Attorneys, and especially litigators, are uniquely vulnerable to the shock that arises when the future hits the present. Consider the one constant in any litigation: citations to precedent. Precedent looks backward, trying to connect the present circumstances to past rulings. But by definition, innovation is made of things that haven’t happened yet. While it may be easier for attorneys to remain within the comfortable boundaries of precedent, it is vital to recognize that at some point empirical reality diverges from history and becomes something qualitatively new. This is especially true in cases that involve technology: Cars are more than fast horses, atomic bombs are more than really big cannons, and computational cryptography is more than a room full of mathematicians. And privacy in the modern world is inextricable from its technological underpinnings.
In a very real sense, privacy may go down in history as one of the great casualties of our unceasing march into the future. Maybe this is just societal growing pains: Privacy is an odd, hybrid thing cobbled together out of some combination of norms, laws, and technology. It varies from place to place, and it changes over time, and perhaps the reason that the privacy of today looks so different from the privacy of a half-century ago is because the world has changed so much in that period of time.
But maybe not. Maybe something else is going on, something that is both much simpler and much more troubling. Within the past couple of decades, we have seen a series of advancements that have fundamentally altered the way in which individuals interact with each other, with businesses, and with their governments. Whatever other effects these changes may have produced, they have inflicted great violence on our conception of privacy, wearing it down and weakening it. And throughout this period of great and tumultuous change, the legal community as a whole (with a few notable exceptions) has clung to its old, well-loved analytical tools and methods of understanding. The net result? In many circumstances, we are left with laws that are internally consistent and possessed of historical inertia but poorly suited to the world in which we now live.
It is far beyond the scope of this article to spin out a complete scientific and legal history that surrounds these innovations, with all the complicated dynamics that arise when innovation collides with an unready society. Similarly, it would be the work of an entire textbook to list all the laws that have ended up on the wrong side of history because they didn’t properly anticipate the future.
Instead, let’s consider three short stories about the effect modern technology has had on privacy, each showing how a relatively small, understandable set of technologies came together in ways that the law failed to foresee or accommodate. As you read them, try not to focus on what went wrong. Rather, think about how little it would take to do better. The right decision at the right time can change everything. Privacy in the 21st century is far from a lost cause.
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