Can Privacy Survive?

Posted by: Michael Avila

April 20, 2015

town-sign-83730_640One of the largest concerns of the American Citizen is the question of the right to privacy. With the shroud of the Patriot Act hanging over every action that Americans take and the growing influence of websites like Facebook and Twitter that encourage people to share the details of their everyday lives the question of whether or not privacy is dying out is a valid one. While the law and technology seem to be decreasing the ability of the average person to maintain the level of privacy that they could have expected even fifteen years ago, it still seems important to maintain this right in the face of these growing concerns.

While it seems intuitive to believe that such a right is part of the foundation of the United States, in actuality the idea of a right to privacy was not articulated until Louis Brandeis collaborated with Samuel Warren in a Harvard Law Review Article in 1890 to discuss the need for society’s laws to evolve with technology’s growing influence on the life of the average person. The modern theory of a Right to Privacy arises out of the ideas enumerated in the aforementioned article and in Case Law drawing its foundation from the Fourth Amendment of the Constitution.

In the recent years numerous threats to privacy have arisen with the advent of social media the increasingly effective technology available to the government to, ostensibly, protect against the threat of future terrorist attacks on American soil. While there is certainly an “opt-in” requirement for using social media websites such as the growing giant that is Facebook, how far an employer or anybody else can look into these things still seems to be unclear in the public perception.

There have been numerous stories of people being fired for making comments on social media that disparage their jobs or post opinions that may ruin their employer’s image. Yet people still hide behind the idea that, since they mark their Facebook profile as private, they are shielded from the consequences of their remarks. Some even point to the Freedom of Speech protected by the First Amendment but neglect the language that states that it pertains only to Congress in the formation of laws and not to private entities.

In a similar train of thought, Vint Cerf of Google recently opined that privacy is a historical anomaly that was brought on by the Industrial Revolution and “that transparency is something we’re going to have to get used to.” In a way, this is true. Personal information is everywhere in public spaces, on Facebook profiles showing the birthdays, activities, and thoughts of a given person depending on how much they want to share, and as it becomes more and more commonplace people want to share more as well.

With greater use of the Internet becoming the norm, people’s internet footprints also become bigger, making it much easier for people to connect the dots from what one person believes to be an anonymous post to that person’s real life. Michael Brutsch, a user of was exposed as the user “violentacrez”, the founder and administrator of many (disturbingly) abhorrent mini-communities on the website known as “subreddits”. Through his administration, participation in, and encouragement of such behavior and content he became the target of many people who found his actions beyond the pale. After doing looking through pictures and data available on the Internet, the personality of “violentacrez” was connected to Mr. Brutsch and his life was never the same after this exposition.

While it is difficult, if not impossible, to sympathize with Mr. Brutsch, his situation shows the increasing ease with which people can find out about who supposedly anonymous people are on the internet. The solution to this seems simple: post less identifiable information and be careful of what you say on the Internet even when you think you are behind a veil of anonymity. While this seems simple, it is a difficult task in the modern era of social media. Still, people must be aware that there is no “right to privacy” when it comes to what is voluntarily put on the Internet.

However simple that solution may seem, it does not answer all of the extant threats to privacy. Google recently went through a lawsuit in which their practice of collecting payload data from unencrypted wireless networks through use of receivers in the Google Street View vans was exposed and the court ruled against Google as they found that not only were Wi-Fi transmissions not protected under the Wiretap Act, but that such data was not “readily accessible” to the public. Still, the thought that passwords and other data were so easily taken and in such great quantities is alarming. The average person most likely does not know how to protect against these intrusions, let alone to look out for them. Added onto this is the fact that a company that garners as much good will as Google was behind this invasion, leaving one to wonder whether or not they have made a small change to their motto so that it reads “Do…evil”.

Unfortunately, the previous example only deals with a private entity. The government’s ability to collect metadata of this type is almost limitless under the provisions of the Patriot Act. Due to the lack of transparency, oversight, and ability to disclose provided by §215 of the Act, it is much harder to know when or how to defend against this type of intrusion. The question is, given the stated goals of the Patriot Act should we, as Vint Cerf stated, “get used to [it]”?

In asking this question it is hard to separate fact from theory, In early 2014 the Privacy and Civil Liberties Oversight Board released a report containing the statement “Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.”

Indeed, even the father of the Patriot Act, Jim Sensenbrenner, seems to believe that the interpretation of the act and its provisions have given rise to a vast overreach by the NSA in its authority and supports reform, going so far as to say that “if Congress knew what the NSA had in mind in the future immediately after 9/11, the Patriot Act never would have passed, and I never would have supported it.” This indictment of an Act that Mr. Sensenbrenner authored himself shows just how dire the situation is. It is of paramount importance that we look not only at the language, but what was intended by Congress in the passing of this Act as to not do so allows for the spirit of the law to be broken.

Fortunately, §215 of the Patriot Act is set to expire on June 1st of this year. Hopefully, however unlikely it seems, the government will be able to acknowledge the mistakes made in enforcing this provision and will let that date pass by without renewing it. For however much one believes in the government’s duty to protect its citizenry, an ineffective and overreaching provision that needlessly sticks its nose into the citizens’ lives should not be allowed to continue, not does it seem that it should have existed in the first place.

Now the question becomes whether or not we should accept the fact that privacy is going to be harder to come by as time goes on. As previously discussed, growing technology, social media presence, and the strong desire for security in a post 9/11 world all have created a recipe for decreased expectations of privacy. While, as previously stated, a lot of this available information is of the “opt-in” variety and other information is ostensibly for the protection of the United States and its citizens, we still must ask if it is necessary.

In response to this question it seems intuitive to go back to the origin of those whole discussion and the idea of the Right to Privacy: the theory set forth by Brandeis and Warren. In discussing the case for the privacy they discussed how each law arose out of a new need and a respect for how society was transforming and evolving with the times. We are now faced with a new era with exponentially increasing technological capabilities.

As such it is imperative that the law protect the citizenry from needless intrusions from public and private entities. A person’s home is where they go to be comfortable, to not be judged, and to not fear the consequences of the outside world. To take away that safety through the gathering of personal data (or any other sort of information) without cause is to take away what we have grown to value as a society.

Culturally it seems that we have less to ourselves than ever before. While the theory that while humans were a society that lived in tight knit groups and knew everything about each other seems accurate on its face, at night people were allowed to go home and be away from the prying eyes of their neighbors and, more importantly, their government and those that would have an interest in their habits.

Targeted advertising, the gathering of data, the analysis of threats – all of these sound good in theory but have horrifying implications behind them if not kept in check. A move to serene acceptance of greater surveillance and information gathering without respect to our own safe spaces could lead down a very dangerous path, and although it seems disingenuous to invoke 1984, those fears were valid then and are only growing to be more valid now.

Just because history has not always given humans an expectation of privacy does not mean that we should let it go so easily. Our culture has evolved to a point to where we not only desire it, but we need it in order to feel secure in an increasingly loud and public world. We should take a lesson from those wise philosophers of the past that paved the way for these rights and the expectation of their protection, for to take away a person’s right to make a decision on what to expose to those around him is to take away the only choice that he ever really has.


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