Contemporary notions of privacy are complex and it is common to hear commentators calling the current state of privacy, or lack thereof, unprecedented. I would challenge the notion of an unprecedented violations of privacy on the basis of historical relativity. In absolute terms there is little question that the world we live in challenges any notions of privacy that have ever existed. However in relative terms, from a certain level of privacy to another, the rise of newspapers and the telegraph are interesting to compare to the modern era. In this paper I will revisit several key cultural and legal landmarks that have guided us to our current construct of privacy and look at future privacy implications of technologies like Amazon Echo and services like Facebook.
The United States definition of humans as beings imbued with inalienable rights is something not found (to such an extreme) in other parts of the world. over the last several hundred years, culturally we have come to believe that privacy is one of these rights when in fact there is no mention of it in the Constitution. Two Amendments are the core foundations to privacy. Amendment IV states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."1 Amendment V builds on this, "no person shall be... deprived of life, liberty, or property, without due process of law."2 It is important to note that these definitions refer to physical property or land. There is no mention of a person's right to privacy, to their own information or to be left alone.
In reality these documents only hold small hints of our modern notions of privacy, however they get built upon over the following hundreds of years as the increasing capabilities of technology force their creating generations to redefine property, life, and personal freedom. While some might fault the Founding Fathers for not being explicit about rights of personal information and defining personal privacy, the values they instilled in the Constitution were a reflection of the technologies of the time. All citizens had a reasonable expectation of privacy because violating privacy meant violating physical space and distributing that information requires significant resources. Privacy was an implicit right and need not be put in the Constitution. In more structured terms, privacy was always been an implicit right due to three specific factors:
- It was logistically impossible to follow all citizens around all the time. Technology never existed to allow for the routine and consistent surveillance of individuals all the time.
- It has been difficult to invade someone’s privacy without physically access a location you were not supposed to access. It was impossible get something out of someone's house without physically going into their house.
- When information was acquired it was often difficult to store this information or feed it to interested parties. Collecting and transferring information quickly has been a challenge without technology.
Thus privacy has always been an implicit right, not guaranteed by a document like the Constitution but guaranteed by physical limitations. Privacy had never been an explicit right because of the difficulties in collecting, storing, and transferring information. These limitations all evolve out of one core limitation: the physicality of information. At the writing of the constitution, information that could be transferred to another party was either verbal, requiring direct human to human contact, or written, requiring people to carry it from location to location.
Moves towards defining a right to privacy came in the mid to late 1800's with the spread of newspapers. With the explosion of railroads, telegraphs, and newspapers, information became increasingly valuable. However because its new value people wanted more of it and got it more quickly. Technology completely reshaped the way information is shared. For the first time in history, information could travel faster than a human, without a human carrying some sort of message.3 Due to technological advancements like the telegraph, information became orders of magnitude more valuable than it had been previously. This spurred the publishing of one of the first documents to truly describe a fundamental part of our modern conception of privacy - The Right To Privacy by Samuel Warren and Louis D. Brandeis.
This document crystallizes the seed of our modern conception of property and privacy. In the century since Independence, privacy has become something that people expect and that needs protection. They state that a right to not be deprived of life, ergo a right to life, "has come to mean the right to enjoy life--the right to be let alone"4. More importantly, they state that "the term 'property' has grown to compromise every form of possession-- intangible, as well as tangible."5 One's "things" are no longer limited to physical objects but include intangible resources like thoughts and relationships. While these seem obvious in contemporary understandings of day to day life, in the historical context of this document, these are powerful statements.
At this point in history, newspapers and mass publishing were in full swing and technologies like railroads and telegraphs have helped mold a more information focused culture. These factors, along with the ability of information to travel quickly, are important because they challenge two aspects of the three implicit enforcements of privacy I enumerated above, specifically points (2) and (3). Firstly, invading someone's property no longer means invading their personal space. Because the population began to desire more information and newspapers began to hunt for more and more stories, it became natural to begin reporting on the lives of other human beings - not just events. Secondly, newspapers and telegraphs enable the rapid dissemination of information, so that distributing more stories about more things more of the time is feasible.
The technology and population begin to mold one another. It’s easy to share information, so people want to more because they can digest the information that is shared quickly. The information travels quickly and people begin to expect that something must always be happening. Because of the technology, the population’s desire feeds back into the system. A flywheel has been created.Information travels faster so more people get access to information, because of this expectation the population begins to want more information.
This flywheel, in many respects, introduces the concept of near real time information virality. However rapid information dissemination and an increase in the generation of information begs the question, if free speech is guaranteed by the Constitution, why can't any and all information be published? Our modern concepts of privacy, and the associated right to be left alone, seems contradictory to that of free speech. This contradiction continues however we resolve it by digging deeper into The Right to Privacy and its references.
