000000	All right, so I'm Nichole Ozer.
000003	I'm the Technology and Civil Liberties and Policy Director.
000006	And my work for the ACLU, I'm one of three attorneys nationwide within the ACLU network that works only on privacy, free speech, and emerging technology.
000017	I'm based down here in our new Silicon Valley office.
000020	I split my time between our office here in downtown San Jose and in San Francisco.
000026	And really one of the things that I'm supposed to do and that I try and do is really to just insure that as technology is advancing, our civil rights aren't getting left behind.
000038	So as new technology is coming into play, as it's being developed, as it's being distributed, as it's growing in popularity,
000048	I'm really trying to ensure that privacy and free speech is considered within that process.
000056	And a lot of the things that we work on, as you know, we file quite a lot of law suits,
000102	we are litigators as well, and as alluded to, this morning is actually the case management conference for the AT&T litigation which I'm also litigating.
000112	But I had already committed to Jenny that I would come here with you all.
000116	So, you know, if Judge Walker's going to change the time of the CMC, I'm just not going to be there.
000122	So we do litigate a lot of cases on privacy, on free speech, fair use, sort of all the intersections of new technology and civil liberties.
000134	But there are a lot of issues that aren't at the point of litigation yet and it's important to be proactive rather than just waiting for a product to come out,
000143	waiting for a terrible harm to occur and then being able to sue on it.
000147	We would rather that people's civil liberties aren't implicated or violated before the fact rather than after the fact.
000155	So it's some of the work that I do.
000157	I came to this work -- I went to law school to work on public interest technology issues.
000203	I went specifically to Boalt because we had the first clinic in the nation to work on public interest technology, the Samuelson Law Technology and Public Policy Clinic.
000214	I worked with that clinic all through law school and was an IP litigator at Morrison and Forester before I came to the ACLU.
000223	So that's a little bit about me.
000225	One of the things I wanted to talk to you guys today about was just communications privacy, communications issues in general.
000236	And I sort of want this to be more of a give and take because I think that you all have some good insight into things that are happening out there as well,
000243	and some ideas about things and ways that you might want to be working on.
000248	I know some people are already working on some of the issues in terms of municipal wireless.
000258	But really what we're dealing with is pretty a broad issue.
000305	We're dealing with new communications infrastructures being put in place.
000310	What I'm talking about is, you know, we're not all just using a land line telephone anymore.
000314	Almost, probably, a great percentage of people between the ages of 18 and 35 don't even have a land line anymore.
000323	So we're moving, of course, to cell phones, we're moving to Voice over IP, we've moving to, of course email has become such the mode of communication.
000336	And so one of my goals is to ensure that the privacy and free speech rights that we had over traditional land lines gets translated or even better
000347	when we move to new communications technologies.
000351	Because more and more information can now be collected, it can be mined,
000355	and what are the implications of that on our privacy in terms of people knowing about things that we're doing and creating dossiers about our lives, and also our free speech issues.
000406	How are we going to feel about knowing that what we look at on the Internet, what we email to people, what we talk over Voice Over IP lines,
000419	is potentially going to be monitored, and what's the chilling effect of that.
000424	And so those are some of the issues that I work on.
000428	And one of the things that I wanted to talk about today is that this is a really broad problem, and I'm not exactly sure how we're going to deal with it.
000437	We've been trying to deal with it in several ways, but what we're dealing with is that the Internet was free.
000445	We have all sort of grown up with the Internet expecting that the applications and the types of things that we do on the Internet are going to remain free.
000458	And that puts a lot of market pressure in terms of, if we're expecting it to be free, companies want to make money, how are they making money?
000510	And one of the ways that they're making money is by having us pay for those free products with our privacy and free speech rights.
000519	So we think it's free, we jump to get it, or many people jump to get it, and don't realize the cost down the line in terms of their privacy rights and their free speech rights.
000531	And because the competitive advantage in these new Internet products has not been based on price because it's all free, it's been based on greater tailoring.
000544	Like you can go to Amazon and they'll tell you, oh, you like this book?
000549	How about these other five books.
000550	That's become de rigeur in iTunes and Amazon.
000555	You go to anything and they all of a sudden have all these suggestions based on what you've already looked at.
000601	Faster service.
000603	How do they deliver you faster service?
000605	It's by knowing more about you, keeping more information about you so you have faster checkout.
000612	All of these things impact the amount of data that they're collecting.
000616	And it's also meant that whoever has had the most information about you wins this race and competitive advantage.
000625	And so it's been this race amongst the companies to collect as much data as possible about you, to mine, combine it, sell it, share it.
000633	Any ways to increase the ability to deliver service and also to work with other companies to sort of cross platform and share resources and also integrate their products.
