Sunday, August 9, 2015

Musings on Privacy

I was reading a review in Slate of a newly found short story by F. Scott Fitzgerald this week. The short story, Temperature, is one of his end of life works. A passage from the review struck me in a way having nothing to do with Fitzgerald or his ever fascinating oeuvre of work.
The truth is that in [Fitzgerald's] day the short story was, like the movies, a popular entertainment. Published in magazines like Collier’s or the Saturday Evening Post, they helped people while away their weekday evenings before television was invented. 
It struck me if the short story form gave way to television, television has in turn given way to the internet. The internet now permeates the way we entertain ourselves and function in every conceivable way. I was recently talking to someone about calling directory assistance for a telephone number. I was informed by my conversationist they had never called directory assistance - they just went online to get the telephone number.

I am not complaining. Though closer now to 60 years of age than 50, this is not a screed on modern technologies. Instead, these are musings on how far behind fourth amendment law is on privacy.

Almost 50 years ago, the Supreme Court of the United States (SCOTUS) heard a case involving a federal investigation of illegal gambling activities. FBI agents placed an electronic eavesdropping device on the outside of a telephone booth that Charles Katz used to place illegal bets and get other gambling information. Based upon information recorded from his phone calls, Katz was convicted of federal anti-gambling law violations. Katz challenged the conviction in part on the ground that his phone conversations were recorded illegally.

Justice Potter Stewart's SCOTUS majority opinion reversing Katz's conviction centered on the physical protection that Katz had given to his oral communications by going into a phone booth. In this way, Katz's presence in the public phone booth was not as important as what he did upon entering the phone booth - close the door. "[W]hat he sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear." Justice Stewart wrote.

But it was the "reasonable expectation of privacy" language Justice John Marshall Harlan used in his concurrence that has been seized upon as the litmus test for privacy through the years. Though he did not write the majority opinion, Justice Harlan wrote of "a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'"

Fast forward to 2012 and a SCOTUS decision confronting the warrantless attachment of GPS tracking device to a Jeep Cherokee belonging to Antoine Jones. The District of Columbia Police suspected Jones of narcotics trafficking using the Jeep Cherokee. SCOTUS ultimately agreed with Jones, but the court was split on the reasons.

Justice Scalia wrote the majority opinion, but used non-Katz based reasoning not shared by the rest of the majority. Justice Alito wrote one concurring opinion, employing Katz reasoning of "expectation of privacy." Justice Sotomayor separately concurred with the judgement, but differed with both Justices Scalia, and more importantly, Justice Alito on the details on the expectation of privacy to which not only Jones, but society, should expect in the face of changing technologies.

In a world in which GPS technology has become ubiquitous, where every smart phone has a GPS application, I would ask this: What expectation of privacy are we as a society entitled? If a person disables their GPS smart phone application, goes "old school" with a map, the person is demonstrating a subjective expectation of privacy. Who does this anymore? Certainly almost no one under 35 years of age. Like my call to directory assistance, it is an anachronism. So though I may go old school, most of society does not.

In the larger picture, the public is willing, in my view, to tolerate much, much less privacy than when SCOTUS decided Katz 50 years ago. Just take the facts of Katz. Never mind that a phone booth is no longer to be found. - anywhere. Not that it makes a difference. People daily demonstrate a willingness to speak on their cell phones about anything and everything in public. Just head to your nearest bookstore or library and listen for the cell phone conversations people are willing to expose to the public.

More to the point, most everyone, myself included, share parts of themselves on social media. Twitter, Snapchat, Instagram. In the next 10 years today's teenagers will mold a world where experiences will be shared, with commentary and without filter, using applications such as Periscope. This is our world now - selfies, filmmaking, photography, and communication of most every individual detail. This is the new paradigm - diminished privacy.

I do not have to like it, but the technological world Katz and I inhabited 50 years ago has changed as dramatically as the one inhabited before Johannes Gutenberg introduced the world to movable type in the 15th century.

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