Data, the Dalai Lama, and Drones

Today’s post is about data, the Dalai Lama, and the federal Defense Advanced Research Projects Agency (DARPA).  If you’re wondering how on earth these three are connected, read on.

Data-ism.

 In a recent Op-Ed, New York Times Columnist David Brooks announced his intention to study something he calls “data-ism” — the philosophy of data.  According to Brooks,our new and unprecedented ability to aggregate and analyze massive amounts of data has begun to change our assumptions about daily life.  Faced with a new-found ability to measure quite literally everything, we go on to assume that everything should be measured, all on the belief that, as Brooks puts it, “data is a transparent and reliable lens that allows us to filter out emotionalism and ideology . . .[D]ata will help us do remarkable things — like foretell the future.”  One of the best examples of the philosophy of which Brooks speaks is the book (now a movie and website) Freakonomics.

Brooks goes on to say that he hopes to explore several questions that are raised by the data revolution, such as when we should follow data over our own intuitions, and which types of events are truly predictable through data, and which are not.  Why does Brooks want to study this particular subject?  Because, as he puts it, he is concerned that”we tend to get carried away in our desire to reduce everything to the quantifiable.”  Brooks recognizes that data does some things really well, such as exposing those cases when our intuition is, in fact, wrong.  Taking campaign finance as an example, Brooks notes that data has shown that, after a certain point, the ability to raise money and release a barrage of advertising has little to no effect on the outcome of an election.  Nevertheless, the concern remains that we may have come to rely upon data too much on the false assumption that it provides a crystal ball into our culture and everyday lives.

I predict that Brooks will most likely find his concerns to be true.  Our new-found ability to amass,analyze and ultimately control data is certainly a powerful tool that can be used to create positive change.  But at the end of the day, as a society we should be very careful about over playing the utility of data.  This is because, it seems to me, there are two primary concerns we should have with the advent of data-ism.  The first relates to the way data may distract us from the ability to reach happiness.  The second arises out of the ways in which the data revolution, as a sub-part of the broader technology revolution, has threatened our privacy.

Data and the Dalai Lama.

Part of the recent data revolution has been a series of studies attempting to explain what makes us “happy.”  We have, for example, performed exhaustive, four-decade long studies to determine the best mix of love, work and play to obtain happiness.  We also know that the amount of money we have does not automatically produce happiness.  Except that, depending upon whom you ask, we also know that money really can make you happy. 

Almost fourteen years ago, His Holiness the Dalai Lama, in partnership with Howard Cutler, an American psychiatrist, released The Art of Happiness.  The book chronicles conversations between Cutler and the Dalai Lama on the nature of happiness and,more specifically, why happiness appears to be such an illusive achievement in western society.

In the book, the Dalai Lama expresses his view that western society is overly concerned with the our ability to reason-out solutions to everything in life, which in turn is based upon the assumption that everything in life can be logically explained, categorized and organized into a ruling set of principles that will give us “the answer” to life’s everyday problems. 

Using a striking analogy, he describes his fundamental concern with this approach.  In western society, he explains, when we encounter a problem, it is as if we have lost something and decided that the thing can be found in a particular room.  Accordingly, we go about removing things from the room as we continue to search for the object.  Even when we have excluded everything from the room and still cannot find the object we continue to search through the room because we refuse to consider that the object might not be in it in the first place.

Under this analogy, the “room” is the underlying premise with which all of our logical thought processes begin.  The “lost thing” is the answer we are trying to reach.  Thus, the main problem with western thought, in the Dalai Lama’s estimation, is that we are unable to deal with the very real possibility that an underlying premise may be incorrect.  Instead, when we bump up against the limitations of an underlying premise, we are left helpless.  In such situations, we experience great difficulty with figuring out how to approach the problem from a different angle, leaving us to flounder, unable to discern why we cannot find the answer we are looking for.

The most important of these premises that underlies all of western thought, the Dalai Lama continues, is the notion that everything can be measured, categorized, excluded or included, and, ultimately, explained by an orderly process of logical reasoning.  It is this premise which often distracts us from the ability to obtain happiness because our inability to depart from it often leads us to frustration.

Thus, not only does the Dalai Lama believe that the western approach is overly complex, he believes it misses the point.  Happiness doesn’t result from an ability to logically explain every occurrence and ultimately produce a type of happiness calculus.  It derives from an internal sense of self-worth and dignity, which in turn requires not only accepting that our lives will include events that cannot be explained, but which also requires the realization that happiness is always possible in all circumstances, which in turn means that there isn’t just one key to happiness.  This approach allows the attainment of happiness to be dynamic.  There is no longer one specific answer that applies to all cases.  Instead, happiness is an individualized goal that each person must approach individually by developing his or her own sense of self-worth in accordance with the circumstances of his or her own life.

Returning to data-ism, the point is that the Dalai Lama recognized over a decade ago that our obsession with data runs the risk of preventing us from being happy.  He may not have said this explicitly, but the argument is certainly there.  Consequently, the first limitation we must recognize when it comes to data is that it will not be able to answer everything, and certainly will not be able to provide answers to many of life’s everyday problems.

Data and new challenges for privacy.

If you are concerned about privacy, you may have heard about DARPA’s new drone-mounted 1.8 gigapixel (not megapixal) camera, known as the Autonomous Real-Time Ground Ubiquitous Surveillance Imaging System(ARGUS-IS).  You can see DARPA’s own webpage about this device here.

According to one report, this new triumph of technology can accurately capture a six-inch object in a ten-mile radius, all from twenty thousand feet in the air.  According to another source, “The ARGUS-IS can stream up to a million terabytes of data and record 5,000 hours of HD footage per day. It can do this by the 1.8 gigapixel camera and 368 different sensors all housed in the ARGUS-IS.”

