In the opening scene of “Crazy Rich Asians” (which is a delightfully entertaining and engaging film), the previously private romantic relationship a wealthy young man has with a not-so wealthy young woman is revealed to the entire world in the space of but a few minutes. The scene ends with the young man receiving a phone call from his mother questioning him about the relationship. She is in Singapore; he is in New York City. The mother had just learned of the relationship from her friends who received the news via tweets, texts, and emails from many of their friends.
The amazing thing about this otherwise funny scene is that it is entirely believable. It begins with a surreptitious cell phone photo of the couple taken by a stranger as the lovers have lunch at a restaurant. The stranger immediately sends the photo to a gaggle of her friends who then forward it to so many more of their friends. As the photo is further disseminated (as today’s social media platforms allow and even encourage), it quickly goes “viral,” passing over and through geographic and political borders so that it is received by the mother’s friends only minutes after it was first taken.
The scene ends with the mother questioning her son about his new girlfriend and with the son expressing mild amazement that she knew about the romance since he was quite certain that neither he nor his girlfriend had told anyone.
Contrary to the reality that scene exemplifies, privacy used to be precious, so precious that back in 1967 the Supreme Court declared in a landmark case that the privacy right guaranteed by the Fourth Amendment’s proscription against illegal searches and seizures protected people, not places. In other words, the Court was saying, the right to be free from government intrusion into private conversations was personal and existed wherever a person might seek privacy. In the specific case, Katz v. U.S., the Court announced a simple test for determining whether an individual’s claim of privacy had to be respected. The test was whether the “expectation of privacy” was reasonable.
In the case itself, Mr. Katz had been making phone calls in a public phone booth. (Back then, fully enclosed booths for making phone calls that you paid for with coins were ubiquitous). The government suspected that Katz was discussing illegal activity on these phone calls, and so it secreted a recording device in the phone booth, thereby seizing the conversations Katz was having. The Court held that even though the phone booth was a public place, Katz’s expectation of privacy when he closed the door to the little cubicle was reasonable and deserving of protection.
Fast forward fifty years and we can see how little of that expectation of privacy is left. Phone booths no longer exist in most of the civilized world. Instead, cell phones are operable everywhere and anyone can use a cell phone to take a photo of anyone. Those photos can then be sent to anyone, anywhere, via any number of readily available social media platforms. Thus photos can go viral, and private romances can become something everyone knows about as can just about anything else that can be seen directly or, through enhanced satellite technology, remotely.
But smart cell phones aren’t the only devices that are destroying our expectation of privacy. Have you ever had this experience? As you begin a Google search for a restaurant, you are suddenly confronted with ads for resort hotels. Or maybe as you begin some online research to determine which actor appeared in a movie you and a friend were discussing, you are presented with a list of books about historical events. Or perhaps as you seek the score of your favorite team’s game that night, you are shown how to buy tickets to games for other teams that you also follow.
All of these instances, and countless others like them, are the result of the loss of privacy in our Internet world. Instead of being able to keep your interests to yourself (if you so choose), you are “assumed” to have wanted to make those interests known to the entire world by merely visiting a web site or “window shopping” online for an item that you really have no intention of buying. You’re just curious about something that you’ve heard about or that a friend mentioned to you and suddenly the cyberspace universe knows of your “interest” and “assumes” you are a potential customer.
The issues of privacy rights and the expectation of privacy have been revisited by the Supreme Court in the context of the voluminous amount of information that can now be stored on today’s cell phones. In 2014, the Court held unanimously in Riley v. California that warrantless searches of the contents of a cell phone are unconstitutional. The court thus implicitly acknowledged the value of privacy in the digital era. But modern-day society may be outpacing the Court in the way we use our cell phones in combination with the social media platforms that allow things like the scene in “Crazy Rich Asians” to be all too real.
How much privacy do we really have in 2018? How much will we have in another five years? The answers to those questions, in order, are, indisputably, far less than we used to have and far less than we have now. Compare where we are now to where we were just twenty years ago, before the explosion of the Internet and the advanced development of cell phones. Then, the legal doctrine of plain view (whatever can be seen is not private) meant only that if you were observed in a certain place with a certain person, the person seeing you could report that fact to others. You had relinquished your privacy right.
The same theoretical principle applies today, but the technological advances have made it possible for that single person to reveal what he or she saw to the rest of the world almost instantaneously (as in the scene that opens “Crazy Rich Asians”). And we all implicitly know that fact, which means the “reasonable expectation of privacy” has lost its significance or, to say it another way, the idea of privacy in public settings no longer exists.
In another five years, what is left of privacy will be reduced further still. As technological advances increase our ability to do and see and learn and experience even more than we can today, the parameters of what is truly private will be even less clearly apparent. Even now, intimate details like the size of our home, which room in our house is the master bedroom, when we usually retire for the night and when we rise in the morning are knowable. But with the advent of artificial intelligence, we may soon see a time when robots will be collecting data that can be collected much as Google searches can be now.
The robot house cleaner of tomorrow may also be the unintentional “spy” that reveals what we do in that master bedroom when we retire for the night, and just whom we are doing it with.
It will most certainly be a brave new world, and big brother will most likely be watching.