What's Left of Privacy v.2

Introduction

Discarding the style to save the substance seems entirely warranted. Though I myself am not sure what my "usual project" entails, a sober assessment of what remains within the right to privacy was my aim, in light of the fact that "privacy" is a term used by legal scholars without much understanding of its actual present contours. The right to privacy was originally "found" by Warren and Brandeis within the torts of appropriating the individual's identity for the private benefit, placing the individual in a false light in the public eye, publicly disclosing private facts about the individual, and unreasonably intruding upon the seclusion of solitude of the individual. Regardless of legal academia's approach to privacy, real world conditions have altered the landscape of privacy more than doctrine could possibly reflect.

Where We Are

Talk of "reasonableness," "state action," or "penumbrae" seem like futile limitations on the exchange of information between the state and private parties that have been invited to scrutinize one's identity. Ever since the qualified "reasonable expectation of privacy," was balanced against the state's "legitimate needs of law enforcement," the right of privacy was doomed to be whittled away by active private interests. Indeed, the Supreme Court chose to "authorize the carefully limited use of electronic surveillance," while prohibiting only physical intrusions into places where intimacy might be injured, without concern for intrusion into intimacy itself. After all, the Fourth Amendment was "to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens."

To the state, the public interests included assuring that the right of contract allowed the people to exchange their "unused" privacy rights for minimal monetary gains in the form of free (as in beer) services. Whether oblivious or indolent to increasing surveillance by private entities that subtly came with network usage (perhaps not detecting the deferred disruption of seclusion), individuals welcomed wholesale intrusions into privacy on the belief that it was required to get the stuff they wanted. On a policy level, observed thoughts, queries, and activity demanded economic exploitation, which presented an interest the judges could not deny in the face of "voluntary waiver" by the public.(1)

Try as the free world might to undercut these exchanges by providing substitutes, privacy is ceded in the non-digital world as well. Cell phones and state-sanctioned ISP oligopolists create personal wiretaps that need not intrude upon physical seclusion thanks to the protocols and network tools used by the data-hungrycell phone manufacturers and spectrum licensees. Not only is data used for private exploitation, but prosecutors and the CIA alike avoid the Fourth Amendment entirely by simply demanding the data already being collected by private parties.

The Law in a Digital Age

Analogizing the interception of digital communications to those requiring physical intrusion, courts seem willing to protect the content of digital communications, where individuals could claim some "reasonable expectation of privacy," though "pen register" surveillance of data used to route the communication and recipient phone numbers have been upheld in courts. Perhaps extending the analogy too far, courts have also found that no "reasonable expectation of privacy" can exist in online fora "open to the public." This result is problematic because, unlike speaking in a building open to the public, what is said in an online forum is probably immortal after the End of Forgetting. If the "reasonable expectation of privacy" analysis persists after the End of Forgetting, the reasonableness of expecting data protection or limitation will diminish, given how easy it is to store data. Unlike Kyllo, hard drives are widely used by consumers, which would not create any grounds for protection. If not for the state action doctrine, and the lack of a corresponding silver platter rule, preventing the Fourth Amendment from applying directly to data miners, one might try to attack such searches using Kyllo's logic on the grounds that the cookies and algorithms collecting such data are not in general public use, but that is not the world we live in.

Redress?

The invasion of privacy in the digital age 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, as stated, 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. Privacy will remain lost as long as people continue to give it away.

-- RickSchwartz 27 Apr 2009

Notes

1 : 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) (relying on the mistaken assertion that "this minor change to our rules will [not] 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 disclosure 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.