Unsurprisingly, the announcement of this device has led to concerns that it might be used to violate our constitutional right to privacy.  At least one commentator has even called it a “Fourth Amendment lawsuit waiting to happen,”especially because the device appears to have the ability to scan an entire city for “suspicious” activity. Once again, the data-revolution seems to be right at our doorstep, in a potentially unsettling way.

Let’s review how a Fourth Amendment challenge to the use of the ARGUS-IS would go.  We’ll assume that an American citizen was caught by the ARGUS-IS doing something illegal, and was ultimately arrested for and convicted of a crime.  We’ll also assume that our citizen challenges his conviction on the ground that the use of the ARGUS-IS violated his Fourth Amendment right against unreasonable search or seizure because it invaded his reasonable expectation to privacy.

Under our current Fourth Amendment jurisprudence, he will probably lose.  Here’s why. 

First, some Fourth Amendment basics:  The Fourth Amendment protects against unreasonable searches, which means before someone can claim its protections, he or she must show that he or she was “searched.”  In order for government action to qualify as a “search,” it must violate a “reasonable expectation of privacy.”  An expectation of privacy is”reasonable” if the individual in the case subjectively expected privacy and society is prepared to accept that expectation as reasonable.  If one can establish that a particular government action is a “search,” (by showing that it violated a societally recognized reasonable expectation of privacy) then the government cannot perform that action without either a warrant or circumstances falling within a defined list of “warrant exceptions.”

Now on to why hypothetical challenger will fail.  He would likely proceed under one (or both)of two theories.  First, he may argue that the use of aerial surveillance violates his expectation of privacy because reasonable people do not expect to be spied upon from above.  This argument would fail because the Supreme Court has already decided in California v. Ciraolo and Florida v. Riley that police fly-overs are not “searches.” Why?  Well, because in the modern world we are aware that aircraft fly over our homes and should therefore be prepared to accept the fact that someone may see into our yards or the other areas around our homes.  This means that the challenger will fail under this theory.

So maybe the challenger will claim that it violated his expectation of privacy for the government to use a piece of high-end technology not readily available to the public. This argument was used successfully in Kyllo v. United States, and certainly offers a better chance of success here than the police fly-over theory.  But ultimately it too will fail because Kyllo included some vitally important factors that are absent in our hypothetical.  

Specifically, the challenger in Kyllo, Danny Kyllo, claimed that it violated his expectation of privacy when police used a thermal imaging device to look inside his home.  When they did, they learned that Kyllo was using high-intensity lamps in the middle of the night, which in turn caused the police to suspect that Kyllo was growing marijuana.  (They were right).  The police subsequently obtained a search warrant, which they then used to search his home, ultimately finding said marijuana.

Kyllo challenged the search, arguing that the use of a thermal imaging device to look inside his home qualified as a search, and,because the police used the device without a warrant or warrant exception, the use of the device violated his Fourth Amendment rights.  The Supreme Court agreed, noting that the thermal imaging device was not widely available to the public.  Therefore, the court reasoned the public should not be required to anticipate the use of such a device as they should in the case of, say, fly-overs.  But most important for the court was the fact that the thermal imager was used to look inside Kyllo’s home.  Largely for that reason, the Court concluded that its use constituted a search because the home is the place where our expectation of privacy is the most reasonable.

At the end of the day, however, a challenge to the use of the ARGUS-IS under the theory that it is a high-tech device not widely available to the public will fail because the ARGUS-IS is, as far as we know,just a camera.  Yes, it can provide great detail from very far away, but it can’t see inside the home and it therefore does not violate our reasonable expectation of privacy, at least no more than a normal police fly-over does.

If you’re like me, that result doesn’t satisfy you.  And if you’re like me, it probably doesn’t satisfy you because there’s something different about the ARGUS-IS, isn’t there?

And here, folks, is where we come back to data-ism.  What’s different about the ARGUS-IS is that it, like everything else in the age of data, provides the ability to aggregate a huge amount of information about you, me, and everyone it happens to capture.  There’s the rub.  The fact is that the ARGUS-IS doesn’t just permit the user to see things on the ground. Much more than that it can, assuming reports are true, permit the user to learn about things on the ground.  It does this by tracking data, by tracking habits and, ultimately, by classifying things as suspicious, or not.

On the one hand this demonstrates the awesome power of data and data-ism.  We can reliably learn things that we couldn’t before.  It’s very likely (and I believe it’s DARPA’s intention) that we can use the ARGUS-IS to find terrorists, both domestically and abroad, even if we previously had no idea who those terrorists were.  And that’s a good thing.

But at the same time this new-found ability would seem to present a new avenue of challenge to the use of the ARGUS-IS on American citizens.  Under this new theory, the claim would not be that it violates an expectation of privacy to perform a high-tech fly-over, or that it it violates an expectation of privacy to use a fancy piece of equipment.  The new claim is that it violates our expectation of privacy to utilize data — that is, the previously unrealized ability to amass information — in an attempt to predict things about us and our behavior, such as when we are about to commit a crime.  As Americans, we operate under the expectation that our every day acts are not being slowly tracked in a computer.  Of course, at the end of the day we know that they are because we all use facebook, twitter and linkedin.  But we use these services voluntarily and they do their best to give us the ability to control how the information we give them is used.

That all changes when the data tracking our everyday lives is collected by the use of a high-tech surveillance device.  That’s something different, and society does not recognize that type of use data as reasonable.  Its that reason why the ARGUS-IS will fail a Fourth Amendment challenge.

I’m hoping that over the course of the next year Brooks will publish some great things about his exploration of data-ism.  But as for myself, I’m pretty sure that although data can be a wonderful tool for good, when it comes down to the wire we have to recognize the manners in which it can also be harmful.

Tags: current events, law