What's Left of Privacy

-- By RickSchwartz - 07 Mar 2009

This paper is a very loose adaptation of the beginning of Warren and Brandeis' "The Right of Privacy."

Living in a Material World

That the individual shall have full protection of privacy is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speak secured to the individual the the right to speak anonymously only when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its need to know. Gradually, the scope of these rights contracted, and now the right to privacy has come to protect physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(1) and only insofar as the government is culpable in its violation.

Intrusion Upon Seclusion

With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of "placiness." From the action of intrusion upon seclusion grew the right of privacy,(2) which barred the government's use of evidence obtained intrusively at trial.(3) Not much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." Regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "curtilage" of the home. But even here, law enforcement needs were met with a mean fiction that privacy could no longer be expected once the tools of surveillance were in public use.

Watching What the Watchmen Watch

This development of the law was inevitable. The intensely interactive and scrutinized life, and the heightening of surveillance by private entities that came with the advance of networks, made it clear to men that only a part of one's identity lay within physical seclusion. Observed thoughts, queries, and activity demanded economic exploitation, and the capacity for deference in the common law allowed judges to uphold schemes of waived privacy, enabled by the interposition of the legislature.(4)

Recent technologies and business methods call attention to the last step that has been taken toward the unraveling of privacy. The subpoena of corporate data miners became part of the state's strategy of surveillance and evidence-gathering. For the state, private surveillance was necessary and anonymity was unacceptable. Reacting to technologies of anonymity, surveillance has been inserted into the architecture of the network itself, much like illegal wiretaps that would be unconstitutional if performed by the state, and should be illegal but for questionable legislative intervention.

Redress?

Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the chilling of free communication by virtue of the state's access. However, the injury is so ill-perceived or ignored that a constitutional challenge would surely fail. A legislative solution might be met with more constitutional approval, but the state's interest is to ensure that such surveillance remains available. Thus, the prosecution of ISPs' user-surveillance under the wiretapping prohibitions and comprehensive "net neutrality" seem unlikely.

Perhaps speaking in Navajo is the last vestige of self-help available to free people against the state? At least, as long as speaking in Navajo does not create a presumption of trafficking child pornography or terrorism.

Notes

1 : Consistent with Bork's critique of Griswold v. Connecticut, courts have denied protection for digital privacy absent some "constitutionally-grounded" "reasonable expectation of privacy."

2 : Prosser refined Warren and Brandeis' thesis and argued that "the right to privacy" could be found from the recognition of four separate torts (appropriation of identity, casting a false light in the public eye, public disclosure of private facts, and intrusion upon solicitude), all unified by the underlying "right to be left alone."

3 : Frustrated by this limitation, a federalist subversion of the exclusionary rule (the silver-platter rule) allowed the federal government to search by proxy until 1960.

4 : See, e.g., Nat'l Cable & Telecomms. Ass'n v. FCC, 2009 U.S. App. LEXIS 2828, at *14 (D.C. Cir. 2009) (noting that "It is widely accepted that privacy deals with determining for oneself when, how and to whom personal information will be disclosed to others," while upholding the FCC's opt-in scheme of customer information collection required under 47 U.S.C. § 222). Though an opt-in system may enable some protection against disclosure of private information, this scheme will not result in significantly greater privacy protection than the pre-existing scheme. See 22 F.C.C.R. 6927, *65 n.117 (2007) ("We do not believe that this minor change to our rules will have a major effect on carriers because many carriers already do not disclose CPNI to third parties."). Furthermore, even if rights against misappropriation of identity and public exposure of private facts are voluntarily waived, data collection often occurs outside the context of such an agreement or may result in the surveillance of parties who do not so waive these rights by process of elimination or inference (e.g., information about the person called is also collected through the caller).