RFID, "Reasonable" Expectations of Privacy, and the Online Disconnect

In looking at the balance between privacy and security, and the resulting constitutional questions that arise from the somewhat invasive RFID technological advancement, it’s necessary to look at the spirit of the freedom from unreasonable search and seizure protection. The Dalal article focuses on whether or not attaching RFID technology to the underside of a car should be legally considered a “search” (it clearly is not a seizure, unless one makes the stretch that it is a seizure of personal information—but this goes against a lot of precedent). The evidence and precedent also seems to support that keeping track via satellite of the location of a car on a public road is not a search.

The more intriguing and potentially problematic discussion then, is about the word “unreasonable.” Cases like Knotts and McIver define “reasonable” as an expectation of privacy that society would consider reasonable—which means very little substantively. Knotts also set the precedent that technology that enhances police’s natural senses and ability to investigate or monitor is constitutionally valid. At what point does this standard stop working though? If someone is walking around, engaging in some activity in their backyard, which is surrounded by a six-foot tall solid fence, do they have an expectation of privacy? Does an officer’s ability to use intrusive technology depend on his height, since if he is 6’6”, he would be able to see over the fence anyway, meaning the technology could be considered an enhancement of his senses? What about someone who is doing something in his home behind tinted glass? Where should the line be drawn regarding this expectation of privacy?

I think allowing society to dictate the balance between privacy and security has the potential to be a dangerous thing, especially in the age of terrorism that we live in today. National safety has become more of a pressing issue than ever before in the minds of Americans. The widespread fear of terrorism pushes the balance towards prioritizing safety over privacy, and without a normative baseline for maintaining a certain level of privacy, privacy may be increasingly sacrificed in favor of security.

In an online context, it seems to me that people assume their activity is even more private than in the analog world. I don’t think this precedent maps very well onto its digital counterpart, as most people expect a significant amount of privacy within their home, on their computer, while the government sees the online world as a space that extends into a public arena.