Is Privacy Still Relevant? The Government’s Ever-Increasing Ability to Know Everything

Those who would give up essential liberty for a little temporary safety deserve neither liberty nor safety.

-Benjamin Franklin

George Orwell only guessed at the means, but he had the result pretty clearly identified.  In “1984,” his futuristic tale of a land where Big Brother knows everything, privacy is virtually non-existent, as the government has elaborate video and audio devices set up just about everywhere.  The goal in this dystopian society is complete thought control, with the perpetuation of the government, which exists primarily to serve the top two percent of the population, as the ultimate result.

Orwell wrote his masterpiece in 1949, long before most of the eavesdropping and wiretapping devices he prophesized about were in existence.  But the idea that individuals should be free from government oversight and involuntary inspection was not new, either in Great Britain or the United States.  (Orwell, it should be remembered, was British, and his fictional Oceania was focused on British, rather than American, society.)  What Orwell explored in his fictional depiction of the totalitarian society of Oceania was not just the loss of privacy, but the loss of the expectation of privacy in personal affairs and activities.

In the United States, privacy had been assumed by many to be in the Constitution long before the Supreme Court actually recognized its implicit existence through a series of cases, most of which interpreted provisions of the Bill of Rights (the first ten amendments to the Constitution).  In fact, the founders did not specifically note and protect individual privacy in the original text of the Constitution, and even in the first ten amendments (enacted within a few years of the passage of the Constitution), the word “privacy” does not appear.

But, over the course of several decades in the middle of the last century the Court did patch together what is now generally recognized as a constitutional right to privacy.  What is still unresolved is how that right affects the ability of the government to detect possible criminal/terrorist activity that threatens the general welfare of the populace.  And that issue is now in heavy debate because of the revelation last week that the government has been maintaining extensive records of private matters (e.g., telephone calls and e-mails) that potentially cover every American citizen.

To the extent that the Court has provided a definition of constitutionally-protected privacy, it comes largely from a 1967 case (Katz v. U.S.).  In Katz, the court identified as “private” something that an individual reasonably expects to be so.  Thus, in order to contest a government search of communications (e.g., wiretaps, phone records, Internet usage, e-mail recipients), an individual has to assert both that he or she had a subjective expectation that the communication (or the record of it) would be private and that that individual’s expectation was reasonable.  In other words, it isn’t enough to say, “I claim my right to privacy.”  That claim has to be deemed “reasonable” under the circumstances.

As to what is reasonable when it comes to private matters, the Court has given precious little direction, other than to deal with specific instances of searches and seizures in criminal matters where the defendant in a case seeks to use the “technicality” of an illegal search (i.e., a search of something in which the defendant asserts a reasonable expectation of privacy) to keep the evidence seized from the search out of court (commonly known as the “exclusionary rule”).

But one idea that was early recognized by the Court as a way to identify what is not a reasonable expectation of privacy is where the individual leaves something in “plain view.”  So it is widely accepted that if you are traveling on the public highway, you can be followed by a police car.  And if you are growing marijuana plants in your back yard, those plants can be photographed by a surveillance plane.  And if you are speaking in a public restaurant, your conversation can be recorded.

The logic of each of those circumstances is that you are doing something in such a way as to indicate that any expectation of privacy you might have is not reasonable, because anyone can see or hear what you are doing or saying.  But note the progression of acts by the government needed to intercept the activity in each of the three examples I just mentioned.

In the first, the car the individual is driving can be seen by anyone; thus the police (government) action of following it is something anyone could presumably do.  Hence that claim of “privacy” as to the path taken by the car would not be reasonable.

In the second instance, yes, the marijuana plants could be observable by someone in a plane flying overhead, but most people would not think to look into another person’s back yard, and few would go to the lengths of flying a plane over it to observe the vegetation growing there.

And in the third situation, some would say that restaurant conversations, even though they take place in a public setting, should still be deemed “private,” unless the individuals are speaking at such a high volume that what they are saying can be heard at adjoining tables (which is usually not the way “private” conversations at a restaurant take place).

Thus, the level of government “intrusion” must also be a factor in deciding whether the conduct that is being “searched” is private.  And so the Court has ruled in a number of cases, most recently, for example, denying evidence of a car’s movements gained from a GPS device that was secretly installed on the suspect’s car and then tracked for 28 days.

Now, on top of all of those considerations, add the element of threats of terrorism, meaning indiscriminate attacks on the general populace, as in the 2001 9/11 attacks and the recent Marathon bombing in Boston.  And then consider how much privacy you have in your Twitter account or in your Facebook page or in the emails you send to companies you do business with.

What is your expectation of privacy?  Is it reasonable?  Big Brother wants to know.