In Millar v Taylor it is stated that "it is certain every man has a right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends."6 This historic case is referenced by Samuel Warren and Louis Brandeis who build on its foundation. They find that no matter the means of expression, "no other has the right to publish his productions in any form, without his consent" and the right is only lost when the author himself communicates his production to the public -- in other words, publishes it. Finally, and most importantly, "the common-law right is lost as soon as there is a publication."7
We have now uncovered their understanding of what privacy means. Publishing someone's personal journal violates someone's right to be left alone unless they have explicitly published it themselves. In this lies one of the greatest contrasts between the writing of the Constitution, the Right to Privacy and our contemporary early 21st Century understanding of privacy. Publishing in 1890 means something far different than publishing in today's world and required much more effort and deliberate action on behalf of the owner of the material.
While the above document laid the foundation for the cultural construction of privacy, the rulings of Katz v United States and Smith v Maryland the United States define privacy in legal senses. In Katz v United States a person's reasonable expectation of privacy is defined more specifically and the ideals declared in "The Right To Privacy" are help. The case was decided by stating that "the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements." At this point there becomes a more strict legal framework for what defines a privacy and whether or not that includes information.8
The waters muddy when we visit Smith v Maryland which defines what a "search" is within the Fourth Amendment. This is a particularly important case because it sets precedence in the telecommunications industry, of particular relevant today. The ruling states that looking at telecommunications information is not a "search", with this verdict resting upon several keys facts. Firstly, that using a public telephone cannot possibly be private because users in general understand that the phone numbers must be conveyed to the company for completion. Simply, the information is being recorded and therefore the user cannot possibly have some expectation of privacy.9
Most importantly, even if the user did have some subjective expectation of privacy, this is not one that society finds reasonable. By dialing the phone number, that information is exposed to the phone company's equipment and therefore could be revealed by the company. The verdict in this case cannot be misunderstood or misconstrued it sets a powerful legal precedence that is used in the modern context to an extreme. Legally speaking when one channels information through a service provider, all rights to privacy concerning that information. That information, in the legal sense, is published. While this may have seemed legitimate decades ago, the modern reality throws this notion completely out the window.
This ruling came at a time when we did not carry our lives in our pockets or on our computers. How can one ever expect reasonable privacy when we send all of our information to service providers like Facebook or Amazon? The implications of these legal concepts are astounding. As citizens, our information does not belong to us simply because we use these services. Even if we aren’t interacting with them directly, these fundamental underlying platforms are involved in nearly every application that has any utility. In all seriousness, these legal decisions completely ignore the technological realities of the current time.
Does having a microphone in my computer or on my phone mean that I can never reasonably expect to have a private conversation simply because there's a device that can record what it is that I am saying? Beyond that, because of the presence of a telephone in my presence, research by Doug Tygar of UC Berkeley shows that with a microphone up to 96% of keystrokes on a keyboard can be identified and recovered.10 Creativity is the only limit by which one can figure out ways that our personal space and privacy can be invaded.
However our challenges are not unprecedented. The rise of newspapers and telegraphs all saw technology completely uproot the legal and cultural frameworks with respect to privacy. Just as the Right to Privacy was published as a reaction to the technological underpinnings brought before our country over a century ago, I believe that soon, due to technology helping to mold our understandings of privacy and information, that our generation too will create a legal framework to help protect the information we channel through third parties.
1 Bill of Rights (1789): http://www.archives.gov/exhibits/charters/bill*of*rights*transcript.html 2 Bill of Rights (1789): http://www.archives.gov/exhibits/charters/bill*of*rights*transcript.html 3 I’m excluding carrier pigeons from this consciously, I believe that they are too unreliable to be included. 4 The Right To Privacy by Samuel Warren and Louis D. Brandeis: http://www.law.louisville.edu/library/collections/brandeis/node/225 5 The Right To Privacy by Samuel Warren and Louis D. Brandeis: http://www.law.louisville.edu/library/collections/brandeis/node/225 6 Yates, J., in Millar v. Taylor, 4 Burr. 2303, 2379 (1769): http://copy.law.cam.ac.uk/cam/tools/request/showRecord.php?id=record*uk*1769 7 The Right To Privacy by Samuel Warren and Louis D. Brandeis: http://www.law.louisville.edu/library/collections/brandeis/node/225 8 Katz v. United States 389 U.S. 347 (1967): https://supreme.justia.com/cases/federal/us/389/347/ 9 Smith v. Maryland 442 U.S. 735 (1979): https://supreme.justia.com/cases/federal/us/442/735/ ￼10 Keyboard Acoustic Emanations Revisited (2005): http://www.cs.berkeley.edu/~tygar/papers/Keyboard*Acoustic*Emanations\_Revisited/preprint.pdf