Note to Reporters: If Surveillance Data Shouldn’t Exist, Then Don’t Use It
The New York Times fails in its attempt to report on the surveillance economy
This op-ed was co-authored by Albert Fox Cahn, the founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, a New-York based civil rights and privacy group, and a fellow at the Engelberg Center for Innovation Law & Policy at the NYU School of Law.
If you want to teach kids not to play with fireworks, try not to put on a fireworks show as part of the lesson. You don’t warn people that something’s dangerous by showing them just how fun it can be.
That lesson is lost on the New York Times, which last week published an opinion piece by Charlie Warzel and Stuart A. Thompson highlighting the dangers of smartphone location data by mapping the movements of rioters at the Capitol on January 6. (OneZero recommended the story in a short post on Friday.) The journalists obtained a leaked dataset of location pings and used it to map the movements of insurrectionists from a Trump rally to the halls of Congress — in one case, they identified an individual by name, publishing his social media information and other details.
They intended the story as a warning against surveillance. Warzel and Thompson write “Surrendering our privacy to the government would be foolish” and “None of this data should ever have been collected.” But they undermine their warning by putting the data on full display and using it to make a political point: Yes, the tracking is bad, but look, it also proves beyond the shadow of a doubt that the insurrectionists can be linked to Trump, they seem to say. As if to emphasize the mistake, the New York Times Opinion Twitter account on Sunday promoted the article as having “identified some of the Capitol rioters,” completely missing the core point about data surveillance.
We firmly agree with Warzel and Thompson’s ultimate point that this data should not exist. We have both been longtime critics of a technology landscape that allows and even encourages rapacious data-grabbing as the default for companies looking to target and exploit potential customers. There are several issues to contend with here — for the public, for law enforcement, and for a paper of record like the New York Times.
Lawmakers, journalists, and the wider public must ask “is this data needed?” rather than “can this data be useful?” A consistent claim from authorities is that more surveillance equals more safety. Not only is there little evidence to support the claim that widespread and pervasive surveillance makes people safer, but such a setup is also incompatible with a free and open society. Consider that many of the insurrectionists have been tracked down by familiar “low-tech” solutions like tip lines.
For the Times, we have to ask what purpose is served by illustrating the potential for misuse rather than merely describing the data’s harmful potential. Journalists often receive hacked or leaked information that they verify without publishing the names and details of people who are connected to that data. To do otherwise sets a dangerous precedent that normalizes the use of this data. If the data is truly toxic and should not exist, as the journalists themselves assert in the piece, then it should be treated as such. To return to the initial analogy, the Times keeps playing with M-80 fireworks while telling us all how bad and dangerous explosives are.
Regardless of the disclaimers and caveats, these stories rely on information from invasive data brokers at the very moment when we need to create distance from them.
The Times cannot have its cake and eat it too. If this type of data exploitation and tracking is unethical, then it is unethical — the paper should not itself participate in these practices in pointing out how bad they are.
But we’ve seen the same sort of invasive tracking from data journalists covering everything from movement patterns during the Covid-19 pandemic to political protests. Regardless of the disclaimers and caveats, these stories rely on information from invasive data brokers at the very moment when we need to create distance from them.
Moreover, this Times article has a critical omission: race. In a piece that ostensibly seeks to highlight the threat and potential dangers of geolocation data collection, the authors never once mention the inescapable truth that as these surveillance technologies expand, they won’t be primarily aimed at white extremists like those who stormed the Capitol. No, these tools will be systematically targeted at BIPOC communities, just as surveillance always has been. For proof, one need only look at this weekend’s revelation that Minneapolis police served Google with a so-called “geofence search warrant,” sweeping up location data on hundreds of protesters simply for taking to the streets to denounce George Floyd’s killing.
It’s crucial to remember that to a large degree, the law enforcement failures that led to the events of January 6 were not from a lack of data. In fact, many of the insurrectionists organized openly on Facebook and Parler, as the Times article itself notes. But the article’s “do what we say, not what we do” ethic undermines every warning about the dangers of location tracking. Many people, rightfully so, were shaken to their cores by the events of January 6. But it’s precisely during the most dire times that our commitment to ethics should guide us the most. Embracing a surveillance society might seem to be the path to safety and securing democracy, but the exact opposite is true. Deploying invasive and extractive methods, whether in the name of security or in the name of journalism, is a technological race to the bottom.
This tension is not unique to the type of geolocation data that was collected during the Capitol attack, but it is particularly pronounced in this context. That’s because we’re on the precipice of the first bans on police access to geolocation data in the country. In New York, a bill from state Senator Zellnor Myrie and Assemblyman Dan Quart would create the first shield against police purchases of geolocation data and geofence warrants. And there are rumblings of similar measures in other jurisdictions.
Seeing this geolocation data used by journalists to track the insurrectionists may make the public pull back from these vital reforms at the very moment they’re likely to go through. If journalists truly believe these tools are too dangerous for law enforcement, they shouldn’t showcase them in a way that garners public support for surveillance.
It’s deeply awkward that the same data can be used as a tool of accountability or oppression. The professional ethics of surveillance reporting must keep up with the times. It’s sometimes difficult to decide what kind of materials journalists should and shouldn’t share with the public, but we can draw a clear line here: If you have geolocation data on the general public, just don’t publish it.