The Unreasonable Expectation of Privacy

Following the disclosures of the NSA's accumulation of every communication ever made by every person in the United States, debates rage over whether the leaker, Edward Snowdon, is hero or traitor, whether the government's action was lawful or proper.  Good and important arguments, but unavailing.

What is known, conclusively, is that technology allows this to happen and the law has not prevented it. The true distinction between the Orwellian world so many of us fear and the disclosure that we've been living in it for, well, at least a while now, is whether those branches of the government expected to adhere to the law, honor the Constitution, would do so if the judicial branch said so.

The problem is that the government, from Congress to the Supreme Court, have fallen so far behind the curve of technology that its reduced itself to a nullity in these debates. Exhibit A is this post by Orin Kerr at Volokh Conspiracy about a 9th Circuit decision that, had it come out a month ago, would have made for an interesting discussion.

Can Anyone Intercept Unencrypted Wireless Communications?

Google argues that the answer is “yes,” in this oral argument today in the Ninth Circuit in Joffe v. Google.   It’s an interesting question as a matter of statutory interpretation, largely because Congress wasn’t thinking about wireless Internet networks when it was writing about “radio communications.”  The statute reflects different carve-outs from different eras that each reflected technologies of its era, all of which now are now barnacles on the hull of the statute that exist decades later when the technologies are very different.

A month ago, thoughts about changing norms of secured versus unsecured communications might be a great subject for debate and discussion. Today, it seems quaint and trivial.

The laws enacted by Congress to cover what we, whether individually or as a government of the People, desire to remain of our private world reflect at best archaic tweaks years, even decades, behind what technology is capable of doing.  And still we argue about how to apply these laws to concepts that didn't exist, and weren't even imagined, at the time our elected officials, few of whom knew how to turn a computer on by themselves, crafted laws that were to control us.

The courts might have saved us from them, from ourselves, but the rigid love of precedence made judges incapable of seeing the forest through the exceptions.  As long as someone could develop an analogy that struck quasi-clueless judges as close enough to rule, the beloved doctrine of judicial modesty precluded the courts from taking bold action to safeguard the fundamental rights that no longer fit neatly into their paradigm.

For years now, some people (and I am among them) have argued that technology has so fundamentally altered the nature of communication and information privacy that it demands a new paradigm; it cannot be subject to protection by analogy from the bootlegger days, safes, file cabinets, old wine and new bottles, whatever cute rhetoric gets thrown about to make old men think they know how to decide an issue.

At stake was our core privacy. We knew, did we not, that in order to enjoy and appreciate the great glory and convenience the digital word brought, first to our door and now to our pocket, we were putting our entire lives in the hand of the technology gods?  We know that our world existed on somebody else's server, free for the taking by anyone with the right password, backdoor key or paper demanding compliance.  We knew all this.

And yet we gave it all up freely, happily, to enjoy the newest shiny thing.

But somewhere in the back of our fuzzy heads, we believed that our privacy would remain intact, or at least somewhat intact, because we wanted to believe that our government realized that the American people wanted them to keep their nose our of our affairs. While Katz said our "reasonable expectation of privacy" was the line in the sand, technology made any expectation of privacy unreasonable.

It should by now be clear to every American capable of thought beyond that of a brick that the old model of law, the interpretation of our constitutional right to be free from governmental intrusion into our personal lives that confronts the laws of physics, no longer suffice. Unless this changes, there can be no privacy.

Our reasonable expectation of privacy can no longer be defined by the limits of technology.  Rather, we must take a stand despite what technology can do, and what the government, corporations, individuals, can do with it, and decide there are places in our lives, our worlds, where we will not let anyone go. Not because they lack the ability to go there, but because it's beyond what we, as a People, are willing to accept.

The time has come for a new rule, one that protects our Unreasonable Expectation of Privacy, because without it, we have no privacy at all.

Or we can debate whether Snowden is a hero or traitor, whether chocolate tastes better than vanilla. whether videos on your website will get your more DUI cases than search engine optimization.  It's always easier to ponder small thoughts. They don't make your head hurt as much.

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