000647	If you look at Google and the growth of Google and the different integrated products that they're now having, that's a prime example.
000656	And so there's really been a confluence of sort of more and more of what we're doing is online in a way that the data can be captured.
000705	We're no longer, many of us, going to the library and browsing through the books on the shelves to see what kind of information we'd like.
000713	We're jumping on the Internet, we're doing a very detailed search query, we're getting back information that's being recorded.
000721	We're buying books online, we're getting health information online, we're doing our taxes online.
000728	Think of all these things that we never used to do online, and all this data is being collected about us.
000736	Also the businesses with the incentive to collect this data.
000741	There's a business interest in collecting this data.
000743	And now the government has a very strong interest in this data since 9/11 and feels justified in needing this data.
000751	I know most of you have been probably following the whole data retention debate in terms of companies being required to retain data for longer.
000802	Attorney General Gonzales has been very upfront with the fact that he wants companies to be required to retain data.
000810	So we have a whole new relationship with data with largely the same statues.
000817	And we still have the same statues and we still have the same constitutional protections, and unfortunately our Fourth Amendment privacy protections 
000827	are based on this reasonableness standard.
000830	What is the reasonable expectation of privacy that we all have?
000834	And that's a very, very slippery slope when new products are coming out and they might have serious privacy and free speech implications, 
000845	and then people are just becoming used to it or don't even understand that that's the situation.
000850	A prime example is Gmail.
000852	How many of you in here use Gmail?
000856	All right, so of the seven people in here, five raised their hand and one was iffy.
000904	You sometimes uses Gmail?
000906	So that's a really good example in terms of, if you have Gmail, which is scanning the content of your email to do targeted advertising,
000920	in a couple of years when the government wants access to somebody's email in a Gmail account, it's going to be a difficult argument to say, 
000931	I had a reasonable expectation of privacy in the content of my email when I gave it up to a BOT on Gmail for targeted advertising just so I could get a prettier interface.
000943	So we have a real issue in terms of what's happening now in terms of collection of data and what it means down the line in terms of reasonable expectations of privacy.
000959	So we have, what are we doing about it at the ACLU?
001004	Honestly, it's a hard situation because we have so many people out in the community that don't understand what's happening.
001015	They see the benefit of a new technology, they see the benefit of Gmail, and there is a definite benefit to Gmail.
001022	There is a definite benefit to many types of new technology, but they don't understand the implications, either immediately of where their data is going, 
001031	or down the line what it means in terms of reasonable expectations.
001035	And we saw that with the AOL scandal with the disclosure of information in terms of AOL search queries.
001045	Most people on AOL had no idea that AOL was collecting that kind of information and how it could be disclosed in identifiable ways.
001055	So we have one thing, is when there are major scandals like AOL, like the data brokers like ChoicePoint, like Internet companies like Google when Gmail came out, sort of the stick of bad press.
001112	That it is very hard for them when they get terrible press, when they get flamed on Boing Boing, when I come out and give them a lot of trouble.
001125	So the stick of bad press holds some sway.
001130	The carrot of good press also holds some sway because it affects their bottom line.
001134	When Google came out and didn't want to give over the search queries of a lot of users for a subpoena, which is actually an ACLU case that they got roped into unwittingly.
001153	When Yahoo came out and defended free speech in the Yahoo France case, 
001157	and we defended that case, and of course Quest got a lot of good press when they allegedly did not give over information to the NSA.
001211	So we have the carrot and the stick, but we're also seeing so many new proposals of new technology, 
001219	and it's a difficult situation in terms of figuring out how to protect privacy and free speech when you're dealing with a choice and a market situation.
001233	So the sort of model, or actually a good example of what we're seeing right now in terms of the proliferation of a new communications infrastructure 
001247	and very few privacy and free speech protections and sort of what we're trying to work on is in the media WiFi context.
001257	And so how many of you in here know that Silicon Valley is developing a new municipal wireless program?
001307	All right.
001307	I think Al came and talked to you about broadband a little bit.
001313	And I've been working on this since San Francisco announced that they were going to come out with a new municipal wireless system.
001320	And it's San Francisco, it's Silicon Valley, Sacramento's looking into it.
001324	I was just speaking at the University of Chicago on Monday and Chicago's looking into a whole WiFi system.
001331	And we're really seeing systems going out all across the country where there's been little to no thought about privacy and free speech concerns.
001343	And I like to use the analogy that what we're seeing here in Silicon Valley and what we're seeing in other cities tantamount to if a city 40 years ago said,
001354	we're going to put a public telephone booth on every corner, but if you're going to want to use that public telephone booth, it's going to be free.
001402	You're not going to have to put in a nickel, but if you're going to want to use it we're going to record everything you say.
