The Price We Shouldn't Have to Pay

-- By MichelleXiao - 01 Mar 2024

Olmstead v. U.S.: Setting the Stage for the Invasion of Privacy

In Olmstead v. United States (1928), the government suspected Olmstead of being the “leading conspirator and the general manager… of a conspiracy to violate the Prohibition Act” (277 U.S. 456). The government gathered information leading to the discovery of the conspiracy in large part by “intercepting messages on the telephones of the conspirators” (Id. at 457). They did so by tapping the defendants' house lines in the streets near their houses but without any physical trespass upon any of the defendants’ properties. Olmstead argued that tapping his phone conversations violated the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated." However, the Court found that there was no search or seizure as defined by the Fourth Amendment when the government listened in on Olmstead’s calls. The Court also argued that the language of the Amendment “cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office,” arguing that the wires that were not part of Olmstead’s home or office belonged no more to him as the “highways along which they are stretched.” (Id. at 466).

Katz v. U.S.: A Small Resurrection of Privacy

It took 40 years, but privacy concerns were finally addressed and honored in Katz v. United States (1967). Katz was convicted of violating federal gambling laws, and the leading evidence against him were phone conversations in which the government obtained by wire-tapping a nearby line to the public phone booth Katz used. In this case, however, the Court argued that Olmstead had been eroded and that the government’s wire-tapping “violated the privacy upon which [Katz] justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment'' (389 U.S. 354). The Court clarified that the spirit of the Fourth Amendment was to protect U.S. citizens against unlawful government intrusion, and this protection was not limited to the physical place of the home.

The Ineffectiveness of Constitutional Rights to Protect Personal Privacy Now

The sentiment behind the Court’s decision in Katz v. U.S. was correct, but none of it is enough to protect the privacy of everyday citizens now. In Griswold v. Connecticut, the Supreme Court established an implied right to privacy through the penumbras of other explicit constitutional protections from the First, Third, Fourth, Fifth, and Ninth Amendments. However, none of these constitutional protections is enough to protect citizens now from corporations that are invading their privacy in even more evil ways than the government had done in Olmstead and Katz.

Voice-Activated Assistants

For example, any device with voice-activated assistant tools are always listening in on your conversations. Siri on your iPhone and Google Assistant on Google Home advertise to only engage once they are activated with key words like “Hey Siri” or “Hey Google.” However, these devices are listening to everything you say in order to hear their key activation words, and it isn’t even an invasion of privacy in the legal sense because you agreed to this in the Terms and Conditions of these devices. The listening and recording of personal conversations that user have with the expectation of privacy feels similar to what the government did in Olmstead and Katz. Perhaps this makes sense with specific virtual assistant devices like the Google Home, but it feels different knowing that smartphones automatically begin this process if you purchase the phone, even if you never use Siri.

Selling Your Information

It is already unsettling to know that simply because you possess a device with a virtual assistant, you are being listened to at every moment of the day. However, it is even more unsettling what they do with this information. Google and Apple are constantly building profiles on you, tracking your likes and dislikes, interests, and even your sex life. Every single thing you’ve said or googled mapped out onto a digital profile. Then companies like Google put this information onto sites like Google Adsense to give third parties the opportunity to bid on how much advertising space they want to purchase for you. For example, if I have an interest in jewelry, Google lets third-party advertisers know they have a user like this, and these advertisers then bid in real-time for the same advertising spaces of the next page I load. While this targeted advertising feels particularly manipulative to consumers, it doesn’t technically break any laws regarding privacy because Google is not selling your actual information. The real-time bidding that third-party advertisers pay for is the advertising space, not the actual consumer data. And even if these companies did sell your actual data, what would it matter if you signed the Terms and Conditions?

The Price of Privacy

This is why constitutional privacy rights are useless in the digital world. There may not be a reasonable expectation of privacy when you Google things outside incognito mode, but there should be when you have a phone call or text with your loved one. Many may believe that this is the price we have to pay for convenience–that because we have a choice to not use Google, it is acceptable for Google to compromise our privacy or because we want a smartphone, we have to pay the price. However, what real choice do consumers who don’t want to spend every waking hour in the library to find answers have? What choice do employees who need to work on phones with internet access actually possess? Why does this have to be the price we pay? “The price we have to pay” is a mindset that blames the consumer for changing with the times, instead of holding multi-billion dollar tech companies accountable for finding loopholes to legally invade our privacy and profiting from doing so.

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