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At lunch today I did an informal survey.  The question was this:

Is it acceptable for Customs officers to search through the contents of your laptop, look at files, read your email, go through your pictures, pick over your web search history, check to see if you have any illegal MP3 downloads, maybe some movies?

There are actually three parts to the question.

1. Is it legal to search all the electronic stuff you are carrying?
2. Is it legal to do it without any “reasonable suspicion” that you’re doing something illegal?
3. And, most importantly, how do you feel about it?  if it is legal, should it be?

There was 100% agreement, at least among the ten people at lunch today, that it was completely wrong to do so, and they presumed that it was either illegal, or, at least illegal without probable cause and maybe even a search warrant.

Not so.

On April 21, 2008, Judge Diarmuid F. O‚ÄôScannlain issued an opinion in the case of United States of America v. Michael Timothy Arnold.¬† Mr. Arnold, a forty-three year old man,¬† was returning from a trip to the Phillipines.¬† He landed at LAX and went through customs.¬† We’ve all done that – gone through customs that is.¬† They have an important function to peform; making sure that people don’t bring bad stuff into the country, things they haven’t paid duty on, animals, fruits that might harbor insects, contraband, and mostly drugs.¬† Mr. Arnold wasn’t a suspect, nor was he behaving in a suspicious way.¬† He was selected randomly for more careful screening.¬† In this case, the customs agent asked him to turn on his laptop, and proceeded to look through his photo album.¬† The agent found pictures of nude women and called in more experts.¬† They went through all his digital files and found images that they considered to be child pornography.

Mr. Arnold argued that the customs officers should not have been allowed to search his laptop without “reasonable suspicion,” and filed a motion to suppress.¬† The District Court agreed, but that finding was overturned by the Appeals court, as detailed in Judge O‚ÄôScannlain’s opinion.

Contrary to the opinion of my lunch companions, searching your laptop, your cell phone, your flash drive, iPod iPone, Blackberry – reading your emails, looking at your pictures, checking your web surfing history is all just fine – with or without “reasonable suspicion.”

But my point is not to argue the subtleties of the law, it is to recognize that, as we say so often in Blown to Bits, that quanititative changes have qualitative impacts.¬† Looking through your briefcase for undeclared purchases, searching your bag for the cheese you are trying to bring into the country, or for the kilo of cocaine, feels quite different from going through everything on your hard drive.¬† For many of us, our laptops contain a record of much of our lives: years of pictures, enormous email archives (mine’s about 2 GB.), every appointment we’ve had.¬† There is something inherently creepy about the notion of being laid bare in front of a customs agent simply because you are crossing the border.

We have strong legal protections for what we have in our homes.  The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” Homes used to be where we kept the record of our lives, the pictures, the correspondence, our entire music collection.  It was inconceivable that you would carry it all about with you. But no more.  You can fit quite a bit if personal history on a 120GB disk drive. The digital explosion blew a big hole in the wall of our house.  Many of us carry our history with us.

Once again our legal structures feel intuitively to be out of whack with the nature of the digital universe.  How profoundly will our privacy be violated if a customs agent can pour through our most intimate thoughts, read our digital diaries, explore our interests and desires, our corporate secrets and health records.

Like all the stories we tell about BITS, this one is not over, but the implication is both clear, and consistent with our other observations: those who make the laws, and those who interpret them need to bring a deeper understanding of the technologies that are so much a part of the fabric of our lives

One of the reasons that we wrote “Blown to Bits” was because we realized that so much of what goes on is connected to the changes digital technology has brought, and we wanted everyone to understand the implications.¬† Not a day goes by when we don’t see more bits stories.

Like today.¬† A witness¬†alleged that the driver of an MBTA trolley that crashed was talking on her cell phone at the time.¬†Thanks to the fact that cell phone service is now all “bits” that allegation is gone. Recent news stories reported that the cell phone records show no phone, text, or Internet activity at the time.

“We were able to recover the driver’s cell phone at the scene. We issued legal process to access records of her phone calls and text messages as well as her Internet usage on the phone, and engaged in forensic analysis,” Middlesex District Attorney Gerry Leone said in a statement.

