Privacy in a Cyber Age

Policy and Practice

Amitai Etzioni, Kenneth A. Loparo

• Publisher: Palgrave Macmillan
• Year: 2015
• ISBN:
  9781137513960
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

This book lays out the foundation of a privacy doctrine suitable to the cyber age. It limits the volume, sensitivity, and secondary analysis that can be carried out. In studying these matters, the book examines the privacy issues raised by the NSA, publication of state secrets, and DNA usage.

1

A Cyber Age Privacy Doctrine

A. Introduction

1. Focus on Use

A privacy doctrine built for the cyber age must address a radical change in the type and scale of violations that the nation—and the world—face, namely that the greatest threats to privacy come not at the point that personal information is collected, but rather from the secondary uses of such information. Court cases such as Katz, Berger, Smith, Karo, Knotts, Kyllo—and most recently Jones—concern whether the initial collection of information was legal. They do not address the fact that legally obtained personal information may nevertheless be used later to violate privacy and that the ways such information is stored, combined with other pieces of information (“collated”), analyzed, and distributed often entail very significant violations of privacy.¹ Whereas a considerable number of laws and court cases cover these secondary usages of information, they do not come together as a coherent doctrine of privacy—and most assuredly they do not address the unique challenges of the cyber age.²

True, collected personal information was subject to secondary abuses even when it was largely paperbound (e.g., in police blotters or FBI files). Indeed, when Warren and Brandeis published their groundbreaking 1890 article in the Harvard Law Review, considered the “genesis of the right of privacy,”³ they were not concerned about gossip per se (a first order privacy violation), but about the wider distribution of intimate details through the media (a secondary usage).⁴ However, the digitization of information, the widespread use of the Internet and computers, and the introduction of artificial intelligence systems to analyze vast amounts of data have increased the extent, volume, scope, and kinds of secondary usages by so many orders of magnitude that it is difficult to find a proper expression to capture the importance of this transformation.⁵ The main point is not that information can now be processed at a tiny fraction of the cost and at incomparably faster speeds than when it was paper bound, which is certainly the case, but that modes of analysis that divine new personal information out of personal data previously collected are common today, but were inconceivable when most personal information was paper bound.⁶ In other words, preventing excessive intrusiveness required less recourse to the Fourth Amendment when most personal information was paper bound because very often it was simply impossible to accrue and analyze large amounts of personal information—but much expanded protections are necessary now that these abilities have much increased. Because this observation is critical to all that follows, and because the term “secondary usages” (which implies usages less important than the first or primary ones) is a rather weak one, I employ from here on the infelicitous term “cybernation” to refer to the process of storing information, combining it with other pieces of information (“collating”), analyzing it, and distributing it. Cybernated data can be employed in two distinct ways, and both represent a serious and growing threat to privacy. A discrete piece of personal information, collected at one point in time (“spot” information) may be used for some purpose other than that for which it was originally approved, or the fruits of spot collection may be pieced together with other data to generate new information about the person’s most inner and intimate life. (For a more complete definition of spot collection, see Chapter 2.)

The cyber age privacy doctrine must lay down the foundations on which the U.S. Congress can develop laws and the courts can accumulate cases that will determine not just what information the government may legally collect, but what it might do with that data. According to some legal scholars, the D.C. Circuit’s decision in Maynard and the concurring opinion authored by Justice Samuel Alito in Jones provide the building blocks for this new edifice, which is sometimes referred to as a mosaic theory of the Fourth Amendment, and under which “individual actions of law enforcement that are not searches for Fourth Amendment purposes may become searches when taken together en masse.”⁷ This observation is based on Justice Alito’s argument that the GPS tracking of a vehicle on a public highway constituted a search because of the length of time over which the monitoring took place (i.e., 28 days). This opens the door to take into account the volume of information collected and presumes that, while limited amounts of collection may be permissible, large amounts could constitute a violation of privacy. Jones, however, still only deals with collection. Hence, most of the work of laying down the foundations for the protection of privacy from cybernated information remains to be carried out.

2. But Not Back to the “Castle”

While the time has come to leave behind the reasonable expectation standard, this is not to say that the courts should revert to pre-Katz Fourth Amendment analysis, which gave considerable weight to the home as the locus of privacy. (For more on this subject, see Chapter 4.) In Katz the majority ruled that “the Fourth Amendment protects people, not places,” rejecting the “trespass” doctrine enunciated in Olmstead. However, even after this, the home remained largely inviolable in the eyes of the courts. It seems Katz did not detach Fourth Amendment safeguards from the home but rather extended the sphere of privacy beyond it to other protected spaces. Information collected about events in one’s home is still often considered a priori a violation of privacy, while much more license is granted to the state when it collects information about conduct in public and commercial spaces. As Justice Antonin Scalia put it, drawing heavily on Silverman v. United States, “‘At the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.”⁸ This idea has deep roots in American and English common law: “The zealous and frequent repetition of the adage that a ‘man’s house is his castle,’ made it abundantly clear that both in England and the Colonies ‘the freedom of one’s house’ was one of the most vital elements of English liberty.”⁹ In Dow Chemical Company v. United States, the court established that the expectation of privacy was lower in an industrial plant than in a home because the latter “is fundamentally a sanctuary, where personal concepts of self and family are forged, where relationships are nurtured and where people normally feel free to express themselves in intimate ways.”¹⁰

