Did the Supreme Court secure our right of privacy in its recent ruling?
If you think so, think again. They are years behind the times.
January 27, 2012
Those who are students of the law (a.k.a legal scholars—as opposed to practitioners) know full well that the law lags behind society and culture. That is not to say such is a bad thing. But what teachers of the law try to instill in their students is that to really understanding the meaning of a major legal ruling, such as we saw last week on the Fourth Amendment, you have to look at what the court said, what the facts and circumstances were and the trail of precedents leading up to and relied upon by the court in rendering the decision. That's the easy part. But there is another facet of understanding the law that many, even very competent practitioners, do not usually give adequate consider of. And that is what the future is likely to hold.
After all, as someone once said, the job of a lawyer is to guess how a court will rule if a case is tried and ultimately appealed. So a good student of the law looks at the decision, the past and projects what the law is likely to evolve into in the future.
Scholars who specialize in Fourth Amendment law (search and seizure) are faced with a immense task in applying that concept today. The reason is that technology is evolving so fast that many of the issues future cases will turn on have not even been invented. We see this in the case of U. S. vs Jones.
In that case the issue was whether police using a GPS unit they surreptitiously attached to a defendant's care requires a search warrant, and thus probable cause to believe that the particular defendant has or is committing a crime. Not that he is capable of, but that the probably is involved in criminal activity. The Supreme Court ruled that the use of the GPS tracker for several days was a violation of the person's reasonable expectation of privacy.
The if you read the decision carefully, particularly the concurring opinions, you decipher that the court struggled with how to factor into the consideration the technical capabilities of the method used by police.
But as a subsequent article in Scientific American points out it has become virtually impossible for an innocent citizen to go to the grocery store without being monitored these days. The advances in technology are such that it is not hard to imagine that within a relatively brief period of time that the devices will be so sophisticated and ubiquitous that actually going into a person's "effects" such as the underside of their car. We saw another example last week when it was reported that the New York Police Department is testing a scanner that would allow a police car cruise the street and scan pedestrians for concealed weapons. Of course the same could be used to scan people attend a public event like a football game. There are already laser enabled recording devices that allow authorities to listen to what is being said inside a building while sitting across the street. We have also heard recently that some police departments and law enforcement agencies are using or considering the use of drones to surveil potential criminal activity. We even have electric meters these days that track when we are home or away, and conceivably can imply what we are doing inside our homes. Some suggest that it is only a minor technological step to those meters monitoring smart appliances that send much more information than the number of kilowatt hours we use and when. Imagine what your TV would tell about what goes on in your house…or bedroom. And on and on it goes.
There is little doubt that the courts will be called upon to weight the ability of the technology to acquire information on citizens, many of whom will be innocent of having committed a crime.
How the standards of "reasonable expectation of privacy" will evolve will be interesting to watch.
But there was yet another story that alarms some of us who value our privacy. We learned this week that Google is going to begin collecting data on its user from across various applications and platforms. We'll spare the technical explanation but what is scary is that Google's action appears to be the embryonic stages of using multiple networks to assemble massive profiles on millions of citizens who thought all they were doing was searching for a website to buy a pair of shoes. But it is conceivable that the day will come that a policeman will knock on your door and put you in handcuffs because they discovered that a pair of shoes like the ones you ordered through a Google search made footprint at a crime scene and your Facebook account listed the victim of the crime as one of your friends and you posted some bad words about the person on another blog and that you had recently visited websites that were spiteful against the religious background of the victim, and you take the same kind of prescription medication that the victim of the crime took, some of which was missing from the crime scene and you have an excess amount when pharmacy records were compared….you get the point. The day is coming, we predict, when people will be charged with a crime primarily on the basis of data collected from multiple networks and patch together to build a profile that suggest, circumstantially, that you are a criminal.
Then as a law enforcement friend of ours has often said, "I can find some criminal activity on anybody if you give me enough information on that person."
And none of this even approaches the greatest risk from the Brave New World…that this information which was collected ostensibly to allow Google to flash certain ads on your computer, falls into the wrong hands and somebody assumes your identity with it.
And we have only scratched the surface. Because we've not even considered the National Defense Authorization Act.