We should all be aware that every single thing that we do with our handy little phones is tracked and stored.  It may take a warrant to retrieve those data, but they are there for the asking.

That wasn’t the only bits story today.¬† The front page of USA Today reported that visitors to the Olympics are at risk of being hacked by the Chinese government.¬† That story won’t be news to anyone who has read Blown to Bits – we talk at some length about how digital communications can be monitored and analyzed, about how search results vary from country to country, and, most importantly, how digital censorship can be a powerful tool for molding the thinking of a nation.

The Celtics (sadly!) lost to LA last night.  How, you might ask, is that one a bits story?  Answer РKobe. whose 36 points made the difference, was cleared of charges to some degree because the cellphone text messages of his accuser were all stored, and subsequently retrieved.  You may have thought those message went away after you sent them.  Not so.

As my hero, Ron Popeil likes to say, “wait, there’s more.”¬† According to the Washington Post, the Red Cross was fined because six units of blood were improperly washed.¬† That’s six units out of literally millions.¬† Imagine finding that needle in a haystack if the records weren’t all bits.

The list has no end.  We are living in a bits world, with endless possibilities and perils.

Vontu, Tablus, Code Green, PacketSure, — these are all players in the world of “data security,” of making sure that valuable, confidential, protected, secure data doesn’t leak out. It’s a noble calling. After all, we don’t want our private information leaking everywhere, and corporations, for sure, don’t want theirs sneaking out the back door either.

Here’s what they do. They listen to everything passing through the company network. Often, they sit in a place on the network where information heads out the digital door to the Internet. They are “configurable.” That means that, like much of the software we use, the administrator can set up rules. “If Susan Black sends an email that includes the word ‘Prada’ or ‘Tiffany’ then …” Oh wait, that isn’t exactly the kind of rule you would expect for data security. My point exactly.

The tools that guard against data leaks are nothing more or less than digital wiretaps. The marketing term is “content inspection agents.” I love marketing-speak. The folks in marketing could have just named them “eavesdroppers.” Unlike the wiretaps of old, they don’t require a human listener. They have digital listeners; software that can be configured to detect whatever the administrator might think is suspicious, and then take appropriate action. That action might be as severe as blocking the transmission, or as aparently benign as keeping a copy for administrative review. The tools can look at every form of network traffic, because they operate at the deepest level, inspecting all the bits as they pass by.

Like so many innovations in our digital world, things developed for one purpose can be directed, or mis-directed to another. So it is with these tools. Guarding against data leaks is like protecting the homeland from terrorists. No one would ever argue against it. The question is, which of our assumptions about personal privacy are being sacrificed along the way. Our observation is that, for the most part, we don’t care. The more we know about the world of bits, the more we will come to accept that Big Brother is watching and listening, and we will just have to accept that new reality.

Bits changed everything. We are so familiar with the transformation that most of us barely remember the old way. Before bits, only people could transform information, re-arrange it so that it served a different purpose. The phonebook listed names in alphabetical order. Want to know the name that belonged to a number and you were out of luck. Want to know the phone number of the person who lives at a particular address – out of luck again. Not so now that bits have arrived. Digital information can be rearranged and repurposed. Type a phone number into Google and bingo, the name appears.

For the most part the ability to manipulate data is wonderful. Sometimes, though, it’s a bit creepy.

We’ve written about the difference between information that is available and information that is accessible. I came across a mashup the other day – the combination of a couple of existing components – that definitely fell into the creepy category. Federal Elections Commission data has been available for years, and the tools to search that database have been getting better and better. Combine FEC data and Google maps and you get Fundrace. Take a look at http://fundrace.huffingtonpost.com

Just like the phonebook example, rearranging the data and presenting it in new ways transformed the experience. No need to search just by name any more. Want to see who your neighbors are supporting – just look at the map. How about searching by employer? Color coding by candidate, dots that correspond to the size of the donation Рpretty soon data become information, and what once seemed to be a relatively private activity becomes public and accessible.

As we wrote Blown to Bits, we came to recognize that many of the stories in the news were “bits stories.” Sometimes it’s a bit of stretch, other times far less so. Consider world hunger.

