Following the disclosures of the NSA’s accumulation of every communication ever made by every person in the United States, debates rage over whether the leaker, Edward Snowdon, is hero or traitor, whether the government’s action was lawful or proper. Good and important arguments, but unavailing.
What is known, conclusively, is that technology allows this to happen and the law has not prevented it. The true distinction between the Orwellian world so many of us fear and the disclosure that we’ve been living in it for, well, at least a while now, is whether those branches of the government expected to adhere to the law, honor the Constitution, would do so if the judicial branch said so.
The problem is that the government, from Congress to the Supreme Court, have fallen so far behind the curve of technology that its reduced itself to a nullity in these debates. Exhibit A is this post by Orin Kerr at Volokh Conspiracy about a 9th Circuit decision that, had it come out a month ago, would have made for an interesting discussion.
A month ago, thoughts about changing norms of secured versus unsecured communications might be a great subject for debate and discussion. Today, it seems quaint and trivial.Can Anyone Intercept Unencrypted Wireless Communications?
Google argues that the answer is “yes,” in this oral argument today in the Ninth Circuit in Joffe v. Google. It’s an interesting question as a matter of statutory interpretation, largely because Congress wasn’t thinking about wireless Internet networks when it was writing about “radio communications.” The statute reflects different carve-outs from different eras that each reflected technologies of its era, all of which now are now barnacles on the hull of the statute that exist decades later when the technologies are very different.
The laws enacted by Congress to cover what we, whether individually or as a government of the People, desire to remain of our private world reflect at best archaic tweaks years, even decades, behind what technology is capable of doing. And still we argue about how to apply these laws to concepts that didn’t exist, and weren’t even imagined, at the time our elected officials, few of whom knew how to turn a computer on by themselves, crafted laws that were to control us.
The courts might have saved us from them, from ourselves, but the rigid love of precedence made judges incapable of seeing the forest through the exceptions. As long as someone could develop an analogy that struck quasi-clueless judges as close enough to rule, the beloved doctrine of judicial modesty precluded the courts from taking bold action to safeguard the fundamental rights that no longer fit neatly into their paradigm.
For years now, some people (and I am among them) have argued that technology has so fundamentally altered the nature of communication and information privacy that it demands a new paradigm; it cannot be subject to protection by analogy from the bootlegger days, safes, file cabinets, old wine and new bottles, whatever cute rhetoric gets thrown about to make old men think they know how to decide an issue.
At stake was our core privacy. We knew, did we not, that in order to enjoy and appreciate the great glory and convenience the digital word brought, first to our door and now to our pocket, we were putting our entire lives in the hand of the technology gods? We know that our world existed on somebody else’s server, free for the taking by anyone with the right password, backdoor key or paper demanding compliance. We knew all this.
And yet we gave it all up freely, happily, to enjoy the newest shiny thing.
But somewhere in the back of our fuzzy heads, we believed that our privacy would remain intact, or at least somewhat intact, because we wanted to believe that our government realized that the American people wanted them to keep their nose our of our affairs. While Katz said our “reasonable expectation of privacy” was the line in the sand, technology made any expectation of privacy unreasonable.
It should by now be clear to every American capable of thought beyond that of a brick that the old model of law, the interpretation of our constitutional right to be free from governmental intrusion into our personal lives that confronts the laws of physics, no longer suffice. Unless this changes, there can be no privacy.
Our reasonable expectation of privacy can no longer be defined by the limits of technology. Rather, we must take a stand despite what technology can do, and what the government, corporations, individuals, can do with it, and decide there are places in our lives, our worlds, where we will not let anyone go. Not because they lack the ability to go there, but because it’s beyond what we, as a People, are willing to accept.
The time has come for a new rule, one that protects our Unreasonable Expectation of Privacy, because without it, we have no privacy at all.
Or we can debate whether Snowden is a hero or traitor, whether chocolate tastes better than vanilla. whether videos on your website will get your more DUI cases than search engine optimization. It’s always easier to ponder small thoughts. They don’t make your head hurt as much.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Since we know cellphones involve signals sent through outer-space, and because no individual can expect privacy in outer-space, per Katz, we have no cellphone privacy expectation. That’s the basic common-sense DOJ argument.
Do you think a judge would initially have to rule on the actual waves/particles having properties before the judge can address where our privacy expectations to said waves/particles exist? I don’t know if we can ever get a privacy right out of that analysis. Do you have a suggestion how to update Katz or some language a judge can use to get us started on a path to determine privacy rights in the current technological environment?
I like your post and it’s right to say that current law is far too behind. But what words do we use to push privacy rights outward to include these subatomic particles we can manipulate with our current personal property’s technology?
As long as we think in terms of framing privacy based on the ability/inability of technology to access our every communication, we lose. Tech has beaten our ability to keep secrets. The only solution will be found in the determination to proclaim where the line of privacy exists, beyond which nobody goes regardless of whether they can or can’t.
And once that’s established, if the government goes beyond it anyway, we have our Orwellian answer.
Then I guess the use of encryption WOULD be a expectation of privacy.
Oh, and Scott:
The first sentence should read, “..every communication ever made..
Cheers.
Encryption is a false god. It still resides on someone’s server somewhere. It’s still encrypted using someone’s program somewhere. It’s still a matter of “trust” that we can beat technology. Whatever wall we throw up will be breeched, and the sooner we realize it, the sooner we can deal with it.
And even with the use of encryption, the vast majority of our information remains unencrypted. Are you happy to give that away?
But most importantly, why is it incumbent upon the people to encrypt to establish that we do not want the government intruding upon our privacy. If we don’t build brick walls around us, that means they can come in at will? That’s the point of law.
(and typo fixed. Thanks.)
At least encryption makes them work (a little) for it. Just like locking your door makes the burglar work (a little) for it.
Please note that I am in no way comparing government agents to burglars. I have far too much respect for burglars to diss them like that.
Definitely a hero. In the movie, he will be Jason Bourne. Why else did he take off for Hong Kong, a country with an extradition treaty with the USA? Because it is a great location for chase scenes. He has already disappeared again, only to appear in Beruit or Nepal.
As long as it has great visuals. That’s all one could ask for of a haven from
extrarendition.I have said for years that people have an expectation of privacy in many ways that might not be reasonable (according to a Court) but that has some validity. The Supreme Court has said that there is no privacy in a car, but people do all sorts of things in their cars that they hope to keep private and that they think should be private (despite the windows). Perhaps the standard needs to change to a right of privacy for everything (reasonable and unreasonable) unless otherwise specified by law. That’s more in our favor and harder for the government to get around (until they pass a law).
My argument was IF sending out info in an unencrypted format IS the justification for one NOT expected privacy, then it follows logically that encrypting such communications would or should be the opposite.
I’m not arguing whether or not we should do it, or whether or not they’ll break it anyway; that’s besides the point.
I’m also not arguing for the government, other than playing Devil’s advocate.
Personally, I don’t see any reason why we should even cooperate with this government anymore. This government has proven to be hostile to the American people, but Americans aren’t doing anything and haven’t done anything to stop it.
The real problem in America is not the NSA, Obama, or The War on Brown People. The real problem is the American people.
There is something called the third party doctrine. While the courts have held that sending unsecured info into the ether reflects the lack of an expectation of privacy, putting info into the hands of a third party is an exception to 4th Amendment. There are a lot of ways around privacy for the government under the law as it now exists. Addressing one without understanding how it fits with others isn’t particularly helpful, and serves to confuse issues and make people stupider. I try not to do that here.