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May 01, 2013


by Jeffrey Rosen

In a public interview in December 2012, Supreme Court Justice Elena Kagan said that Justice Louis Brandeis “understood how new technologies interfere with privacy, which I think will be one of the most important issues before the court in the decades to come.” It’s hard to disagree, given the significance of the privacy cases the Supreme Court is now considering. Consider the following examples:

U.S. v. Jones. The 9–0 decision in 2012 was arguably the most important privacy decision of the digital era. The Court unanimously rejected the Obama administration’s claim that we have no expectations of privacy in public and that the police can track our movements for a month, twenty-four hours a day, using a GPS tracking device. But the justices divided about why the Fourth Amendment prohibits ubiquitous surveillance. Justice Antonin Scalia, writing for five justices, focused on the fact that the police committed a physical trespass when they attached a GPS device to a suspect’s case without a valid warrant. But four other justices, led by Samuel Alito, noted that the police could have obtained geolocational information from a suspect without a physical trespass—simply by subpoenaing the records from his cell phone company, for example. Alito, therefore, focused on the volume of personal information that can be revealed by ubiquitous surveillance and insisted that we do have an expectation of privacy in the whole of our movements. Justice Sonia Sotomayor went further, suggesting that the Court should reconsider the “third party doctrine,” which holds that we lose our expectations of privacy in data surrendered to a third party. In an age when most of our “papers and effects,” to use the language of the Fourth Amendment, are stored in the digital cloud, this doctrine would mean we have less privacy in the twenty-first century than the Framers of the Fourth Amendment took for granted.

Maryland v. King. “This is perhaps the most important criminal procedure case that this Court has heard in decades,” Justice Alito said during the oral argument in the case, which will determine whether the government can seize DNA samples from people at the time they’re arrested. Suggesting the case could be even more important than U.S. v. Jones, Alito said: “This is what is at stake: lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy.” Other justices, however, recognized that the potential privacy invasions are far from minimal: In light of the enormous amount of personal information that can be gleaned from DNA, Justice Sotomayor noted that “there is something inherently dangerous about DNA collection that is not the same as fingerprinting.” After seizing DNA on arrest, for example, the government might choose to profile a suspect’s entire genome more broadly, looking for a predisposition to violence, for example, that could be used to deny people bail or even health insurance.

Florida v. Jardines and Florida v. Harris. Despite the many dog jokes at the oral arguments and in the briefs, the stakes in the two cases involving drug-sniffing dogs could hardly be higher: They involve nothing less than the question of how closely the Court is willing to scrutinize the invasiveness and effectiveness of privacy-invading tools designed to detect contraband—not only drug-sniffing dogs on front porches but also naked body scanners at airports and spectroscopes designed to detect drugs on the street. In the Harris case, the Court ruled unanimously that a dog’s training and general reliability, rather than a strict evaluation of its accuracy in the past, should determine whether an alert creates probable cause to search. The Jardines case will decide whether a dog sniff on your front porch, unlike a dog sniff in public places, requires a warrant. And the decision could have implications for digital searches that reveal nothing more than contraband (such as hash tag searches of computers for child pornography) but don’t require physical trespass into the home.

These are just a handful of the dizzying range of privacy cases the Court has considered recently. But, of course, the greatest privacy controversies today don’t just arise in court: They involve Facebook, Google, and Twitter—the Internet Service Providers that today have more power over the privacy of billions of people around the globe than any Supreme Court justice, president, or king. Because Facebook and Google aren’t formally constrained by the U.S. Constitution, the most significant privacy regulations of them are coming not from U.S. courts but from privacy regulators—not only in the United States but in Europe as well. The European Commission, for example, is considering codifying a sweeping new “Right to be Forgotten.” This right would allow individuals to demand the removal from the Internet of any data concerning them—including not only photos they have posted themselves but also truthful but embarrassing photos of them or comments about them made by others. Under the proposed regulation, Google and Facebook would have to remove the contested items, unless a European privacy regulator determines that they’re part of a legitimate journalistic, literary, or artistic exercise. If the Internet Service Providers fail to remove the data, they would be liable for up to 1 percent of their annual income—which in Google’s case is $37.9 billion. The financial incentives to avoid liability could transform Google and Facebook from neutral speech platforms to censors-in-chief for the entire globe.

In this special Privacy issue of Human Rights, a distinguished group of commenters explore these and other privacy issues that the world is confronting today. In the pages that follow, Heidi Boghosian explores the ways that multinational companies and governments around the world are using data mining and other technologies of mass surveillance to track citizens and consumers in order to send them ads and identify potential terrorists. Mitra Ebadolahi discusses the ways recent amendments to the Foreign Intelligence Surveillance Act have opened up to warrantless surveillance the routine international communications of Americans who e-mail or telephone clients, dissidents, witnesses, or advocates abroad. Lewis Maltby examines how recent changes in law and technology have eroded privacy in the workplace. Marc Rotenberg and David Brody argue that Congress has as much responsibility as the courts to protect privacy in the face of new technological threats. John Whitehead insists that strip searches are a basic threat to human dignity—a value he urges the courts to recognize as fundamental. And Alexander Wohl narrates the various ways that Hollywood has dramatized invasions of privacy over time.

These authors offer no single solution for how to protect privacy in an age of new technological threats. But all of them help us understand the magnitude and complexity of the challenges that face us. One thing is clear: Courts, legislators, presidents, and regulators can’t protect privacy on their own. All have a role to play, supported by the activism and concern of engaged citizens around the world.

Jeffrey Rosen

Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The New Republic. He is also co-editor of the book Constitution 3.0: Freedom and Technological Change.