The price of rice has been rising. A story last month in the New York Times reported that rice producing coountries were cutting back on exports, civil unrest was rising, and a crisis loomed. For populations that spend a large portion of their income on food, populations where rice is often a staple of their diet, these increases can be devastating. It is a complex problem with potentially dire consequences.

But how is it a bits story?

The University of Washington’s “Nutritious Rice for the World” project is seeking to mitigate world hunger by analyzing rice proteins. The goal is to make it possible for farmers to grow rice strains with higher yields, greater resistance to disease, and even improved nutrition. It’s a noble cause, and a difficult scientific and technical problem. The computational needs of the project are enormous. Using conventional computing approaches the time to complete the analysis could well be measured in centuries.

We could just wait for computing power to increase. With computers doubling their performance approximately every year (close enough for this calculation), in a a decade, they will be 1000X faster. A task that would take 200 years using todays’ computers should take 73 days then. Wait another decade, and they will be 1,000,000 times faster and our protein analysis will take less than 2 hours. But the rice crisis won’t wait that long.

The team at the University of Washington had a better solution – harness the aggregate computing capacity of thousands and thousands of otherwise idle computers – your computer and mine (if you choose to participate). They joined the World Computing Grid project.

A computing grid is a loose collection of computers that work cooperatively, each doing a small portion of a large computing task. It’s similar to the way Google works – dividing the processing of your query across lots and lots of computers so that the response is fast. This particular grid joins technology and social involvement, allowing individuals to “contribute” unused computer time. In addition to analyzing rice proteins, WCG now has active programs for cancer research, AIDS, protein folding, denque fever, and more. The WCG harnesses the computing power of over 1,000,000 computers from more than 380,000 participants.

This is one more example of the transformative power of the digital revolution. Not only is it possible to do complex protein structure analysis, but also we can share the task across thousands, even millions of computer linked through the Internet, computers that belong to ordinary citizens of the world, with a shared purpose, part of a community that has been made possible only by virtue of the social connectivity that the Web engenders and supports.

Even world hunger is a bits story.

Watching the results come in from the Indiana primary I was reminded of the difference between public information and accessible information. Quantitative changes can have qualitative impacts. Information that was always nominally public, but nearly impossible to retrieve, is now completely accessible.

In the case of Hillary and Barack, the obvious example is FEC records. The Federal Elections Commission provides detailed information on who gave money to whom. Go to www.fec.gov and take a look at the interactive maps for the presidential election. They did a great job presenting information that was always public – but not readily accessible. Now, if you want to check on your neighbors, it’s a piece of cake.

Some people play both sides. Bill Gates gave the maximum ($2,300) to both Hillary and Barack. We always had the legal right to know. Now the information is just a mouse click away and that changes everything.

Campaign contributions arent’y the only example. My daughter bought a condo a while ago and was uncomfortable when all of her co-workers starting asking what she had paid. Why bother asking? Just go to Zillow, or any of its competitors and this traditionally public information is now readily accessible.

Lots of communities post property tax data. It used to take a trip to city hall. Now, no gas required, a couple of mouse clicks and you are there.

Curious about your neighbor’s house? In my case you can go to the town website and find everything from the property valuation to the kind of roofing material they used. This information was always public, but making it easy to retrieve has utterly changed our sense of privacy.

Careful. Snooping on your neighbors can be habit forming.

Yesterday afternoon I was in the offices of one of my large corporate clients Рa financial services company.  I needed to go online to gather some information and enlisted the help of one of their IT staff members to get me access.

The first thing I did was go to check my email.¬† I use Google’s Gmail client when I check mail on the web.¬† I like its user interface.¬† No luck!¬† I entered www.gmail.com and received a giant red warning “You are trying to access a site that is FORBIDDEN!”¬† Interesting.¬† My helpful IT guy said “oh, I forgot to tell you, we monitor every single thing that you do when you’re on the web.¬† We control what you can see, what you can’t see.¬† We read all your email.¬† We’re watching.”

