The Age of Privacy is NOT Over
In late 2009, then-CEO of Google Eric Schmidt was asked by CNBC about Google's policy regarding privacy. He responded with a somewhat alarming quote: "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place."
Whenever he's asked about it, Mark Zuckerberg seems to take the stance that the age of privacy is over in a world permeated by Internet connectivity.
That the heads of these companies don't seem to respect the privacy of their users is an interesting thing to note here...but it isn't the real story. The posture of these companies seems to be an attempt to remain objective in the face of the legal reality that privacy laws don't cover Internet activity they way they protect what you keep in your home. That they don't seem to be pushing to maintain the privacy rights of their users also makes for interesting discussions, but it's not the real story here, either.
The Fourth Amendment is one key piece of U.S. law that regulates how law enforcement agencies conduct investigations against citizens. It protects against "unreasonable searches and seizures" by government without warrants issued upon probable cause. This amendment was created in an age without much technology. Government investigated individuals by physically entering someone's home, so protecting against "searches" was sufficient.
In 1928, in the landmark case of Olmstead v. United States, federal investigators sought to convict a notorious bootlegger by tapping his phone lines, recording hundreds of hours of conversations, and incriminating him using those conversations. They got their conviction, but Olmstead appealed on the grounds that his phone conversations were recorded without a warrant, and therefore in violation of his Fourth Amendment rights. The Supreme Court disagreed with him, claiming that there was neither search nor seizure involved in the wiretapping.
This would be a dangerous precedent for the age of the Internet, but it didn't stop there. In 1967, the FBI sought to convict a man named Charlie Katz for violating federal gambling statutes. Katz made calls to his bookie in a phone booth outside his apartment. The FBI bugged the phone booth, and eventually, they accumulated enough evidence to arrest him.
Katz was convicted, and like Olmstead, he appealed. The Supreme Court heard the case , but this time, they reached a different conclusion than they had in Olmstead's case. Regarding the case, they said:
"The Fourth Amendment protects people, no places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
In essence, the Court now applies the "reasonable expectation of privacy test". If a person acts with a reasonable expectation that they're actions are private, they should be protected.
Let me repeat that last part, because you have dozed off in my tedious recounting of this history: if there's a reasonable expectation of privacy in a person's actions ("reasonable" being defined by society's expectations), those actions should be protected by the Fourth Amendment.
With that in mind, I'd like to quote the headline of the article I linked to above:
"Facebook's Zuckerberg Says The Age of Privacy is Over".
This headline, by itself, is creepy. Why is that? The more they erode the public expectation of Internet privacy, the more they erode the case to be made for privacy law to apply to the Internet.
Regardless of Facebook's privacy policies, the fact that this is the sentiment that Zuckerberg echoes almost every time he discusses privacy and Facebook is troublesome. I'm picking on him because he's easy and his name is well-known, but he's certainly not alone. It's a familiar story in Silicon Valley: that privacy is simply a thing of the past. We've entered a new technological age, in which the online privacy rights of citizens are deterministically going to vanish. There's nothing we can do about it, they claim, because the forward march of technology further and further into our lives is inevitable, so we might as well embrace it.
This is an easy thing to accept. And it's tempting to accept it, because if that's the case, we don't have to do much. But it's a dangerous mindset.
It makes sense that companies like Google and Facebook would want us to think we, as a society, have no reasonable expectation of privacy. Even ignoring the effect this might have on future legal precedents, it keep would keep us from demanding more control over the data and information that we're providing to them. It frames the issue in a way that suggests that any future harm that befalls an individual based on these companies irresponsibly sharing that person's data is the fault of that individual, and absolves the company itself of any responsibility.
The age of privacy is not over. As a matter of fact, it's more important now than it has ever been in the past. I'm not a lawyer, but I don't think you should let anyone tell you otherwise. Your right to privacy online might depend on it.
Whenever he's asked about it, Mark Zuckerberg seems to take the stance that the age of privacy is over in a world permeated by Internet connectivity.
That the heads of these companies don't seem to respect the privacy of their users is an interesting thing to note here...but it isn't the real story. The posture of these companies seems to be an attempt to remain objective in the face of the legal reality that privacy laws don't cover Internet activity they way they protect what you keep in your home. That they don't seem to be pushing to maintain the privacy rights of their users also makes for interesting discussions, but it's not the real story here, either.
The Fourth Amendment is one key piece of U.S. law that regulates how law enforcement agencies conduct investigations against citizens. It protects against "unreasonable searches and seizures" by government without warrants issued upon probable cause. This amendment was created in an age without much technology. Government investigated individuals by physically entering someone's home, so protecting against "searches" was sufficient.
In 1928, in the landmark case of Olmstead v. United States, federal investigators sought to convict a notorious bootlegger by tapping his phone lines, recording hundreds of hours of conversations, and incriminating him using those conversations. They got their conviction, but Olmstead appealed on the grounds that his phone conversations were recorded without a warrant, and therefore in violation of his Fourth Amendment rights. The Supreme Court disagreed with him, claiming that there was neither search nor seizure involved in the wiretapping.
This would be a dangerous precedent for the age of the Internet, but it didn't stop there. In 1967, the FBI sought to convict a man named Charlie Katz for violating federal gambling statutes. Katz made calls to his bookie in a phone booth outside his apartment. The FBI bugged the phone booth, and eventually, they accumulated enough evidence to arrest him.
Katz was convicted, and like Olmstead, he appealed. The Supreme Court heard the case , but this time, they reached a different conclusion than they had in Olmstead's case. Regarding the case, they said:
"The Fourth Amendment protects people, no places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
In essence, the Court now applies the "reasonable expectation of privacy test". If a person acts with a reasonable expectation that they're actions are private, they should be protected.
Let me repeat that last part, because you have dozed off in my tedious recounting of this history: if there's a reasonable expectation of privacy in a person's actions ("reasonable" being defined by society's expectations), those actions should be protected by the Fourth Amendment.
With that in mind, I'd like to quote the headline of the article I linked to above:
"Facebook's Zuckerberg Says The Age of Privacy is Over".
This headline, by itself, is creepy. Why is that? The more they erode the public expectation of Internet privacy, the more they erode the case to be made for privacy law to apply to the Internet.
Regardless of Facebook's privacy policies, the fact that this is the sentiment that Zuckerberg echoes almost every time he discusses privacy and Facebook is troublesome. I'm picking on him because he's easy and his name is well-known, but he's certainly not alone. It's a familiar story in Silicon Valley: that privacy is simply a thing of the past. We've entered a new technological age, in which the online privacy rights of citizens are deterministically going to vanish. There's nothing we can do about it, they claim, because the forward march of technology further and further into our lives is inevitable, so we might as well embrace it.
This is an easy thing to accept. And it's tempting to accept it, because if that's the case, we don't have to do much. But it's a dangerous mindset.
It makes sense that companies like Google and Facebook would want us to think we, as a society, have no reasonable expectation of privacy. Even ignoring the effect this might have on future legal precedents, it keep would keep us from demanding more control over the data and information that we're providing to them. It frames the issue in a way that suggests that any future harm that befalls an individual based on these companies irresponsibly sharing that person's data is the fault of that individual, and absolves the company itself of any responsibility.
The age of privacy is not over. As a matter of fact, it's more important now than it has ever been in the past. I'm not a lawyer, but I don't think you should let anyone tell you otherwise. Your right to privacy online might depend on it.