Posted by: Vikram Amritraj
April 19, 2015
Today, we generally think about the concept of privacy as something of an inherent right. Just the thought of others having access to our intimate actions or thoughts invokes a sense of intrusion and unrest. However, this was not always the case, and the social notion of ‘privacy’ as we know it may be a relatively new development, a function of new technologies and a changing society. Given this context, is the current battle over privacy in cyberspace a reasonable one? I would argue that it is, mainly because privacy is a fluid, societal concept and we need to figure out what it means to us in today’s interconnected world.
It is impossible to discuss the right of privacy in America without first mentioning The Fourth Amendment, the American bedrock of a right to privacy. The Fourth Amendment was meant to protect Americans against unreasonable governmental intrusions against personal property to which they had a reasonable expectation of privacy. In most situations, a government official would be required to obtain a warrant (possible with probable cause or reasonable suspicion) prior to invading one’s reasonable expectation of privacy. Although this right has existed since 1791, it’s important to understand that such a right is only enforceable against government officials and not private third parties.
In fact, the social notion of privacy in early American communities may have been very different than the notion of privacy from the government after the passage of the Fourth Amendment. For instance, Puritan laws in the 1600s held that it was a civic duty to watch your neighbors and make sure they were living moral lives. Additionally, most aspects of people’s everyday lives were displayed for the entire community to see and hear. In an agricultural America, it may have been true that everyone knew everything about each other, so social privacy wasn’t necessarily a concern. This began to change in the 19th Century with the advent of new technologies that bred a higher level of paranoia in the community for one’s privacy.
In 1890, The Harvard Law Review published legal scholars’ Samuel Warren and Louis Brandeis landmark piece, “The Right to Privacy.” Warren and Brandeis advanced they notion that the common law should grant people the right to be able to determine “to what extent his thoughts, sentiments, and emotions shall be communicated to others” and is based not on property but upon “the more general right of the individual to be let alone,” not just from the government, but from other people as well. This idea was influenced in large part by Eastman-Kodak’s introduction of the handheld portable camera as well as their observations that yellow journalists (scandals and gossip reporters) were viciously overstepping societal norms of decency. Thus, Warren and Brandeis believed the protection of one’s privacy from all third parties did not previously exist, but should exist due to emerging technologies and changing times.
Over the course of the next 100 years, the majority of states adopted a regime of privacy torts, which protected among others, intrusion upon seclusion and the public disclosure of private facts. Therefore, the Fourth Amendment coupled with the new common law right to privacy in the 20th Century emerged as comprehensive protection to an individual’s privacy against both the government and private third parties. However, the emergence of technologies like the telephone required new considerations regarding 19th Century notions of privacy. The most important shift came in the late 1960s.
In 1967, Charles Katz challengedt the U.S. government for violating his Fourth Amendment rights when he was convicted using information obtained via a wiretapped phone booth he used in communicating illegal gambling wagers. In a 7-1 decision, the Supreme Court ruled that where one has a reasonable expectation of privacy, an electronic intrusion can violate one’s Fourth Amendment rights just as a physical intrusion would. Importantly, this decision made wiretapping subject to the Fourth Amendment, its procedures and exceptions.
The Katz court shows that it was just under fifty years ago that we rolled up one’s reasonable expectation of privacy in their electronic communications as a Fourth Amendment concern. Prior to that, this security was largely limited to physical things; “persons, houses, papers, and effects.” This is yet another direct example of how technology can change the way we view our rights. So where does that leave us today? We have a well-established right to privacy against the government and against third parties in both our physical things as well as our electronic communications and property. While this all sounds good, the emergence of new technologies and changing societal conditions does not always cause us to view our rights more expansively, but they may cause us to give them up as well.
Two major developments in the last twenty years have shifted the status quo of privacy yet again: the emergence of the internet, and the increased fear of terrorism in a post 9/11 world. The internet emerged as an open research tool in the 1990s, a way to share information without any concerns regarding privacy or security. As we all know today, the internet expanded from its humble beginnings into a world wide web that is intimately integrated into our daily lives. Our everyday communications and activities, whether by voice, text, social media post or otherwise is all done via the web. These digital communications are of a breadth and scope we have never seen before, and the nature of who/what companies are involved in those communications makes it all the more complicated for privacy concerns.
