British Airways made headlines in Britain last week with reports that it is in order to provide them with a “personal touch.” As a BA spokesperson explained,
We’re essentially trying to recreate the feeling of recognition you get in a favourite restaurant when you’re welcomed there, but in our case it will be delivered by thousands of staff to millions of customers. This is just the start—the system has a myriad of possibilities for the future.
Under this “Know Me” program, the airline will use Google Images to obtain photographs of business class passengers and combine that with other data on the customer’s history with the airline.
This is a very interesting case study for privacy because it definitely “Borders on Creepy,” as put it, but it is also to some extent an attractive proposition.
In one respect it’s hard to complain when anyone accesses information about you that is on the internet and available to the whole world. Yet… despite the fact that search results are indisputably public, many people do find the prospect of strange individuals or institutions poking around their online profiles to be unsettling. Here we enter the muddy world of expectations and social norms (which I’ve discussed before in the context of email spam and speeding tickets). Having a company compile publicly available information about us may not violate any privacy laws, but it’s something that could be described as rude.
At the same time, if we’re honest, in many situations it is very nice when a company evinces some memory of our past interactions. One of the frustrations of dealing with a large organization is that typically, whenever we are transferred from one branch to another, the new branch has no knowledge of what we’ve already been through. Think about getting exasperated as you say to the latest person to come on the line, “listen, this is the third time I’ve been transferred, and the fourth time I’ve had to call about this problem. “ Perhaps you want to add, “Do you have any idea what a good customer I am? I should be getting some special treatment here!”
This is what Jeff Jonas of IBM calls “.” Curing such amnesia is seen in the corporate world as important to provide better customer service—and also by some to manipulate customers, squeeze maximum profits out of them, score their financial value or “riskiness,” or provide security. (Strangely enough, these are also many of the same motivations for data mining, as I discussed in this post.)
But if you’ve been through hell on a trip, delayed on multiple segments, maybe the victim of some bureaucratic screwup—who would not want to have flight attendants on your last segment recognize your pain (even that can be enough) and maybe take some steps to make up for it? The pleasure we get from simple recognition and the feeling that we have a relationship with an institution (to put it in good terms), or the cheap status thrill from being treated as “special” (to be more cynical), is one engine driving the increased collection and retention of data today. Enterprise amnesia is something that businesses hate—but we need to recognize that often, customers also hate it. This is one driver of the explosion of loyalty programs, and this British Airlines effort is in some ways a logical psychological extension of that explosion. We are also seeing rising expectations that companies DO recognize us and our history of interactions with them.
So where does that leave privacy?
First of all, it’s important to keep in mind that while customers often hate enterprise amnesia—sometimes they might want it. Kashmir Hill of Forbes the right question in this regard:
I asked [BA spokesperson] Talling-Smith about possible downsides for fliers, such as the system remembering that they got soused last time they flew and insulted an attendant. “It’s not intended to record something like that,” he says.
That’s great—but take a look back up to the top of this post where I quote another British Airways spokesperson, who declares that the current program “is just the start” and has “a myriad of possibilities for the future.” Sometimes we want a relationship, but sometimes we don’t. Sometimes we just want to be anonymous. While we can no longer be truly anonymous while flying, we can in most other contexts—and even on an airplane might not want our flight attendant to know a bunch of things about us. Especially if, as British Airways suggests, what we’re talking about grows and grows.
Which is why we must return as always to a few touchstone privacy principles:
• First, individuals should have control. They shouldn’t be subject to information collection like this without giving permission. That doesn’t mean that a company shouldn’t reveal their data collection without permission, it means they shouldn’t collect the data without permission. As The Register , it doesn’t do much good if a customer opt-out just results in their not being approached—rather than the data not being collected.
• Second, companies should not be compiling data beyond what they use for specific purposes that customers have opted in to.
• Finally, customers now expect that companies that they have relationships with will in many cases know something about them, and remember their past interactions. What they most definitely do not expect is that other, third parties, will be collecting cross-relationship information about them. On the internet, for example, when they log in to a site they may expect the site will remember what they do—but they do not expect that a third party advertiser will be tracking their behavior there, and across numerous sites. That practice is of course widespread and is what the “Do Not Track” battle is all about.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.