001408	We are going to then give advertisements at the end of that depending on the content of what you said.
001416	And whatever you said on that telephone call we're going to not give you any safeguards that it won't be shared with other companies or with the government whenever they ask for it, pretty much.
001429	And I think most of us would have said, that's pretty crazy.
001432	I'd like to put a nickel in the slot instead.
001437	But those are the kind of proposals that are coming out in Silicon Valley and other cities where the business models are based on monitoring what you're looking at, 
001450	knowing where you're looking at it from, and knowing who you are as an individual when you're looking at that or emailing on the municipal wireless system.
001500	And so that's including if you're looking at political information, if you're looking at health information, you're looking for a new job.
001507	Maybe you're buying a present for your girlfriend or boyfriend or spouse and then there's going to be a targeted ad come up for this kind of florist.
001517	I mean, it doesn't have to be something that you're hiding, per se.
001522	It can just be something you don't necessarily want everyone to know about.
001528	And so this is really concerning.
001529	I already talked about the context of the library, that many people aren't going to the library anymore and looking at books.
001539	And the Internet really is the library for so many people in terms of new information, and at the library they don't keep track of what you browse.
001549	You're free to go in there and look at anything you want without having to worry that someone's going to look over your shoulder.
001556	And particularly in the municipal wireless context, many of the justifications for the system in itself is to reduce the digital divide.
001608	To give people access to information on an equal level.
001612	And so to have a system that says that, you know, Adam might have money and he can have access to the Internet in his house.
001625	But someone who doesn't have money has to use the public system and therefore they're going to have to pay for their access for their privacy and free speech 
001634	is really undermining one of the major goals of the digital divide.
001638	So from both a privacy and free speech standpoint there really needs to be protections in place.
001646	And what we're seeing in Silicon Valley and in many other cities is that the protections are not being put in place.
001655	The ACLU has a gold standard for the kinds of just basic protections that any municipal wireless system has to have.
001704	One is that it doesn't track users from session to session, and the proposal that was selected was the Metro Connect proposal 
001718	which requires a user login tied to the user's address and credit card which allows for what the proposal described as, quote, user tracking.
001728	The second is that the system doesn't commercialize user data, and the Metro Connect proposal contained no limitations on how it would share user data with third parties 
001740	or how user data would be tied to advertisements.
001744	The third criteria is that there needs to be proper policies for legal demands for personal information of the users.
001753	And the Metro Connect proposal said that they would disclose personal information in response to both criminal and civil subpoenas.
001802	So we're not talking about a warrant here, we're talking about, even if someone was in a divorce proceeding and there was a civil subpoena for your information, 
001811	Metro Connect says, sure, we're going to hand it over.
001815	And no policy giving you notice of the subpoena.
001818	So you wouldn't even know that your information has been handed over and who it was handed over to, and be able to potentially quash that subpoena if it was not justified.
001829	And the fourth is that there's a data retention policy that minimizes storage, and the Metro Connect proposal had no limitations on how long the data would be retained.
001841	So pretty much on all four of these criteria, Metro Connect was one of the worst you could possibly be.
001849	And this was the proposal selected by Silicon Valley for wireless all throughout this region.
001859	And this was not sort of in a vacuum.
001903	The Silicon Valley Municipal Wireless Group was not aware of any of the privacy or free speech concerns because we had highlighted them several months before this.
001915	And we're in the process, and Al Hammond here at Santa Clara and Lauren Gellman at Stanford are writing draft privacy policies to try 
001925	and encourage in the negotiations to have much better policies in place.
001931	So we're working on this issue.
001934	And it's something that in all of the discussions of the Silicon Valley wireless plan, there was not, 
001947	in 16 pages of sort of what the goals were of the system and what protections should be in place in the system where there's so much discussion of many other nuances, 
001958	there was not one word about privacy and free speech in the entire planning documents.
002007	We see that in so many of the cities, and that's a prime example of what we see just in this field in general, is that it just isn't even on the radar screen.
002018	That when things are being developed, when new systems are being put out, that it just isn't even considered, and that's part of my job.
002027	Is to get out there to know when things like this are happening, when new email systems are being planned, both for cities but also new products are being planned.
002039	And to get to developers earlier, to get to cities earlier and say, you need to consider privacy and free speech.
002047	You need to consider it because of the market, but you need to consider it because it's the law.
002054	Here in California we have constitutional right to privacy in Article 1, Section 1 of the California Constitution, which I know, in law school there's -- 
002104	I don't know, Santa Clara might do a much better job than Boalt does of educating people about the fact that there's also state courts and state law.
002115	But I know when I was in law school almost all I read were federal courts, federal law.
002121	But state law and the state constitution is incredibly important, particularly here in California because the Fourth Amendment is privacy.
