New Tech and National Security Law -- Memoto
Published by The Lawfare Institute
in Cooperation With

- Privacy (yours) -- Your data will be stored in the cloud on the Memoto lifelogging cloud service. Will Memoto be able to access and analyze the geo-tagged photos to, say, sell you products or market your interests to others? What are the terms of service for the data you upload? Do you even own it at all?
- Surveillance -- The lifelog of a suspect would be very useful to the government in proving up a crime. It would also be useful to an innocent civilian in proving up an alibi. And, if they were available, the lifelog photos of all of the spectators at the Boston Marathon would have been of great value in identifying the bombers. Under what terms and conditions will the government be allowed to secure access to Memoto's data? Today, it is likely that access would be by way of subpoena, but there are many who think that too easy a standard to meet for the government to have access to this vast quantity of information. This question is very much on our minds these days after the GPS case from last term -- United States v. Jones. The concept of a "mosaic" of information being used to paint a broader picture of an individual is likely the subject of future Constitutional litigation.
- Privacy (mine) -- How about me? You are wearing a Memoto that is taking pictures all the time of your surroundings -- and that could include pictures of me as I, say, walk past you on the street. Do I have any interest in not being photographed on the street? If so, how is that distinct from, say, government operated surveillance cameras?
- Counter-intelligence -- Woe betide the government employee who buys a Memoto. The trove of data would be a treasure for foreign intelligence services who wanted to target potential recruits. And your geo-location tag is not something you want widely available if, say, you are a law enforcement officer on a stake-out. I suspect Memoto will be banned for use by Federal employees.
Before we get too far down this road of ubiquitous surveillance, real-time upload and comprehensive analytics by cloud providers, we should pause to consider the implications. We need to consider what rights consumers have, and what rights nonparticipant third parties should have.I think that' exactly right. On the other hand, if someone wants Memoto to take pictures of their children -- well, that's a good thing isn't it? As always, the boundaries of technology push the law in strange ways, but they also modify and enhance human behavior.
Paul Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company and a Senior Advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University, a Senior Fellow in the Tech, Law & Security program at American University, and a Board Member of the Journal of National Security Law and Policy.