, like Judge Richard Posner, have argued that there’s no privacy violation at all unless a sentient being is doing the violating, and that automated filtering for relevant communications actually protects privacy by preventing humans from looking at the wrong messages. Both Google and the NSA routinely defend their practice of scanning millions of people’s private communications by saying that there are strict limits on which emails people can actually look at. Is that enough?

Amie Stepanovich

Amie Stepanovich

This paper explores what the growing trend toward the automated analysis of masses of private communications means for the law and policy of privacy and surveillance, and will ask the question: when if at all does it “count”, from a privacy policy and privacy law perspective, if a robot is reading your email? Does a government robot’s reading of your email constitute a search or seizure of that email under the Fourth Amendment? And does robotic scanning of your email count as an “intercept” that is regulated by the federal wiretapping statute? This paper examines both questions, looking to statutory and constitutional case law to conclude that from a privacy perspective, having a robot read your email is just as bad—and may be even worse—than its being read by a human.

Kevin Bankston and Amie Stepanovich will present When Robot Eyes Are Watching You: The Law & Policy of Automated Communications Surveillance on Saturday, April 5th at 10:00 AM with discussant Neil Richards at the University of Miami Newman Alumni Center in Coral Gables, Florida.

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