Software companies like Google are increasingly at the center of our lives on the internet and are also capitalizing on a phenomenon known as “big data.” Simply stated, big data is a term of art that generally refers to the plethora of information we consumers voluntarily hand over to companies in exchange for their services. From financial institutions to your Google search history, hundreds if not thousands of companies aggregate this data and sell/share it with other companies in order to not only better their services, but also to make a profit. In fact, this process has become so conventional that it is not uncommon for people to have absolutely no idea where or with whom their personal information sits. This very idea of one’s personal information floating around the web seems to be an anathema to the right of privacy in our electronic communications. The key difference between software companies aggregating and sharing your information rather than third parties in the past is that we voluntarily and knowingly give the information up today.
Social media sites like Facebook and Twitter are common platforms for people to voluntarily divulge every excruciatingly minute detail of their lives. In doing so, people freely post intimate facts about themselves and hope only the ‘right’ people will see it and have access to it. While this can be brushed off as simple bad judgment, other companies like Google collect an unbelievable amount of data about customers using any of their services including Google search and Gmail. While you may think you have not given Google permission to look at any of your “private” information, think again. The license agreements we all generally “accept” without reading contractually consents us to all of Google’s (and every other software company’s) big data activities. Furthermore, even without the license agreement the well established third party doctrine states that we don’t have a reasonable expectation of privacy toward information we share with a third party. When we are using any number of services online, we may fall squarely within this third party doctrine exception to what we expect to be private.
The emergence of the internet is just one piece of how we have begun to shift towards loosening the grip on privacy. Another piece comes in the form of legal exceptions toward government access of private information. After 9/11, American paranoia about potential terrorist activities caused a shift in the way we view our security. Because of the mindset that we needed a heightened level of security, Congress passed the PATRIOT ACT. In part, the act increased the government’s surveillance powers with regards to the interception of and access to stored wire and electronic communications as well as its powers under the 1978 Foreign Intelligence Surveillance Act (FISA) of electronic surveillance, pen registers and ‘tap and trace’ devices. While the provisions are somewhat complicated and specific, the general idea with regards to the activities Americans engage in online is that the government can request that big data software companies hand over all of your information without you knowing it. The trouble is that it doesn’t stop there.
Under the current legal regime, and due to the practicalities of cyberspace, we live in a world where we voluntarily give up all of our information to third parties and then grant government almost unfettered access to it. However, a very crucial distinction is that the government is legally only allowed access to transactional data or metadata (information regarding the communication but not the content of the communication) unless they obtain a warrant. However, high profile revelations about the NSA from Edward Snowden as well as the existence of the NSA’s Project Prism (a hard hack that collects information directly from servers – no ability to separate metadata from content) shows that the government is greatly overstepping its boundaries with regards to the type of information it collects from us. While this is all done under the guise of security and protection, the social effect of these kinds of actions regarding how we view our privacy is important as well.
Our perception of privacy is clearly an ever-changing ideal, and we should embrace how society feels about it and whether or not we want to protect it. In a pre-industrial era, our privacy concerns were far less – probably because in communities where everyone knew everything about each other, every person knew who had their information, and that was generally a small group of people in walking distance from where you lived. In today’s interconnected world, the clamor over privacy comes from the uncertainty of not knowing who-knows-what about us and where in the world they could possibly be. In short, the privacy fears of today may be much greater than in times past.
Additionally, the post-9/11 world is a tough time for the security/privacy conundrum. While unfettered government access to everything we do online may have the potential to thwart terrorist activity, such access necessarily changes the security we have toward our own everyday communications. I’m not prepared to make the argument that society no longer values privacy and that we should just accept the state of affairs as is, but I do think actions speak louder than words. In today’s society, it seems as though our actions are clearly indicating that privacy is a thing of the past. Is that true? Only time will tell.