Sua Sponte: A Judge Comments

Vol. 40 No. 3

The author is a retired San Diego Superior Court judge who now serves as a mediator and arbitrator in California.

Circa 2008 Trial Judges’ Meeting First Agenda Item: Anonymity

Discussion: “What the heck is Spokeo?” Amid the gasps and OMGs as the horrors of Spokeo were revealed came the voice of one judge: “Hey, privacy is dead. Get over it and let’s move to the next agenda item before my calendar starts.”

In addition to the foreboding sense of loss of personal anonymity as I knew it, the niggling concern about privacy as a greater world concept kept pushing my consciousness, only to be ignored as I eagerly awaited the dramatic unveiling of each new generation of smartphone. I continue to be atwitter over the miracles each back-ordered device promises, and experience personal “aha!” moments when I can show a twentysomething a new function or app I’ve discovered. After a rough start to our relationship, I have declared Siri my new bestie (albeit privately until this publication).

News flash—a smartphone isn’t considered a luxury by most folks in this world anymore; it’s an official necessity. And as long as the newest tech luxuries morph into must-haves as soon as they roll out, our society will continue to sell its private soul for the thrill of the next-generation smartphone. Throughout this tech roller-coaster ride, stories of the marvels of what our phones can do have inspired more gasps and wows than have essays, discussions, and debates about the loss of our historic and hard-won judicially and legislatively sanctioned privacy rights.

Ms. Mikulka and Ms. Brooks have stepped away from that bus that splatters us with fascination of what our phones can do and urge that “we” participate and possibly direct lawmakers and courts to define our privacy rights in a way that accurately reflects how technology has upended earlier analyses. The “we” those authors speak of must include legal scholars and practitioners, technology innovators, ethicists, social scientists, those in the business of monetizing information, and representatives from all generations. Our older generations are said to have a different perspective on privacy than our younger adult generations. We need to write and speak together about our social expectation of privacy and to what extent privacy, as an end, is a value. We need to keep the migraine-producing concepts of privacy and limitations on using this boundless trove of information at the forefront. The collective ostrich attitude toward privacy is reflected in a recent survey (commissioned by software firm ESET of 2,000 people, conducted by polling firm Harris Interactive) in which 51 percent admitted not reading the privacy policies for their social media accounts. The 49 percent who are reading their privacy policies may as well give up as the providers constantly change the policies, generally resulting in the erosion of users’ privacy. (Do you know where your Facebook account went when you canceled it last spring? It’s still lurking out there.) “We” need to advocate and dialogue about true transparency in what consumers are relinquishing with a keystroke on the “I accept” button.

A simple Googling (surely that is a generic word) of “cell phone surveillance” finds articles that shame parents as irresponsible if they don’t download a spy app to track their kids. Although a website promising to do your stalking for you advises that using its app is illegal under federal and state laws, it promises to keep the purchaser’s identity a secret. The mantra of “build it and they will come” has become an axiom. The seduction of personal gadget technology has evolved and been embraced with little apparent reflection on privacy.

I take license and write between the lines of Ms. Mikulka and Ms. Brooks’s article to emphasize that we need to figure out what we want privacy to look like. We need to not take it anymore: we should out vendors who muddle our privacy concerns, and stop being blinded by the wows of technology long enough to reflect on the intricacies of privacy.

Don’t wait passively for either the courts or the legislature to figure it out. You might draw that trial judge who may conclude, based on the preponderance of the evidence, that privacy is dead and get over it. Follow the suggestions of Ms. Mikulka and Ms. Brooks to debate, discuss, and define privacy rights under our new world order. You may hear that trial judge say “thanks for giving me something to work with.”

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