Most the readings we have this week deal with the issue of “reasonableness” when determining whether the right to privacy has been violated. The cases over privacy that have come before the Supreme court often dealt with whether or not law enforcement officials conducted their searches reasonably. Solove and Schwartz tell us that instances of infringement upon personal space are decided on a case-by-case basis. While this detail is presented in context of what it takes for a search warrant to be granted, it also highlights the underlying assumptions that we have about personal space. There is a deep-rooted sentiment that we are each allowed a personal sphere under which no one can penetrate unless there is a compelling reason. However, the technological world is quickly and forcefully challenging these assumptions; whether it’s RFIP chips that contain personal information or password-breaking software, we are now acutely aware of how vulnerable we are in the digital age. Within Dalal’s discussion of the Kyllo decision, he briefly muses about whether the expectation of privacy is a function of whether people are aware of technological capabilities. This aside is quite chilling – does this mean that as soon as one is aware of information gathering software, he is now required to take measures against it, or at the very least acknowledge that he might eventually be a victim of it? Should we accept that these breakthroughs in surveillance warrant a radical change of our understanding of privacy, or is privacy an antiquated concept that hears its death knell?
In reply, to my own questions, I believe that it is up to the citizenry to equip themselves. People now have a compelling interest to inform themselves of threats against their personal security, so I predict that the best response is technological in nature as well. More powerful security tools and proxy shielding software will be in demand, creating a market that will only grow larger as technology improves. This is not to say that law enforcement will be left out to dry, since the Fourth Amendment would still allow for reasonable searches; rather, these measures will solidify the Fourth Amendment protection while keeping people from becoming innocent victims of unwarranted information-gathering.
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How do you reconcile the reasonable expectation of privacy that seems to weaken as technologies develop with the decision in Katz which seemed to say that even though the technology existed to listen in on the phone conversation, there was still a reasonable expectation of privacy that protected Mr. Katz?
ReplyDeleteReese, I think your conclusion is largely in line with way Fourth Amendment jurisprudence has been going. That is to say, once it becomes possible (even if very unlikely) for members of the public to spy on you using "publicly available" technology (whatever that means), then you have a duty to take precautionary measures if you want to keep things private. I wonder, though: don't you think this will lead to (a) an arms race between the police and criminals trying to hide their criminal behavior, and (b) the rest of the law-abiding population left vulnerable to unjustified (and increasing) government intrusion into their lives? At some point, don't we want to erect some solid boundary lines so that there are clear spaces within which we can be sure the government is not spying on us?
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