Posted by: Macaulay Christian
April 20, 2015
If you were to swipe the lock screen on your smartphone, yours, like almost everyone else, would contain a variety of apps, and at least one of those apps would be a social media account, one you use frequently…why else would it be on your phone? Perhaps you’re documenting your life, one selfie at a time with Snapchat, or maybe mean tweeting celebrities with Twitter, stalking classmates on Facebook, or casually swiping people’s faces one direction or another on Tinder. Regardless of why you are on social media or what you do on it, the digital world many of us have grown up in, seems to harken us, collectively, back to a time when there weren’t these walls of solitude erected between me and you. For all of the ways in which computers and the Internet have revolutionized the lives of most of the planet’s seven billion inhabitants, perhaps the most striking, or, certainly the most controversial, seems to be the ever increasingly publicity of the average person’s life for all to see, comment, like, and share.
It is curious to think that a hallmark of human civilization’s technological progression is having an effect on the social and personal relationships of individual people, reverting, in a sense, the nature of those relationships to a status the hasn’t existed for more than a century. It is an interesting line of thought, one put forward by Vint Cerf, who characterized privacy as something of an “anomaly”.
The first reaction, the intuitive, gut reaction is to immediately rebuke the idea as not just far-fetched, but ridiculous. In an article that briefly reviews the historical practices, or lack there of, of privacy in society, going as far back as the ancient Greeks, the evidence gathered suggests that privacy, as a norm, maybe isn’t as firmly rooted as most people tend to believe. The same article makes it a point to state that it wasn’t until Katz v. United States in 1967, that the Supreme Court recognized the “right to privacy”. If we accept Vint Cerf’s assertion that privacy is a relatively new development in human interaction, what bearing, if any, should it have on how we conduct our social media lives and what is the government’s role is respecting that privacy?
What is the constitutional basis for privacy?
If you run a search for the word “privacy” within the text of the Constitution, you’re going to be disappointed to learn that no where is that concept explicitly mentioned. That isn’t to mean that “privacy” is not there or that a liberal interpretation of the text cannot find it. Specifically, it is the Due Process Clause of the Fifth Amendment that includes an implied right to privacy and personal autonomy, with the Ninth Amendment being viewed as an expansion of individual liberties. The Court in Griswold found privacy to occupy zones created by the First, Third, Fourth, Fifth, and Ninth Amendments, broadening the expectation and protection of privacy—the “penumbra of specific guarantees of the Bill of Rights”. Roe v. Wade subsequently determined the “Court has recognized a personal privacy, or a guarantee of certain zones of privacy, does exist under the Constitution”.
The importance of the inclusion of Griswold (a contraception case) and Roe (an abortion case) in a discussion on the merits of privacy in the digital is purely to help establish a context for understanding where this idea of “privacy” is found in the American legal complex. Any average person can compose an answer to why does privacy matter in their lives, even if it isn’t a particularly good or original one. For many of us, privacy is something that has been socialized and imprinted. That is what makes this privacy revolution feel like it is a revolution as opposed to what it really is, a revursion.
Juxtaposing Privacy Concerns with Privacy Reality
Think back to the social media outlets we touched on at the beginning. For each of them to work as a business, the users have to provide content, continuously. Facebook does not generate content. No one logins into Facebook day after day to follow what “Facebook” is doing today—we want to see our friend’s ALS ice bucket challenge video, we want (or not) to see the endless stream of pictures of cats our aunt posts, we want to like or comment on someone’s status update. We want access to information. We want to share information. We want information. Information is difficult to acquire if everyone is being private, shielding themselves away in locked towers of self-imposed social isolation.
There is little that isn’t shared on social media, good or bad. The typical user and their network of friends, will post everything from messages about a recent death in the family to asking for positive thoughts be sent their way as they prepare for a major life moment. Think of the information you willingly share on a regular basis. You’re allowing those who otherwise might not be able to experience those moments with you to still be a part of your life, even if just passively.
Take a look at the chart:
While Millenials make up the largest demographic share of social media, every age group participates in substantial numbers, numbers which are only going to grow as each group ages and matures, but continues to be a node in the global connectivity. Anyone with a cell phone and decent WiFi can capture, upload, and contribute. CNN has tried to co-opt this as crowdsourcing journalism with CNN iReport. Recently one of the dates to Sigma Alpha Epsilon’s formal captured, uploaded, and contributed a racist chant that made national headlines, led two students to be expelled, multiple investigations, and likely forthing coming lawsuits. All with a twenty second video.
Even for those who take an active effort to abstain from social media, that doesn’t mean someone, somewhere isn’t able to contribute your actions for the rest of us to see. It is not too disimilar from the cookies on the websites you visit which allow for better targetting of advertisements; you are always being watched and recorded. When combined with revelations such as the metadata gathering programs conducted by the National Security Administration (NSA) under the authority of Section 215 of the Patriot Act, it is understandable how and why there should be concern as well as discussions regarding the evolving role of privacy in society. It is important to underscore here, however, that, short of abandoning all of our digital technology and a return to an analog world, the privacy that we enjoyed throughout the 20th Century is gone, and isn’t coming back.
Vint Cerf said that privacy might have been an accident of urbanization. Maybe it was. Perhaps he is right about that. But, it nonetheless exists. It exists in a time where society is grappling with whether it is something to be preserved, done away with, or something in-between. Smith v. Maryland, a 1979 case, is sort of anecdotal to the emerging privacy debate today. In the case, at the request of the police, a telephone company installed pen registers at its central offices to record the numbers dialed by the company’s customers. The facts, generally aren’t as interesting as the what the court had to say. There were two questions that had to be answered: First, whether the individual possessed an actual (subjective) expectation of privacy, and second, whether that expectation is one society would recognize as “reasonable”.
In finding that Smith probably did not have an actual expection of privacy (that the phone numbers he dialed would remain confidential) or that he had a reasonable expectation of privacy (as those numbers were communicated to the telephone company for connection) the court may have doomed those who harbor apprehension or outright resentment at the idea of eroding privacy. It may not matter that an individual does not want to be connected to social media when the vast majority of those they encounter in their daily lives have the means to connect them. There does need to be a conversation on privacy in the digital age, but there also needs to be a stark admission that privacy as it was is dead.