LIGHTS, CAMERA…

Why You Should Always Assume You’re Being Secretly Recorded

Be it for evil or for justice, being surreptitiously recorded is our new, very permanent reality.

“You’re not recording this, are you?”

So many secret recordings bear this cringe-inducing phrase, followed by the inevitable assurance from the person pressing “record” on the other end, using the same ends-justify-the-means prevarication that an undercover cop uses to assuage a criminal getting wise to a setup, “Oh no… definitely not.”

Meanwhile, the sensor—there are 10 billion of them worldwide on 1 billion smartphones—sees and hears all.

“Everything potentially sees the light,” said Andreas Weigend, former chief scientist of Amazon and author of Data for the People: How to Make Our Post-Privacy Economy Work For You. “Things that we could hope might go by unnoticed, now due to the permanence and amplification of the crowd, can easily get blown up. ‘AL’ used to mean Artificial Life. For me, it now means Amplified Life. ‘PR’ used to mean Public Relations, carefully crafted marketing messaging. For me, it now means Permanent Recording.”

Daily, the Permanent Recording wars seem to be playing out in sensational ways in public and private life: Cops’ bodycams vs. citizen’s cell phones. Project Veritas vs. the New York Times. Trump and his administration vs. the media. Alex Jones vs. Megyn Kelly. Husbands vs. wives. Students vs. teachers. Perverts, predators and sextortionists vs. the innocent. Even, in some mind-blowing instances, murderers vs. the dead who inadvertently captured their own demise.

We’ve become a global population of crusaders, spies, snitches, voyeurs, exhibitionists, deviants, whistleblowers and watchdogs—all enabled with the same ubiquitous and incredibly cheap proliferation of recording technology.

Just consider the exponential growth of the technology alone. As Weigend puts it: “There are already more sensors than people on earth.”

And it’s nothing compared to where we are headed. He posits that according to Moore’s Law (the rule that computer power will double at the same price every 18 months), in 2020 we’ll be living in a world flooded with more than 1 trillion sensors (a projection which aligns with estimates from HP, IBM and Bosch).

It’s a wake-up call for anyone who is not living in a remote Appalachian cabin: In 2017, and hereto forth, for the rest of time, barring any kind of nuclear or digital apocalypse, it is wisest to always, always, always assume you are being recorded. In the White House. In the bathroom. In an Airbnb.

“There is ‘data angst’ as I call it,” said Weigend. “I believe in data symmetry. You know the old saying goes, ‘If you show me yours, I’ll show you mine.’”

Which is a good ideal to strive for, but the cynical reality often looks a lot more like, “If you show me yours during a congressional hearing, I’ll plead the Fifth.”

Weigend, who wore his Google Glass every day for a year and sometimes experimented with live-streaming conversations real-time to gauge people’s reaction, said that while there is no going back, there is what you might call “smart paranoia,” wherein you can use wearables to track incidents you might need later in a court of law or simply taking advantage of services offered by organizations such as the ACLU, which offers a cloud service for people to upload their streams in the event they need documentation later.

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An acute observer of the “surveillance state” phenomenon, Weigend articulates the three major concerns that have emerged in the last several years. First, there is the fear of information imbalance. Second, there is fear of information dissemination. And third, there is fear of information permanence.

Nowhere do you see these fears translate to realities more than in the case of employment law.

“I represent a lot of whistleblowers for the Securities and Exchange Commission, and recordings can be very, very powerful evidence,” said D.C.-based lawyer Jason Zuckerman. “However, I advise my clients to be very cautious. In certain instances, making a surreptitious recording can violate the law. It can also violate an employer’s policy, thereby giving the employer a legitimate basis to take an adverse employment action. As a practical matter, it’s also my belief that an employee should not make a recording unless it’s really likely to provide a smoking gun. Meaning from a jury’s perspective, how will my client appear if it appears my client was often making a lot of secret recordings in the workplace?”

While a number of states do have two-party consent laws—such as California and Florida—nowadays, many people disregard or have total ignorance such laws even exist.

“These days, under most circumstances, you can’t assume that what you’re doing and what you’re saying is private and isn’t being recorded,” said John B. Harris, a lawyer at Frankfurt Kurnit in New York who works on high-stakes civil matters and white collar criminal cases. “I think if you live in a state like Pennsylvania or Florida, if somebody records you without your consent, you may have the ability to get them into serious trouble. But the classic case is Donald Sterling in California. As a technical matter, the woman recording him violated the law, but the newsworthiness aspect made it difficult for Sterling or anyone to say, ‘Don’t pay attention to the awful things I said, I was illegally taped.’”

But there are still bottom-line rules that can be enforced, particularly in cases where the recordings are invasive or voyeuristic.

“Thankfully, where the law is still very effective is if the person doing the recording is not really present,” he said. “So if you put a microphone or a listening device in somebody else’s apartment or office, it’s literally spying, and it will get you into trouble. Over time, I think people are going to have increasing protection from that kind of remote surveillance. We’ve already seen laws against drones, and I think those anti-drone laws are only going to expand.”

