For centuries, scholars in multiple fields of study, such as criminal justice, sociology, psychology, political science, humanities, history, anthropology, and the like, have struggled to define the concept of privacy. Although a concrete definition is still elusive, it is widely believed that privacy, for most, can be equated to seclusion from the interference of others regarding intimate aspects of daily life. Privacy allows individuals the opportunity for creativity and psychological wellbeing. It is the mainstay of individuality, engendering personal autonomy, offering an environment in which to engage in self-evaluation, share confidences and intimacies, and engage in protected communication (Wacks, 2010).
In the landmark case of Katz v. United States, 389 U.S. 347, 352 (1967), the Supreme Court stipulated that people have a constitutional right against unreasonable government intrusion under the Fourth Amendment search and seizure clause. The court further stated that electronic surveillance without probable cause is a violation of that right. In the Katz opinion, one Supreme Court Justice stated, “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures” (Katz, 1967). In a post 9/11 world the term unreasonable as applied to government searches has become more and more subjective, as both the United States government and private entities collect, store, and compile data on almost every facet of citizens’ daily life, often without consent or knowledge, in the name of national security.
Reasonable Expectation of Privacy
The framers of the Constitution developed the Fourth Amendment to protect citizens from frivolous intrusions into private homes by government agents and entities without due process of law. Originally connected to property rights and physical trespass, the perception of privacy as a fundamental right was largely unquestioned and the Fourth Amendment was a safeguard against government abuses by regulating the terms under which the state could interfere with a person’s property, business dealings, political freedom, and other aspects of private life (Lvovsky, 2018).
In the case of Olmstead v United States 277 U.S 438, 1928, Justice Brandeis declared that the Constitution conferred ‘as against the Government, the right to be let alone’, adding, ‘To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment’ (Kasper, 2005, p. 70). Throughout his career, Brandies was known for his commitment to the ongoing “re-molding” of individual rights, insisting that the Constitution, as it regarded privacy protection, be reinterpreted to extend beyond the physical frontiers of body and property (Kasper, 2005, p. 70).
Although privacy concerns were addressed by the courts long before Katz, it was that case that enumerated unreasonable searches as offenses against the privacy of the person rather than the place. Disregarding earlier interpretations that a search required property trespass, the Supreme Court held that “the Fourth Amendment protects people, not places,” and thus may extend to information that a person “seeks to preserve as private, even in an area accessible to the public” (Lvovsky, 2018, p. 2015). From the majority opinion, a test was derived which asked first if the person exhibited an actual expectation of privacy by seeking to preserve something as private and, second, if that expectation was recognized by society as reasonable. As the Court insists, the language of the Fourth Amendment protects a person’s “effects whether they are ‘personal’ or ‘impersonal.’ . . . A diary and a dishpan are equally protected” (Lvovsky, 2018, p. 2019). However, in practice, it appears quite different.
Trading Privacy for Protection
When security is under siege so, inevitably, is liberty; in times of national crisis citizens are often asked to trade liberty and privacy for security. It is understood as a democratic contractual provision that the government may do what is necessary to protect public safety and that in doing so those in power will not violate individual rights without just cause. However, as Supreme Court Justice Brandeis once observed, ”The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding” (Moore, 2010, p. 189).
In order to provide the countless services essential to modern society, government and private entities require a constant stream of data to be proficient and effective. The provision of health services, social security, credit, insurance, and the prevention and detection of crime assume a willingness by individuals to supply information (Wacks, 2010). However, because the digitalization of such sensitive information intensifies the risks of its misuse, it can be argued that government agencies are at least as dangerous to society as criminals or terrorists and perhaps even more so. As events throughout American history demonstrate, power is corruptive and if information control yields power, there is ample reason for concern given how much information the government has access to in the modern digital age.
Historic Abuses of Government Power
The 1950’s saw instances in governmental abuse of power with the passage of the Taft-Hartley Act and the McCarran Act, ushering in the era of McCarthyism. Between 1947 and 1954, largely unfounded accusations of communist activity caused chaos among Hollywood actors, directors, and political figures, sending some to jail and permanently ruining the careers of others. During a 1954 investigation of alleged communist activity within the army, McCarthy’s abuses were exposed, and his reign of mass hysteria was brought to an abrupt end. (Moore, 2010). From the late1950s through the early1970s government agencies engaged in numerous abusive operations against groups and individuals who were deemed to be enemies to the American way of life. A federal court later found that during the1960’s alone, the FBI and CIA conducted hundreds of break-ins resulting in the theft of personal documents as well as illegal wiretapping and bugging of property (Moore, 2010).
More recently, in response to 9/11, the USA Patriot Act made sweeping changes to existing surveillance methods and introduced a panoply of new ones. The Patriot Act essentially allows the government to conduct secret searches, as well as obtain mountains of personal data without warrants or probable cause, and escape review by a federal court (Moore, 2010). The National Security Agency was initially created to collect and analyze foreign intelligence information. However, after 9/11, the Bush Administration authorized NSA to monitor other activities, including email and telephone exchanges, of any citizen or non-citizen within the United States believed to have any connection with a suspected terrorist or terrorist group. In reality, the NSA collected vast amounts of data well beyond the scope of what they had ostensibly authorized to do until their activities became public knowledge in 2013 through the efforts of former NSA employee, Edward Snowden.
Data-protection legislation in many jurisdictions around the world has been enacted to prevent abuses in the collection, storage, and dissemination of personal data. Included in these protection measures are use limitation and purpose specification principles which require that personal data may be used or disclosed only for the purposes for which it was collected or for some directly related purposes, unless the data subject knowingly consents. Personal data must be collected by means that are fair and lawful, providing a safeguard against the misuse of such data and curtailing the invasion of privacy involved in general or specific surveillance. These basic principles essential to regulating the use of personal data are conspicuously lacking in the United States (Wacks, 2010, p. 114).
