Law / Rights

I Always Feel Like Somebody’s Watching Me: Privacy 2.0

Rockwell and Michael Jackson feel like their privacy is invaded

In 1949 George Orwell wrote 1984. The book was set in a future England that was totally dominated by the state. “Big Brother” was coined in the book as the government had cameras everywhere. Then again in the real 1984, the one hit wonder Rockwell teamed up with the more famous Michael Jackson to write a song in the book’s spirit, Somebody’s Watching Me. Today with the advent of Google Street View, Facebook, Twitter, www.pleaserobme.com, and the ego-centric Kim Kardashian attitude we all possess; privacy is a self-imposed forgotten art form. Oh yeah and if you want to hang on to that shred of privacy you might otherwise have, the Federal Government is there to make sure there are no crumbs left. As government scandal after government scandal keeps beating the shores of it’s citizen’s trust, a few days ago a leak revealed that the government now crawls every corner and dark alley of the internet, scouring over both the innocent and the guilty in one swoop.

The line I have often heard growing up is, “if you have nothing to hide then why do you care?” This occurs in traffic stops, police frisks, and now apparently applies to my facebook account. As if I could break into Mike Tomlin’s house looking for a hint of his closet Raven’s fandom and when he asks what I’m doing there I could simply retort, “if you got nothing to hide why do you care?” Or what if a guy who worked at the NSA broke into top secret government files that showed that the government was lurking behind every Google search. That guy could then say to the government, “if you got nothing to hide then why do you care?” The principal is the same. Privacy is absolutely essential to our right to practice our religion, to free speech, to freely assemble, and our pursuit of happiness. These rights were not created so we could politely talk to each other about the weather but to create and innovate and even have radical ideas.

Don’t get me wrong. We also need to stop crime, we need to ensure safety for individuals. Fortunately our Constitution has a built in safety valve. Its called the 4th Amendment and it requires probable cause for any search and seizure of an individual. A police officer cannot stop you on a whim (or shouldn’t) but needs a really good reason. In the recent NSA case, the government is exploiting a loophole in this Constitutional issue (yes I’m admitting that what they are doing is scarily legal…technically). In the Supreme Court case, Kratz v. United States, the court held that you only have privacy (i.e. Constitutionally protected) where you have a reasonable expectation of it. In other words, your home is a place you can expect the most privacy while walking on sidewalk downtown you have less. This doctrine means that if you talk to a third person you have no expectation that the third party won’t talk to some else or even turn you into the government (or perhaps the 3rd party itself is the government). You don’t have an expectation of privacy after you write something or say something to someone else.

Therefore, because the internet works by sending messages back and forth you are communicating with a third party when you use Facebook, Google, Twitter, etc… Therefore the government comes with its heavy hand to these companies and basically says, “you wouldn’t mind if we had a little look under the hood would you?” (After all you got nothing to hide right?) So this bring us to today. The government then extends this logic so that you have no expectation of privacy of your facebook account as long as facebook consents to the government.

In 2012, a Supreme Court Justice caught whiff of this new disturbing 1984 direction we were headed. In U.S v. Jones, Justice Sotomayor wrote in a concurring opinion about how modern technology could erode previously hard fought privacy rights if not correctly applied, stating,

“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse…I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

Furthermore, Justice Scalia in a recent scathing dissent on the use of swabbing DNA from someone who was arrested (not convicted) of a crime without a warrant, said,

“At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and [a felony case].” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason…I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one will some day be repudiated.”

While we are not George Orwell’s cold society as of yet, a continued slide toward government efficacy and away from individual rights will destroy our society over time.

“They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”- Benjamin Franklin

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