-- By AlexPadilla
The right to privacy provides one of the most fundamental protections in the United States, the comfort of knowing that one is shielded from the public eye within the confines of their own home. Inherent in this proposition is that bad actors will use this protection in order to protect illicit activities from prying eyes. However, American society has determined that there is greater danger in the arbitrary invasion of an innocent individual’s home than the reasonable, but unsubstantiated, search of a malicious actor. Implicit in this acceptance of possible protection for criminal activity is the value judgment that not all individuals who seek some form of privacy are up to no good.
The right to privacy is not as simple as a prohibition against searches and seizures of a person, or a place deemed protected by a reasonable expectation of privacy. In many ways the right to privacy is better understood as a right to anonymity. First the right, as much as it applies to items, applies to actions. For example, illicit drugs, as innate items, are not themselves illegal, rather it is the possessing, using, and distributing of these items which itself constitutes an illegal act. When searches and seizures are conducted, they reveal these illicit items which carry an inference that the individual has committed an illegal act. The revelation of an illicit item is enough to infer the simple illegal act of possession. But in cases where more than mere possession is required more intrusive investigation into an individual’s actions may be required.
Considering the right to privacy as a right to the protection of anonymity of action demonstrates that anonymity of identity is a natural outgrowth of existing constitutional protections. Although critics may claim that only guilty individuals wish to remain anonymous, it is clear that ordinary citizens have their own legal reasons for wishing to remain anonymous. Anonymity of identity has been harder to protect because traditionally it has been difficult for an individual to hide their persona when they step outside the confines of their home. However, anonymous online personas have essentially flipped the privacy equation on its head. Instead of easily hiding one’s private actions, individuals can now easily hide their identity, or at least establish their desire to remain anonymous, while their actions online have become increasingly difficult to shield from prying eyes. This is where understanding that the right to privacy as the right to anonymity helps to properly balance the privacy equation in the modern age.
The right to privacy is better understood and adapted to the modern age as a right to anonymity. First, as a right to anonymity of action when traditional constraints allowed for such protection. Now, with the advent of newer technologies, as a foundation for adapting current protections in response to the degradation of anonymity through non-existent differentiation between actions and identities. By focusing on the right to privacy as a desire for actions to remain anonymous, the doctrine allows flexibility to protect anonymity of action through anonymity of identity when actions are no longer plausibly anonymized.
The need to adapt the right to privacy is urgent when considering that individuals lose their sense of autonomy once anonymity ceases to exist. Present generations will continue to expand their own autonomy by selling the autonomy of future generations without the expansion of existing constitutional protections. Overtime the free flow of thought and expression will wane and the diversity of development of new thoughts and expression will cease to exist along with it. Such an environment threatens the dynamic environment necessary to the maintenance and progression of a flourishing democracy adaptable to the problems of its times. Nothing short of the continued existence of democratic society is at stake when individuals assert that “only criminals care about remaining anonymous.”
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.