In “reality,” this can only happen in the movies.

In 1966 Congressman Frank Horton stated:

Good computer men know that one of the most practical of our present safeguards of privacy is the fragmented nature of present information. It is scattered in little bits and pieces across the geography and years of our life. Retrieval is impractical and often impossible. A central data bank removes completely this safeguard. I have every confidence that ways will be found for all of us to benefit from the great advances of the computer men, but those benefits must never be purchased at the price of our freedom to live as individuals with private lives…  (Richard O. Mason, “Four Ethical Issues of the Information Age” (March 1986) Management Information Systems Quarter, vol. 10, no. 1.)

Horton, according to NNDB.com (ironic motto: “tracking the entire world”) died of a stroke in 2004.  But I was reminded of him this morning while reading an article about electronic trails, lawyers and law enforcement.

The article came to me via a “tweet,” an electronic message someone posted to Twitter.  Twitter itself is another example of the ways in which we of the Information Age participate in a global reconstruction of The Truman Show, with each and every one of us as stars in our own right.

As I’ve written here and here, law enforcement increasingly makes use of our data trails.

In the old days, we were used to hearing that “anything you say can and will be used against you in a court of law.”  Criminal attorneys, at least, are therefore always advising their clients — most of whom ignore us to their own detriment on this anyway — not to say anything, to anyone, concerning events around which they may have been charged.

The problem with life on The Truman Show, though, is that you don’t always know when someone is listening.  Most people these days own at least one “smart phone.”  And smart phones are susceptible to “snoopware.”

New snoopware can activate a microphone or cameraphone even if the device isn’t being used at the time. That means that the user at the other end can listen in on conversations and extract all types of personal and corporate information, or even activate a camera that can survey the activities of the owner. (Jeff Cox, “Beware of cellphone snoops” (May 23, 2007) CNN Money.)

Call me paranoid, but I constantly wonder how often — not whether, but how often — our government utilizes snoopware against us.  After all, if they’ll plant GPS tracking devices on people without warrants and our courts are okay with that, it’s just a small step from that to snoopware.  Judge Posner, in United States of America v. Garcia (2007) 474 F.3d 994, gave an argument that conceivably would distinguish between planting a GPS tracking device and planting snoopware.

But all we need to undo that argument is another set of legal opinions from another Bush Regime or a few more rulings like this one from the Court he left behind.  (Besides, as Richard Koman has noted, Posner’s argument doesn’t really hold water.)

The real question is this:  In virtually every case concerning what law enforcement can and cannot do without a warrant, at least since 1967, the standard for determining whether or not a warrant is required is whether there was “a reasonable expectation of privacy.”

How long before the argument from law enforcement goes like this:

Today’s technology allows for all human activities to be observable by almost anyone all the time.  Therefore, there is no reasonable expectation of privacy in anything a person does.  Everyone has to know there is a good possibility that their spouse, a stalker, a marketer collecting data, or just curious individuals are monitoring them at any given moment.  Therefore, when we monitor individuals for the public safety purposes, this is just one more monitor.  Any reasonable person would understand that a) this is not unique because someone else is likely already observing them and b) we are only doing it to protect the citizens.

After all, there are people who drive around attempting to observe you for various reasons and, with today’s technology, they often succeed in learning more about you than you ever thought possible.

Nevertheless, whenever I think about governmental intrusions being justified — as by the undeservedly reputable Judge Posner — on the basis of the need for “the reasonable expectation of privacy” to evolve with new technologies, I can’t help but remember the old saying:

Just because you can do something, doesn’t mean you should do it.

What say you?  I look forward to monitoring your comments using the form below. 

Being of a philosophical bent and also with a strong interest in Anthropology, I couldn’t help but ponder some the impact the Internet was having on our world. And, of course, privacy issues were quickly becoming paramount.

The impact computers and internetworks have had upon privacy concerns is not limited to the Internet, of course. Nowadays, in particular, someone who wanted to know could tell what kind of food you prefer to eat, what types of medicines you require, what books you like to read, etc. Even if you don’t use a credit card, you probably have something like a Von’s card. These are perfectly good for tracking your purchases and dumping them into some massive database somewhere just waiting to be mined.

And don’t give me that, “It’s not tracking individual purchases. It just collects data, but ‘anonymously.’” Do you think when the checker looks at your receipt and says, “Thank you, Mr. Horowitz,” that they just happen to have prodigious memories and recognize all the customers who’ve ever come through the line?

But enough of longing for the old days, when what one ate, bought, or needed was nobody else’s business.

Recently, Judge Kozinski of the Ninth Circuit Court of Appeals was smeared by the media after an angry litigant invaded his privacy and discovered what, for awhile, was erroneously referred to as “Internet porn.”¹ Whoa! A judge in the Ninth Circuit Court of Appeals is into Internet porn!?!?

Turns out, it’s not quite that juicy.²

The interesting thing about this is not that Judge Kozinski had files of which some people might disapprove on his computer. Nor is it interesting to realize how easy it is to incorrectly set up a computer so that it can be invaded by miscreants who don’t care about your privacy rights. What’s interesting is the people saying things like, “There is no expectation of privacy on the Internet.”

Why not? My initial response to this statement, posted earlier today on the ABA’s solo practitioners’ listserv, was similar to that of Lawrence Lessig’s.³

The thing I find wrong with arguments against any expectation of privacy on the Internet is this: I see no difference between hacking into someone’s computer system and hacking into their house, or mailbox. Some people hack into houses using their feet: I’ve defended some whose alleged modus operandi is kicking in doors. Others break windows. Some simply walk in to homes after owners leave doors unlocked. Do none of those people who choose to live in houses have a reasonable expectation of privacy in their own homes?

Some people hack into mailboxes by various means. For the older-style mailboxes that don’t have keys, hacking is even easier: there’s not so much as an index.php or index.html.⁴ You simply walk to the box outside the house, pull the front open with the handy latch and, voila!, you’re in! Then you hack into the envelope and retrieve the goodies.

The argument that people don’t have an expectation of privacy in their own stuff just because it’s possible to hack into it without having to physically kick in a door or break into a mailbox is specious. The ownership of the stuff is undisputed. The DESIRE to not have others going through one’s stuff is likely still there. Just because the invaders did not have to physically journey to your home to violate you doesn’t make you any less violated. That they could rifle through your private communications without having to actually break the doors or physically tear open the envelopes should not alter whether or not you have an expectation of privacy.

Unless we think that your stupidity in owning a house and keeping things behind a door which can be kicked in, or having an old-style mailbox anyone can pull open to steal your mail means you have no reasonable expectation of privacy.

I’m sorry. There are no locks so strong that they can’t be broken somehow. Just ask Benjamin Franklin Gates.

1. For those who may visit this article after the links have expired, there was no Internet porn. There was definitely no bestiality. As others have noted, the “bestiality video” was a silly video that had been posted on YouTube — hardly the hotbed of hardcore perverse pornography.
2. See Lawrence Lessig’s article on this for more at http://www.lessig.org/blog/2008/06/the_kozinski_mess.html.
3. Ibid.
4. Such pages will usually prevent you from seeing what other files might exist in the same directory where they are found.