In today’s digitally enhanced society, the most insidious – and therefore the most concerning – invasions of privacy generally take the form of observation, which can be further divided into the categories of communication observation and behavioral observation. The first involves interception or surveillance of communication by telephones, mobile phones, e-mail, fax, snail mail, and face to face conversations. Behavioral observation is somewhat more difficult to identify because this type of invasion takes place as the explicit monitoring of a behavior rather than the surveillance of a specific physical entity or communicative activity (Kasper, 2005).
When discussing issues of data collection, the level of transparency and informed consent are important as they effect the degree to which individuals may object to or take action to avoid invasions to personal and informational privacy, however, consent is especially difficult to determine. In general, individuals are largely unaware of the observation and therefore do not give informed consent to being watched. Rather, in most cases, consent is implied. For example, department store customers, are usually at least minimally aware that a camera records activity within the store. Although no explicit consent is given, the shopper’s continued patronage gives what is known as implied consent (Kasper, 2005).
On the other hand, an individual may voluntarily provide limited information despite privacy concerns because there is no viable alternative. As an example, to obtain a library card, a patron must provide a social security number and other personal information. Computer companies have been known to offer free equipment and software to schools in exchange for the ability to track the behaviors of student users. To open a checking account, customers are required to provide personal information such as telephone numbers, postal mailing address, e-mail address, social security numbers, and other forms of identification. What the average consumer most likely does not know, and therefore do not actively consent to, is that banks are required to monitor the activities of account holders for suspicious behavior (Kasper, 2005).
Despite the public outrage against companies such as Verizon, AT&T, Google, Facebook, Yahoo, and many others reported to have shared or sold metadata to the NSA and other organizations, the average person today has less privacy than ever. Whenever a person uses the internet, makes a call, sends a text, uses GPS, makes a credit or debit card purchase, watches a television program, or travels by plane, train, automobile, or bus, that activity is recorded. When a person drives their own vehicle on a highway Radio Frequency Identification readers positioned along the road record the unique number of a Radio Frequency Identification chip embedded in a vehicles tires, which can then be traced to the person who purchased the tires (Eyre, 2011).
Organizations, such as chain retailers who offer reward cards, recording transactions and location data include significant amounts of ancillary information including the individual’s phone number, email address, and postal address because marketing companies use the demographic data for building dossiers. Data fusion, which involves matching sets of data based on common elements, is the key to linking databases together to make accessible the maximum amount of data regarding each individual being tracked. The additional data attached to those common elements are then added to the dossier which can be purchased or traded with other companies including those owned or operated by the government (Eyre, 2011). In many ways, modern technology and how it is used comes uncomfortably close to author George Orwell’s fictitious claim that Big Brother is constantly watching.
Some would say that the cost for security is not too high precisely because of the advances in technology which allow information to be gathered in unobtrusive ways. Video surveillance in public spaces, global positioning systems in cell phones and automobiles, and various bio-metric technologies, as well as data surveillance, allow law enforcement officials and other government agencies to provide public safety without disrupting the day to day activities of individuals. Many would argue that trading a little privacy for security is reasonable. However, arguing that one balances the other assumes that privacy and security are measurable commodities which can be traded, but to do so runs the risk of allowing massive violations of privacy in exchange for small gains in security (Moore, 2010).
Another popular argument supporting unhindered data collection is that those who are overly concerned with preserving privacy must have something to hide. Technology provides convenience and safety, to an extent, and the stockpiling of personal information is of no consequence to the average law-abiding citizen. However, this view is naïve at best. While much of the current controversy over privacy can be thought to stem from a distrust of seemingly malevolent advances in technology, it is not technology itself which cannot be trusted, but rather how it is used. As the manner in which information is collected, stored, exchanged, and used has changed forever, so has the character and immediacy of threats to individual privacy (Wacks, 2010). A society in which an individual’s every activity is observed erodes the very types of freedoms the Constitution was designed to uphold. A fundamental protection provided by the Constitution is due process of law, which is violated at the outset by secret forays into a person’s private life when there are no accountability provisions.
Some degree of autonomy is vital to human nature. Invasions of privacy are intrusions into an individual’s autonomy and self-governance which interfere with a person’s sense of comfort, stability, and well-being. Privacy can be equated to a necessary place or thing in which a person is entitled to explore and express their own thoughts, ideas, and individuality, and to have the freedom to make life choices or determine a course of action without oppressive outside influence. It is the protective buffer within which people can avoid another party’s taking something from them, keeping watch over them, or intruding into their lives in a way that is both unwelcome and undesirable (Kasper, 2005, p. 77).
While most people do not actually know whether or when they are being watched, the awareness that they could be at any given time can affect the quality of life, both practically and psychologically. Increasingly sophisticated technology continues to heighten the effects, adding an element of personal specificity to previously more banal public surveillance, such as with the use of facial recognition technology and collection of other biometric data. The effects of ongoing collection, stockpiling, and unauthorized dissemination of private data are long-term, cumulative, and potentially harmful to society. Besides opening doors to totalitarianism, surreptitious surveillance fosters an air of distrust and suspicion, undermining the respect for law and government (Wacks, 2010).
Citizens should only be comfortable exchanging privacy for security when there is a foundation of trust between the public and the governing body responsible for providing safety. It should be beyond question that the best interests of the population outweigh what minimal additional security can be gained, however, given the history of abuses by those in power that is clearly not the case.