The inviolability of the home and the private/public distinction in privacy law has been roundly criticized by feminist scholars. Catharine MacKinnon writes the problem with granting the home extra protection is that “while the private has been a refuge for some, it has been a hellhole for others, often at the same time.”¹¹ Linda McClain points out that freedom from state interference in the home “renders men unaccountable for what is done in private—rape, battery, and other exploitation.”¹²

There is good reason to assume that the private/public distinction is rapidly declining in importance in general¹³ and with regard to privacy in particular.¹⁴ Marc Jonathon Blitz related this to the cyber age and hence is quoted here at some length:

The 1969 case Stanley v. Georgia forbade the government from restricting the books that an individual may read or the films he may watch “in the privacy of his own home.” Since that time, the Supreme Court has repeatedly emphasized that Stanley’s protection applies solely within the physical boundaries of the home: While obscene books or films are protected inside of the home, they are not protected en route to it—whether in a package sent by mail, in a suitcase one is carrying to one’s house, or in a stream of data obtained through the Internet.

However adequate this narrow reading of Stanley may have been in the four decades since the case was decided, it is ill-suited to the twenty-first century, where the in-home cultural life protected by the Court in Stanley inevitably spills over into, or connects with, electronic realms beyond it. Individuals increasingly watch films not, as the defendant in Stanley did, by bringing an eight millimeter film or other physical copy of the film into their house, but by streaming it through the Internet. Especially as eReaders, such as the Kindle, and tablets, such as the iPad, proliferate, individuals read books by downloading digital copies of them. They store their own artistic and written work not in a desk drawer or in a safe, but in the “cloud” of data storage offered to them on far-away servers.

Therefore, it follows that privacy is best viewed as a personal sphere that surrounds an individual irrespective of location. This is a version of what Christopher Slobogin calls the protection-of-personhood version of privacy, which “views the right to privacy as a means of ensuring individuals are free to define themselves.”¹⁵ Privacy plays the same role whether one is in the home or out in public: “Because a substantial part of our personality is developed in public venues, through rituals of our daily lives that occur outside the home and outside the family, cameras that stultify public conduct can stifle personality development.”¹⁶ If the government uses a long distance “shotgun mic” to eavesdrop on the conversation of two people walking in a public park, such a search would be more intrusive than if the government were to measure the temperature of their kitchens. This is the case because conversations are much more revealing about an individual than his or her preferred temperature, because the former can include their medical condition, political views, and so on. (I discuss later the question of whether information revealing that one is committing a crime deserves extra protection.) In short, privacy should not be home bound. (For a more thorough discussion of this point, see Chapter 4.)

3. A “Social Policy” Model of the Fourth Amendment

The cyber age privacy doctrine concerns the normative principles that underlie both the evolving interpretations of the Constitution and the laws enacted by Congress, both of which reflect changes in the moral culture of the society. It therefore deals with both the Fourth Amendment and public policy. Such normative changes have occurred in other areas. For instance, the civil rights movement led to changes in the position of the Supreme Court (e.g., from Plessy v. Ferguson to Brown v. Board of Education) and to acts of Congress (e.g., the Voting Rights Act of 1965). More recently, changes were introduced both by the courts and by various legislatures reflecting changes in the characterization of same sex marriage in the moral culture. Now such a change is called for in regard to the concept of privacy. This chapter next discusses the normative principles of such a reconstituted concept. (For a philosophical discussion of these normative principles, see Chapter 7.)

(i) In seeking to base a privacy doctrine not on the usual foundations of expectations or location, this chapter draws on a liberal communitarian philosophy that assumes that individual rights, such as the right to privacy, must be balanced with concerns for the common good, such as those about public health and national security. By contrast, authoritarian and East Asian communitarians tend to be exclusively concerned with the common good or pay mind to rights only to the extent that they serve the rulers’ aims. And at the opposite end of the spectrum, libertarians and several contemporary liberals privilege individual rights and autonomy over societal formulations of the common good. (Although the term “common good” is not one often found in legal literature, its referent is rather close to what is meant by “public interest,” which courts frequently recognize, and a similar concept is found in the U.S. Constitution’s reference to the quest for a “more perfect union.”)

The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (emphasis added). This is a prime example of a liberal communitarian text because it does not employ the absolute, rights-focused language of many amendments (e.g., “Congress shall make no law”), but recognizes on the face of it that there are reasonable searches, which...