Now, if I’d picked up the phone to make a call I’d have some measure of assurance that no one was listening.¬† Not so in the land of bits. I might just as well have been in China searching for Falun Gong.¬† Little Brother is alive and well.¬† You don’t need to be a government to impose surveillance and thought control.

Now this particular client isn’t a mom and pop operation.¬† The assets they handle exceed the gross domestic product of most nations. So maybe they think of themselves as a government, even a totalitarian one. But even so, I found the notion that they were watching my every move, controlling the websites I could access and hence the information I could receive, reading my email, a bit creepy.

It was one more reminder that technology had moved faster than the laws intended to manage its impact on our lives.  When telephones arrived we put in place legal protections for the privacy of our communications using them.  At some point, we will need to do the same for the bits that carry the substance of our lives.

Sometimes its not what you say, but to whom and how you say it. And in the post-digital-explosion world the possibilities are utterly transformed.

Consider what happened with James Karl Buck.

On April 10th he was arrested in Egypt while covering an anti-government protest.¬† As he was being led off to¬† an uncertain future he sent a single word message to the Twitter.com blogging site.¬† In case you’ve¬†never looked at it, in their own words “Twitter is a service for friends, family, and co‚Äìworkers to communicate and stay connected through the exchange of quick, frequent answers to one simple question:¬†¬† What are you doing?”
When I first encountered Twitter I had two conflicting reactions.¬† The first was “you’ve got to be kidding, will anybody actually do this?”¬† The second was “why not?”¬† After all, I had witnessed inumerable¬†cell phone conversations that had no more content than the central twitter question “what are you doing.”
  
But I digress.
  
Jim Buck sent his single word message “ARRESTED” to his friends¬†via Twitter, and it was enough to make all the¬†difference.¬†¬†You can read the whole story on the web here.
 
From the Blown To Bits perspective this is a classic example of the fundamental transformation that the digital explosion¬†has wrought.¬† Information moves everywhere.¬† The degree of connectivity, the ability to convey information¬†broadly, is staggeringly different from what was available in the pre-explosion era.¬† Twitter didn’t get Jim¬†out of jail, the collective efforts of his friends did.¬† But in the absence of the web, his fate could well have¬†been quite different.¬†
 
Had the designers of the Internet not created a system that¬†could be adapted for use in ways that were not imagined by those very creators, had they not produced, in Jonathan Zittrain’s lexicon, a “generative¬†technology” James Buck might well be in an Egpytian jail today.
       

I was cutting through Harvard Yard yesterday evening on my way to the

Law School to hear Jonathan Zittrain speak about his new book when I ran into some of the loudest music I had ever heard. Wu-Tang Clan was performing on the steps of Memorial Church as part of Yardfest – a free concert for undergraduates.  Since my kids are in their mid thirties, Wu-Tang was not part of my musical experience.  They did, however, draw a big crowd.

Now when I was in school, a crowd this big would almost certainly have been for one of two things: a demonstration against the war in

Vietnam, or a demonstration in support of civil rights.  It was the sixties and those were the things that dominated campus life.  Either would have drawn a crowd, and, it’s highly likely that a couple of folks from the FBI with cameras would be there as well. J. Edgar Hoover liked to know who was attending those sorts of things.

There were no FBI folks at Wu-Tang yesterday.  That wasn’t because who attends a rap concert doesn’t matter to the FBI, it’s because pretty much everyone there had a cell phone in their pocket, and that’s all it takes to place you somewhere with decent accuracy.

Did you go to the Obama rally last October?   We can always ask Verizon.

All the technology is in place to do just that.  The phone company has to know where you are to route calls to you, and bits are so cheap these days that there’s no reason to throw them away, no reason not to keep the position history around.

I’m not saying that it’s all happening now, just that it can.  There is, however, plenty of evidence.  Consider Google maps for mobile’s ability to show where you are. (http://www.google.com/mobile/gmm/mylocation/index.html).  No need even for GPS.  And if Google can get this information in real time, who else can? This is one more example of intended consequences of technologies, one more example of the good side / dark side of bits.  If you want to be able to ask your Google to find the nearest Chinese restaurant, then the capability to track your location must exist. And if it exists, we can save it. And if we can save it ….you get the picture.