Tuesday, November 13, 2007

Redefine Privacy?

It is amazing that people like this are referred to as intelligence officials. This is not the way I would initiate a discussion on privacy, but leave it to a government official to fall short of my expectations (I've compiled the quotes from the above link):

"Those two generations younger than we are have a very different idea of what is essential privacy, what they would wish to protect about their lives and affairs. And so, it's not for us to inflict one size fits all...

Protecting anonymity isn't a fight that can be won. Anyone that's typed in their name on Google understands that...

Our job now is to engage in a productive debate, which focuses on privacy as a component of appropriate levels of security and public safety...

I think all of us have to really take stock of what we already are willing to give up, in terms of anonymity, but (also) what safeguards we want in place to be sure that giving that doesn't empty our bank account or do something equally bad elsewhere."

If I order a PC from Dell, I am not doing so anonymously, and, by entering into the transaction, I consent to having certain information provided as part of the transaction, including information that I do not want shared with anyone else. I expect Dell to take all reasonable measures to protect my personal information based on whatever terms and conditions we mutually agree to (i.e. - using zip codes for "marketing purposes"). Although imperfect, the free market has done a good job of addressing information sharing and how that information is to be protected. As incentives exist, people (entrepreneurs) step in to provide solutions. We're already 20 steps ahead of Donald Kerr.

Furthermore, if we really need to redefine our "reasonable" expecation of privacy, we should at least understand what constitutes a reasonable expectation of privacy. For me, it is clearly summarized as the opening paragraph of Justice Harlan's concurring opinion in the landmark Katz v United States (1967):

(a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383, and unlike a field, Hester v. United States, 265 U.S. 57, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic, as well as physical, intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment, [p361] and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.

Therefore, if 1) the Fourth Amendment protects persons from unreasonable searches, such as monitoring electronic communications originated from a private place (such as a home) without a search warrant, and 2) exceptions to the warrant rule have, to my knowledge, never applied to a search within a home (hot pursuit notwithstanding), then how is one to "expect less privacy" without accepting the notion of increasing instances of warrantless searches if not the elimination of the warrant requirement from the definition of reasonable (per Katz, and recently reaffirmed, albeit indirectly, in Kyllo v United States (2001))?**

This would require such a profound shift in constitutional doctrine that I think the only way to appropriately address this is via an amendment.

Adding fuel to the fire, as others have mentioned (here and here), the administration has been, nicely put, less than noble in respecting the rule of law or using surveillance outside of what most reasonable observers may think as appropriate. The very people who want to have a conversation with us to suggest we "refine" our view of privacy are the same ones who have acted in such a way that makes it very difficult to trust them.

I have no problem with people like Donald Kerr wanting to have a sort of rhetorical sit-down to discuss what he thinks we need and why should refine our expectations of privacy. I will always listen. However, I will not hesitate to remind him (and other likeminded individuals) that there is a right way and a wrong way to go about doing things.

Hat tips - KipEsquire, Dispatches from the Culture Wars

** As a clarifying footnote, in Kyllo, the question before the court was whether or not the use of a thermal imaging decision to detect heat signatures consistent with the cultivation of marijuana was considered a search in the constitutional sense. Because it was considered a search and the police did not secure a search warrant, the search was considered unreasonable.

1 comment:

Tony said...

"Those two generations younger than we are have a very different idea of what is essential privacy, what they would wish to protect about their lives and affairs. And so, it's not for us to inflict one size fits all...

Kerr's nonsense there scares me more than anything else he said. Who cares what an entire generation, as a collective, allegedly believes? Privacy is an individual right, not subject to majority rule. If one member of those two generations believes in at least continuing the same level of privacy expectations, any talk of just assuming that the definition has changed is reckless.