Why 2007 is not like 1984: a broader perspective on technology's effect on privacy and Fourth Amendment jurisprudence.

AuthorSimmons, Ric
  1. INTRODUCTION

    The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live--did live, from habit that became instinct--in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized. (1) George Orwell's chilling vision of the future depicted ways in which new technologies could one day be used by a totalitarian state to obliterate all privacy and freedom. Orwell wrote the novel in 1948, (2) when television was still in its infancy, computers filled entire rooms and processed data at a snail's pace, and devices such as thermal imagers and particle detectors existed only in science fiction stories. (3) At the dawn of this technological revolution, Orwell presented us with a clear message: new technologies would allow the state to dramatically increase its power over the individual, enabling totalitarian and fascist states to control every aspect of the lives of their citizens. (4)

    It is now evident that Orwell's vision was wrong. Modern technology has turned out to be the totalitarian state's worst enemy. Video cameras are indeed everywhere, but they are embedded into cell phones and wielded by millions of individual citizens--and as a result it is the people who are watching the government, not the other way around. (5) These same cell phones use satellite transmissions to communicate information to every corner of the globe, defying government censors. (6) Meanwhile, the Internet has exponentially increased the flow of personal, commercial, and political information to and from individuals in ways that are largely beyond state control. The powerful computers that were foreseen do in fact exist today--only instead of being massive mainframes that fill rooms and that are so expensive only huge corporations and state actors can afford them, these computers sit on the desk or in the lap of private individuals, allowing each of us to create, store, manipulate, and process amounts and types of data that were inconceivable forty years ago. (7) All the terrifying technological tools that Big Brother used in Orwell's dystopian vision (8) are instead owned and controlled by individual citizens, both in this country and around the world. New technologies have indeed dramatically altered the balance of power between state control and individual autonomy--but the effect has been just the opposite of what Orwell predicted.

    A similar misperception has occurred in the context of the Fourth Amendment and privacy--despite evidence that technology has enhanced privacy for many people, there exists a fear that new technologies are eroding Fourth Amendment protections. Lay people read about powerful new surveillance technologies used by law enforcement agents and understandably react with trepidation. (9) Over the last century, the government has begun tapping our phones; (10) flying (at lower and lower altitudes) over our houses and yards; (11) installing video cameras or hidden microphones in our offices, homes, and hotel rooms; (12) intercepting our emails; (13) scanning images of our faces in crowds; (14) monitoring our web browsing; (15) seizing and copying from our hard drives, (16) and even looking through the walls of our houses. (17) Legal scholars have also reacted with alarm, decrying the loss of privacy and individual rights brought on by new surveillance technologies. (18)

    But the impact of new surveillance technologies is only one chapter of the story of how technology has affected privacy in modern society. Over the past century, millions of individuals--both innocent and culpable-have begun using everyday technology to increase their privacy. Just as George Orwell misunderstood the implications of new technologies by focusing only on their use by government agents, Fourth Amendment scholars all but ignore the ways in which technology has enabled average citizens and criminals to keep their activities hidden from law enforcement. (19) New technology has also strengthened individual privacy in at least two other ways: by enabling governments to target surveillance more effectively, resulting in more narrowly tailored searches; (20) and by enhancing our ability to monitor the conduct of government agents.

    The conventional wisdom among scholars consists of two assertions, one factual and one normative. The factual assertion is that the effect of new technologies has been to alter the balance between individual privacy and the state's power to investigate crimes, thereby decreasing individual privacy and increasing the ability of government agents to learn private information about us. (21) The normative assertion is that this shift is a negative development, and therefore it is necessary to restore the original balance--either by creating more regulations or statutes to limit government power, or perhaps by changing the way the Fourth Amendment is interpreted by the courts in cases involving new technologies. (22) This Article will argue that this factual assertion is incorrect--or, more accurately, that it is incomplete--and therefore too simplistic, because it does not take into account the wide variety of ways in which technology has affected the balance between individual privacy and government investigatory power.

    This Article will examine the interplay between technology, law, and privacy, taking a broad view on how technology has affected the critical balance between individual privacy and effective law enforcement. (23) Section II will examine how technology has, for the most part, enhanced the privacy of individuals in their everyday lives, allowing them to communicate more privately, store data more securely, and conduct a much wider range of activities within the privacy of their own homes. Section III then turns to the effect of new technology on government surveillance, and divides surveillance technologies into three categories: those that allow government agents to do what was previously impossible; those that allow government agents to conduct traditional methods of surveillance more efficiently; and, those that the government has developed in order to combat the privacy-enhancing technologies described in Section II. Section IV will review the current statutory and constitutional law regarding surveillance technology, and Section V will then critically examine that law--and the balance or imbalance that it creates between the two competing goals of Fourth Amendment jurisprudence. Finally, Section VI will examine other ways in which technology has impacted everyday privacy.

  2. TECHNOLOGY AND PRIVACY

    In order to understand the true impact of technology on privacy--and, more specifically, in order to accurately gauge the effect of new surveillance technology on the balance between individual privacy and government investigatory power--the first step is to evaluate how technology has changed the amount of privacy in society for everyday citizens. As in any context in which we are examining the effects of technology on society, the changes tend to be subtle and incremental in the short term, but dramatic and momentous in the long run. In the field of medicine, for example, each new drug or surgical technique might have a small influence on the way a certain disease is treated--but the cumulative effect of all of these advances has increased life expectancy in this country from around forty-seven to seventy-eight over the past one hundred years. (24)

    Likewise, the effect of new technologies on our privacy in everyday life is easy to overlook, since we quickly adapt to the small gains that are made and fail to notice how fundamentally our lives are changing. By taking a broader perspective, however, we can see how new technology has dramatically increased the amount of privacy each of us now enjoys in our lives.

    To better visualize this broad perspective, let us engage in a time-travel thought experiment. Assume that Sally and Harry, two residents of early nineteenth century America, wish to have a private communication with each other. As it turns out, their options are limited. Sally could invite Harry to her home--though of course anyone could see Harry entering and leaving Sally's home, so the fact that they were conversing would be public knowledge. Sally could write Harry a letter, but again the name of the person with whom she was communicating would be open to the world. More troubling would be the fact that--assuming there was no legal impediment--any government agent wishing to know the content of her communication could intercept and read the mail before it got to its destination.

    Now assume that Sally and Harry live in 1950. The technological advance of the telephone (25) has greatly increased their chances of having a private conversation. Casual observers of their affairs will have no idea that the two of them are talking, much less what they are talking about. But although the telephone is an improvement, it is not foolproof. They can only use the telephone at certain locations--their home, their office, perhaps a quasi-public phone booth. Furthermore, the local telephone operator might be listening in on their phone conversation. (26) Almost all residential lines are party lines, which each have to share with up to ten other households--and any member of any of those households could be eavesdropping on their conversation without their knowledge. (27) And once again (assuming no...

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