Evolving Technology and Privacy Law: Can the Fourth Amendment Catch Up?

Vol. 8 No. 4

Samuel Mark Borowski, a lawyer in Washington, DC, practicing in the areas of intellectual property and public contract law, occasionally writes on issues related to law and technology. Aaron Midler is a Chicago lawyer with an interest in privacy law and is a recent graduate of Chicago-Kent College of Law. Pervin Taleyarkhan is a law student at the Indiana University Robert H. McKinney School of Law.  All are members of the Artificial Intelligence & Robotics subcommittee in the ABA’s Section of Science & Technology Law.

“Technology is changing people’s expectations of privacy.” Such was the insightful pronouncement from the bench in a recent oral argument where social media was undoubtedly on one justice’s mind.1 And why shouldn’t it be? Technology and the law have always had a give-and-take relationship in the privacy realm, with technology rising to the detriment of privacy before the law balances anew. In recent decades, this trend has been most evident in the rise of electronic communications technologies, and the emergence of social media only marks the opening of a new frontier.

Social media has by and large revolutionized how we interact with the world. Using one’s smartphone and a social media site like Facebook or Google+, one can email (or conduct a live chat with) distant friends; reach out and make new ones; and share one’s day-to-day experiences with them all, or even with the world. Whether we are sharing pictures of our latest excursion, or the details of the excursion itself, social media has enabled us to live our lives in a world where geographical separation is no longer an impediment to communication.

But even as social media has allowed us to expand our networks and to share our lives in remarkable ways, what effect does its debut have on our privacy? Some would say it has eviscerated it, in part because what one shares openly with the world no longer can be reasonably considered private. That much seems true, but it could also be that our conceptions of privacy are evolving in ways that have outpaced the law. When looking at what’s happening in the realm of electronic communications, this conclusion seems more likely. Simply put, the law has failed to keep pace.

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