Like all of these technologies, recording devices are a “double-edged sword,” said Matt Aubin of Cyber Investigation Services in Florida.

“In the last two years, I’ve seen a huge spike in the use of hidden cameras to do secret recordings,” Aubin said. “Five or 10 years ago, you had to be an expert to build or modify a hidden camera. Now all you need is to order something on Amazon for $20, and you can get spyware superior to the equipment that the NSA had a decade and a half ago.”

Aubin’s warning stories are utterly chilling: Nasty divorces where one party plants an undetectable pinhole recording device onto a child’s alarm clock which is sent off with the unwitting kid as part of a custody exchange. Couples who employ state-of-the-art internal security systems that record their most intimate activities, which are then hacked and used against them, sometimes only discovered after years of activity. Or a seemingly innocent app on your phone that turns out to be a recording device being used against you. Not to mention some of the folklore stories that turn out to be true: A housekeeper or handyman paid off and let into your home that replaces a phone charger that you have no idea actually contains a bug.

“The one thing I would say is don’t do the adversary’s work for them,” said Aubin who sees about 100 inquiries a week regarding invasions of privacy. “So anytime that you are planting a recording device of your own that can be used to obtain sensitive information or images about you, you have to understand that these can be accessed by an outside threat. Don’t make it that easy.”

Except for the majority of non-Luddites, it is just that easy.

And not just easy, but omnipresent. Everywhere you turn, secret recordings are taking scalps, ruining lives, saving the day or at the heart of a Rashomon-like bitterly contested final determination of what is reality and who is the bad guy.

When it’s noble, it’s very noble: One of Harvey Weinstein’s victims wears a wire and captures a predator on tape. A British man wins justice by secretly recording his disability proceedings.

And when it’s evil, it’s very evil: An Airbnb owner is accused of secretly recording guests for years and violating their privacy in unthinkable ways. A South Carolina deviant captures footage of children when they are naked without their knowledge.

But more than anything—when it’s normalized, it’s very, very normalized.

Particularly in the opt-in Big Brother world of convenience we live in today: Is anyone really surprised that Snapchat recently had to add a warning because so many people were secretly recording Snaps? Or that our smart TVs were revealed to be spying on us?

This month, a small number of the earliest batch of Google Home Minis actually featured a glitch that resulted in 24/7 recording of their owners’ surroundings with all of that data transmitted back to the company. It was a hardware defect that caused the problem (and was in no way nefarious), but it was unsettling to many, including Artem Russakovskii of Android Police, the tech writer who first uncovered and reported the issue after his device constantly kept turning on, attempting to respond to its environment, even at one point taking over his Spotify. When Russakovskii opened up his Google My Activity portal he saw thousands of items recorded.

In his piece, headlined “Google is permanently nerfing all Home Minis because mine spied on everything I said 24/7,” Russakovskii prefaced what happened with a bit of perspective: “Without fail, every time a new listening device comes to market, some tinfoil hat-wearer points out how perfect they would be as modern-day Trojan horses for any of the three-letter acronym organizations—NSA, CIA, FBI—you name it. Manufacturers, on their part, assure us their devices are perfectly safe and only listen when prompted. We brush the concerns off and move on with our lives, but not before granting our smart pineapples (did you know ‘pineapple’ is the codename for Google Home?) access to the smart rice maker, smart vacuum, and smart toothbrush.”

In the aftermath of his brush with a privacy-violating home assistant, Russakovskii reflects on his story, “A lot of people called the term I used—‘spying’—sensational and clickbaity, and it kind of was. But the issue was so serious that I came to terms with it."

The outcry also illustrated just how seriously many still take their privacy.

“I don’t think people have come to think it’s OK to be recorded everywhere,” he observes. “The Google Home Mini story and others like it create huge uproar every time stuff like this comes out.”

But how many outcries does it take until there is a certain shared wisdom that any moment can be hijacked or recorded or disseminated? At this point, why would anybody assume that their every conversation couldn’t very well be captured, downloaded and shared?

Why do so many recordings still bear those most naive words of all: “You aren’t recording this, are you?”

Because at this point in time, even our inner thoughts are fair game.

“There is a company called Emotient, which was acquired by Apple last year, and what they do is figure out a characterization of emotions from video streams,” Weigend said. “You can predict people’s emotions in parallel from video of their faces, and alert, for instance, airport security agents to warning signs. There is clearly no place for a person to hide. Not even for their emotions.”

But as with any informational war, our approach to this new reality of constant monitoring and dissemination does not have to equal a nightmarish reality.

“We as citizens are responsible to turn data into a positive,” Weigend said. “I want society to go in a direction of a world where we want to live in. We need both regulation and technologies, including Blockchain and encryption. Most important is a broad increase in digital literacy. We can’t just trust that the government or Google will take care of us. These are profound questions including what it means to know something and what it means to be a person.”