At Concurring Opinions, Omer Tene, an internet privacy scholar who is hanging out at Stanford Law School for the time being, writes:

One of the most significant developments for privacy law over the past few years has been the rapid erosion of privacy in public. As recently as a decade ago, we benefitted from a fair degree of de facto privacy when walking the streets of a city or navigating a shopping mall. To be sure, we were in plain sight; someone could have seen and followed us; and we would certainly be noticed if we took off our clothes. After all, a public space was always less private than a home. Yet with the notable exception of celebrities, we would have generally benefitted from a fair degree of anonymity or obscurity. A great deal of effort, such as surveillance by a private investigator or team of FBI agents, was required to reverse that.

As should come as a surprise to no one, that’s gone.

Now, with mobile tracking devices always on in our pockets; with GPS enabled cars; surveillance cameras linked to facial recognition technologies; smart signage (billboards that target passersby based on their gender, age, or eventually identity); and devices with embedded RFID chips – privacy in public is becoming a remnant of the past.

Location tracking is already a powerful tool in the hands of both law enforcement and private businesses, offering a wide array of localized services from restaurant recommendations to traffic reports. Ambient social location apps, such as Glancee and Banjo, are increasingly popular, creating social contexts based on users’ location and enabling users to meet and interact.

What is curious about Tene’s perspective is that he’s Israeli, a nation-state that has been under threat of terrorist annihilation from the moment of its creation. Israeli’s knew how it feels to have a bus of children blown up decades before terrorism was part of the American lexicon. Yet privacy, the bane of order and control, remains a concern for him.

As he notes, we have willingly handed the government our every move on a silver platter, from our credit cards, internet usage and cellphone data.  Every drug dealer I’ve ever known, and I’ve known a few in my time, hooked a device to his belt as soon as he could, and that device may have made his work easier, but gave his nemesis an incredibly easy tool to out his crimes.  It rarely occurred to any of them that they were handing over their privacy with a beeper, a cellphone, a smartphone, as they spent little time reflecting on the nitty-gritty of how electronic devices worked. 

Nor do most of us.  And yet, the courts, for all their technological ignorance, know enough to make clear that the third party doctrine has undermined any reasonable belief in our privacy.  Tene raises the next level of intrusion, facial recognition.

Facial recognition is becoming more prevalent. This technology too can be used by law enforcement for surveillance or by businesses to analyze certain characteristics of their customers, such as their age, gender or mood (facial detection) or downright identify them (facial recognition). One such service, which was recently tested, allows individuals to check-in to a location on Facebook through facial scanning.

Essentially, our face is becoming equivalent to a cookie, the ubiquitous online tracking device. Yet unlike cookies, faces are difficult to erase. And while cellular phones could in theory be left at home, we very rarely travel without them. How will individuals react to a world in which all traces of privacy in public are lost?

It’s an excellent question, although no one seems to give it much thought until after they’re in trouble.   Dan Solove argued that the Katz reasonable expectation of privacy test has run its course, and it was time to abandon it in favor of a new doctrine that will protect privacy going forward.  Orin Kerr disagrees, arguing that we can cruise along using the same old rules that eliminated most privacy before the tech revolution, and adopt them to lose all privacy going forward.  Even  Supreme Court Justice Sonia Sotomayor wrote that it may be time to reconsider the third party doctrine.

Are we seriously reduced to walking around the mall in masks in order to hold on to the last semblance of privacy?  We are the willing victims of technology when it comes to the ability to know all there is about us, and with every new application comes a better way to either sell us something or own our soul.  We love the shiny convenience far more than we hate the intrusion. 

There is no going back to the farm now that we’ve seen digital images of Paree. But I don’t want to walk down the street looking like a masked wrestler (no comments about this, please).  And regardless of whether I have anything to hide, privacy still matters. I don’t begrudge anyone who feels compelled to put their status on Facebook, but my status is none of your business.

So while the opportunity to protect privacy via technology is long gone, there remains a question of whether the protections offered by law will adapt to our reasonable expectation of privacy, not because the government doesn’t have the tools to know everything there is about us, but because we want and expect our privacy to be protected from the government anyway.  It’s not that Katz is dead, but rather that it’s not controlled by the marvels of technology but by the limitations under which we expect our government to function, one of which is to respect of our privacy despite its ability not to.

Or we can just walk around in masks.  Because that won’t be uncomfortable or awkward.