THE LIFEBOAT STRATEGY. Mark Nestmann

THE LIFEBOAT STRATEGY - Mark Nestmann


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Institute 2007).

      4 Pub. L. 101-336, 104 Stat. 327 (1990)

      5 Pub. L. 90-321, 84 Stat. 1127 (1970).

      6 Pub. L. 91-452, 84 Stat. 941 (1970).

      7 “The Recession Begins Flooding Into the Courts,” The New York Times Dec. 27, 2009.

      8 Saul Hansell, “One Subpoena Is All It Takes to Reveal Your Online Life,” The New York Times July 7, 2008.

      9 Richard Neely, The Product Liability Mess: How Business Can Be Rescued from the Politics of State Courts (Free

      Press, 1988).

      10 “The Great White Shakedown Winds Down.” Overlawyered.com June 14, 2008 http://www.overlawyered.com.

      11 Tresa Baldas, “Obese Employees Injured at Work Add On Weight-Loss Surgery,” The National Law Journal Sept. 15, 2009.

      12 United States vs. 867 County Road 227, Case No. CV00694 (D.C. Alabama, April 19, 2010).

      13 “E-Z Pass Now Hard On Adulterers in N.J.,” WNBC (New York) Aug. 9, 2007 http://www.msnbc.com.

      14 “Fighting Words,” Worth September 2007.

      15 “Tax Treaty Round Up,” Tax News & Views Nov. 7, 2009.

      16 Instructions for Treasury Form TD F 90-22.1 (2008).

      17 “Amendment to the Bank Secrecy Act Regulations—Reports of Foreign Financial Accounts,” Federal Register Feb. 24, 2011.

      18 John S. Baker, Jr., “Revisiting the Explosive Growth of Federal Crimes,” Heritage Foundation June 16, 2008.

      19 Katz vs. United States 389 U.S. 347, 350 (1967).

      20 Smith vs. Maryland, 442 U.S. 735,736 (1979).

      21 See, e.g., Greenman vs. Yuba Power Products, Inc., 59 Cal. 2d 57; 377 P.2d 897 (1963).

      22 See, e.g., Walt Disney World Co. vs. Wood, 489 So. 2d 61 (1986).

      23 Pub. L. 98-473, 98 Stat. 2050 (1984).

      24 Asset Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statement Fiscal Year 2008 (U.S. Department of Justice, Office of the Inspector General Audit Division, Audit Report 09-19 March 2009).

      CHAPTER ONE: DO YOU WANT THAT ON YOUR PERMANENT RECORD?

      Privacy is Expensive

      The high price of not capturing and sharing every moment of our lives will soon dwarf the cost to our privacy.

      -Pew Cashmore, Cable News Network, Oct.28, 2009

      All of us live a portion of our lives unseen by anyone else. We assign different values to this solitude. Each of us has a different sense of privacy, and the concept of privacy changes from one culture to the next and from one generation to the next.

      In our era, as access to personal information has increased, expectations of privacy have waned. Our tolerance for the privacy needs of others has declined. Information considered intensely personal a few decades ago is now routinely released for public consumption. Intimate details of a president's sexual behavior become front-page news. after being posted on the I internet. Ordinary citizens document every moment of their lives via Webcams or online blogs and share vicariously in others lives by watching reality television shows.

      The sheer quantity of information collected from all sources-businesses, governments, and individuals is soaring. In 2005, humans created 150 billion gigabytes of data. In 2010, we created an estimated 1.2 trillion gigabytes. A single gigabyte is roughly equivalent to a pickup truck with its cargo bay filled with books. This data onslaught is transforming our lives in ways we're only now beginning to appreciate. 25

      One important effect of this data deluge is, in effect, to make privacy more expensive for those who don't wish to be part of it.

      Privacy has always been expensive, and the Internet has made it even more so. The job market is a good example: the more prospective employers you can interest in your qualifications, the better chance you have to find employment. When I graduated from college in the 1970s, I sent out dozens of resumes to prospective employers. But only those employers to whom I sent resumes knew I existed.

      The Internet has changed this status, but at the price of privacy. You can post online resumes at a variety of job-related Web sites. You can create a page at a social networking Web site, such as Facebook and encourage prospective employers or business partners to sign up as "friends." You can build an audience at a Web site like Twitter and send out daily or even hourly updates of your most mundane activities. Some “twitter-celebrities" have more than a million people following their "Tweets."

      Naturally you're free to pitch yourself-or whatever you’re selling - to your followers. This has obvious appeal to companies looking to hire representatives with an established following. And if you gather enough followers, you can establish yourself as a freelance pundit in whatever subject you are an expert.

      You can also let others know your physical location at all times. Modern smart phones come with global positioning system (GPS) chips. The chip, when activated, can pinpoint your physical location within a few feet. You can now sign up for services that let others track the whereabouts of your smart phone online. Web sites like ULocate (http://www.ulocate.com) show a cell phone’s location and the speed at which it’s moving, superimposed on a detailed digital street map. And even if you don’t have a GPS chip in your phone, pursuant to federal E911 requirements, all cell phones must contain technology permitting their location to be tracked within 100 meters of their actual position.26

      Your own home will soon be watching you as well. If an electrical device in your home needs service, it will alert you via e-mail or a text message. Smart utility meters will keep tabs on your electricity consumption. A sudden, consistent spike may result in a police visit to make certain you’re not cultivating marijuana in your basement.27

      Thanks to new technologies such as “e-books,” your reading habits are becoming public knowledge as well, with surprising consequences. For instance, in 2009, the electronic bookseller Amazon.com pulled two titles from the library of titles available on its Kindle reader, the wireless e-book reading device it has developed. It turned out Amazon had purchased the electronic rights to the books from a source that didn’t really own them. Amazon then remotely erased the two books from the Kindles of customers who had bought and paid for them. Ironically, the two books were George Orwell’s 1984 and Animal Farm.28

      All these trends reinforce one another. As Pete Cashmore has observed, “attention is the new currency.” With so many competitors for our attention – billions of Web sites, social networking opportunities, etc. – it’s not hard to see why. Getting others’ attention has economic value. Privacy equates to lost opportunities.29

      You have fewer rights to control your digital data than you do with those letters and papers in your own possession. The Fourth Amendment to the U.S. Constitution prohibits police from barging in your home and searching your files without a search warrant. E-mail, text messages, and other digital communications often lack such protection. Even data you mark “private” is often available without a warrant.30

      The cost of data storage has dropped dramatically in recent years. So has the cost of organizing and indexing this data. And since you don’t own


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