In a previous post I discussed what it was like growing up in a small town, the gist being in a small town your expectation of privacy is a fantasy. What got me thinking of this was the civil suit that may have earned professional wrestler Hulk Hogan (Terry Bollea) $115 million. That’s what a jury awarded Mr. Bollea from defendant Gawker Media. Following that, on Monday of this week the jury came back and awarded Bollea an additional $25.1 million dollars from defendants Gawker Media, Gawker founder Nick Denton , and Gawker editor A.J. Daulerio. Here is how it all came about.
From testimony at the trial, Bollea was at the home of his friend, Tampa-area radio shock jock Bubba the Love Sponge, whose real name is Todd Alan Clem. Present also was Clem’s bride, Heather Cole, from all appearances a major babe. A suggestion was made, and the very enticing Ms. Cole took Bollea by the hand and led him to an upstairs bedroom where the two engaged in the most intimate of human relations.
The problem is, Mr. Clem arranged to video tape the encounter, although accounts differ as to whether Bollea agreed to this or even knew of it. That was in 2007. Nine seconds of the video wound up being posted on the Gawker site in 2012, without Mr. Bollea’s permission. This according to the jury’s finding.
So here’s the rub. Hulk Hogan (Terry Bollea) has for some time earned his daily bread as an exhibitionist, engaging in staged wrestling exhibitions (nobody seriously calls them matches) and other, less respectable, exhibitions. He has previously discussed his private sex life in public interviews.
Anyhow, that pretty much settles that. Freedom of speech notwithstanding, you cannot take something that was rightfully expected to be private and make it public. That is, you can’t do it unless you welcome legal and monetary repercussions.
My previous post (see the link above) delved into the matter of the NSA and other government agencies monitoring network traffic and even phone traffic. I’m going to expand on that. What about other forms of monitoring? Where does the expectation of privacy end? Recall (link above) my tale of growing up in a small town, and everybody told my mother when they noticed I was getting out of line. Bicycling around the streets in a small Texas town did not involve any expectation of privacy.
There is more I did not tell. As kids, I had a brother and some cousins, we decided we wanted to be detectives. What do detectives do? They keep an eye out and see what’s going on. We took it upon ourselves to stand by the street and record the license plate numbers of the cars going by. Yes, that was funny.
Did we have a right to do that? Anyone would argue this was a foolish exercise, but few would deny us the right to do so. But look where this is leading.
Pasted inside the windshield of my car is a toll tag. When I drive through a toll gate on any number of Texas tollways, a scanner reads the information embedded in the tag and records it. They’re going to send me a bill.
But wait. They record more. They record where the car was, at which toll gate, and in which lane. Also the date and time of day—to the minute. I tried an experiment. I logged onto my toll tag account and verified for myself. Yes, I could track the progress of my car throughout my travels along the toll road. And so could anybody else who had access to my account. Not just the NSA, but the local police. If later at a criminal trial I contended I did not murder the famous banker Robert McCool, the police could come back and ask, then why did my car exit the toll road near Mr. McCool’s house just minutes before the crime was committed?
Obviously my privacy went out the window when I decided to paste a toll tag on my windshield. The solution would logically be to not use a toll tag. Just pay cash.
Wrong-o! Nobody takes cash anymore. Don’t have a toll tag? The toll gate just reads your license plate. They look your car up in public records and mail you a bill. And charge you extra for the extra trouble.
Nonetheless, having a toll tag pasted on your windshield opens your privacy to anybody who can scan it, and not just the tollway authority. Anybody with the technology. Of course, reading your toll tag ID does not disclose additional information to somebody who does not have access to the toll authority’s database. They can’t even get your license plate information from the toll tag ID. But they don’t need to.
People don’t need to read your toll tag to get your license plate number. All they need to do is to look at your license plate. And they don’t need eyeballs to do that. Recall the kids in the small Texas town writing down license plate numbers? That was so 1950. Technology exists and is for sale to scan and read license plates. Anybody, anywhere, anytime can set up a scanner alongside a public road and collect license plate numbers from all passing cars. And they can record the date, time, and location. And it’s all perfectly legal. So far. Back to that later.
Besides the toll tag, I have pasted on my windshield another item. It’s the DMV registration tag. The police do not need to read my license plate to identify my car. The windshield sticker has a 2-D bar code that gives the police all the information they need. A cop stops you for speeding (or driving while black) and walks up to your windshield. He scans the bar code. He doesn’t have to write down your license plate number. He may check to see that the plate number corresponds (it had better) with the scanned information, but he has all he needs for his records.
So much for privacy? No way. This is routine, and a policeman stopping your vehicle for any reason can legally collect this information. And it can be use in later legal action.
I’m about to carry this the ultimate step forward. What if it were not necessary to step up to my car to read the sticker? What if, as with the toll tag, the registration stickers could be read from afar, for example from a scanner stationed beside the roadway. Then all the police (read, the NSA) need to do is to set up a network of monitoring stations and track every vehicle traveling on public roads. That is a massive amount of data, but who doubts the ability of the NSA to handle it?
A massive invasion of privacy, you will exclaim. Could be. This will not catch the crooks, you exclaim. The crooks will make up phony stickers. They could, in principle, but remember, the police (NSA) can also read the license plate, and if the license plate and the sticker don’t agree, then there’s trouble. Additionally, if a sticker is just duplicated, then the computing power of the NSA would take note that your car was in two cities at the same time. Flashing lights would appear in the rear view mirrors of two cars simultaneously.
This bit of government intrusion has been very interesting, but I’m getting to something more. Civil rights attorneys can make a big issue of any such government action, but do not believe that eliminates the problem. Though I am no legal scholar, I am going to venture that what the government is restricted from doing a private citizen may not be.
What law currently on the books, what pertinent case law, prevents a private citizen from stationing himself alongside a public road and recording the license plates of all traffic, all day, every day? And storing this information? Let’s give this private citizen a name. Let’s call this private citizen Sundar Pichai, CEO of Google. Google already has photos of your house. Some taken from the street and some taken from above. They possibly have a photo of your car driving on a public road. They have mine. I found it along I-35 in Texas.
Drilling deeper, if Google, or some other entity, were to collect and make public the time and location of every automobile on public roads, there is the possibility of a lawsuit akin to the famous one involving wrestler Hulk Hogan. But it’s not necessary to make the information public. All they have to do is to retain it, for all eternity. At that point all that the NSA, or any prosecuting attorney, would need would be a court order requesting the itinerary of the $75,000 BMW of notorious pimp Larry McCool, accused of murdering the unfortunate Miss Lala McShirley, late of 22nd and Fifth Avenue. Additionally, the NSA could obtain tracking information for all vehicles leaving the scene of a bombing at the Supreme Court building in Washington, DC.
What prevents Google from collecting this information is lack of financial incentive. It’s a for profit company. That does not apply to the NSA. They have not shown a profit in over 50 years. Could the authorities incorporate such a system of surveillance, disregarding whether the courts would allow it? The technology is getting cheaper. And it’s already in use, except for the part of reading license plates. Red light cameras exist through many major cities. There’s a violation, they have the photos. All that would be necessary would be to apply plate-reading technology, and you’re busted. Hey, look what I found:
Yes, that’s you traveling on I-10 while I’m writing this at 1039 on 24 March. Does your wife know you’re not at work right now? Hopefully she doesn’t have a computer with a Web browser, because that’s all it takes to vaporize your expectation of privacy.
In closing, we owe much thanks to citizen Hulk Hogan for defending everybody’s right to privacy. Yes, Hulk. Thanks. A lot.