002132	But we have Article 1, Section 1 of the California Constitution which was passed by the voters, inserted into the Constitution in the 1970s for the particular and specific purpose of stopping the drift towards a data surveillant society.
002150	Where there were dossiers of each of us based on the collection of data.
002155	So it was particularly created to deal with exactly what we're seeing now.
002201	And it was, as often California sort of sees things that are coming down the line and is at the forefront of trying to address those either through legislation
002212	or through the Constitution or through case law, this is a good example.
002217	So we are working on WiFi a lot.
002223	And I guess one thing I wanted to talk about a little bit, and then I want to hear from you guys about things that you see happening.
002233	We have email systems like Gmail, we have municipal wireless growing, we have Voice over IP growing.
002241	We have cell phones, not just for communication but the location information on cell phones being used for all sorts of new interactive services like social networking services.
002253	How many of you guys have sort of seen some of these new social networking services based on location information?
002259	So I'm at this bar and they're going to tell me that my friend is at the next bar, and all true location information.
002309	Anyone?
002311	Anyone use them?
002312	No, no one in here has used them.
002314	Well, at the University of Chicago they hadn't even heard of them, so it hadn't gotten to the Midwest yet, but it has gotten here.
002320	So that's also a whole other issue.
002325	So the answers at the ACLU that we have found to sort of this growing communications infrastructure that isn't having adequate protections for privacy and free speech, 
002339	we use the press to the extent that we can, but it really is fickle.
002344	Sometimes a story will blow up, get tons of press, the press will call me and I'll wonder, why are you calling me about this when this other thing is happening that isn't getting any attention.
002356	For example, the HP pretexting thing.
002358	It was all over the news that the information of certain people had been divulged while the AT&T has allegedly disclosed the call records of every single one of us, 
002411	yet Congress was hauling in HP into hearings.
002417	You know, HP was being hauled into hearings, it was on the front of every newspaper.
002422	Their board members were resigning while AT&T was sort of sitting there.
002428	No one resigned, there were no hearings.
002431	So that's an example of the press sort of being in inadequate force sometimes to control these things.
002439	And as -- all of you have taken port law.
002443	I guess I was sort of inspired when I was on my way to Chicago, you know, that companies need to know that they face risk and take steps to ameliorate it.
002452	If they don't know that they face a risk, if they say, well, maybe someone's going to find out about this but maybe they're not, 
002459	so maybe I'll just sort of try and slide it through like the Muni WiFi context, these cities just think that we wouldn't notice.
002508	And in many cities we didn't notice.
002510	We had several vendors who came to me when we started speaking very loudly about what was happening in San Francisco and Silicon Valley,
002518	saying, well, we've had these programs in several cities already.
002524	We never heard from you.
002525	We never heard about these issues.
002527	You know, why didn't we hear from you?
002529	And we said, well, we don't live in Atlanta.
002533	A, we didn't known about it, B, it wasn't affecting us so we didn't hear about it.
002538	Now I'm much more focused on helping other cities to also get the information that I'm producing.
002545	But really so many things get done without us ever knowing about it.
002550	You as individuals don't know about it, and sometimes things get by the ACLU that we don't know about and we have to sort of play catch-up at the end.
002559	So three-fold.
002601	Some is statue, some is regulation, some is litigation that we can do to try and have privacy and free speech in place.
002612	We don't have a good privacy regime here in the United States.
002619	We don't have a comprehensive privacy regime so we have to do sort of bit by bit laws.
002625	But the second is proactive steps to educate and convince about the need for privacy and free speech earlier on.
002634	And I'm working on a privacy and free speech primer for startups and businesses to try and sort of discuss these issues earlier on.
002643	And some is consumer responsibility.
002646	I know, an ACLU lawyer talking about consumer responsibility.
002650	But not being distracted by the immediate cost or lack thereof of a product.
002657	So not saying, it's free so I'm going to do it.
002701	And not letting or encouraging companies to hide the real costs of what the system is.
002708	So any time you see something free, it's not free.
002714	You know, my Grandfather used to say, there's no such thing as a free lunch, and it's true.
002719	There is no such thing as free Internet or free WiFi or free anything else.
002726	Because if a company is doing it, they have a business model.
002731	And if the business model isn't immediately recognizable as in pay me $5, you can bet that they're getting it through data or some other type of information.
002744	So you're unwittingly paying much more by not sticking the five cents in the telephone.
002754	But by letting that information be monitored and tracked, you're paying much more down the line with your privacy and free speech and also the impact, potentially, 
002806	on financial interest in terms of identity theft and the sharing of that information and the disclosure of that information.
002813	So those are some of the things that I'm working on.
002819	And I guess I want to hear from you guys about some of the things that you're working on and ideas that you have or emerging things that you're seeing that you would want us to work on 
002831	or to get my sense of what we see happening down the line about that.