The Future of Privacy

This article on privacy was published in the December issue of the La Quinta Gem, a local newspaper:

Privacy rights are becoming a dominant public policy issue in our technology-dominated world.  Americans have long expected privacy in our homes and other intimate areas of our lives.  This right is enshrined in the 4th Amendment to Constitution, which protects all people in the United States from “unreasonable searches and seizures,” and requires probable cause for all warrants.

Government intrusions of the most intimate kind have been highlighted in the news over the last few years. There have been strip searches of children in schools, without parents present, over allegations of theft or drug possession (often no items are found). A recent story, incredibly offensive to civil rights and human dignity, highlights a man who was stopped for a minor traffic issue (rolling stop out of a local grocery store in New Mexico).  The officer believed the was “clenching” his buttocks, indicating that he may be concealing drugs.  A judge signed a warrant allowing anal cavity searches over several hours. After the man was subjected to about 8 types of cavity searches, with no drugs found, he was released. This case is highlighted here because if the authorities will allow such invasive searches, how will the authorities look upon much less invasive drone or “smart” phone surveillance?

Cell phones, the internet, anything “smart” – from cars, to phones, soon to glasses and clothing, have unimaginable potential to enrich our lives, increase productivity, and amuse us.  But the dark side of these inventions is the real potential for the complete loss of privacy and continuous government and corporate observation of the most intimate details of our lives.  Already we are recorded by private industry in most populated areas; we are soon to be confronted with how the government can gather and use that information.

Appellate courts, comprising legal professionals who likely acquired their training before personal computers were invented, struggle with how to make legal rules crafted largely between 1790 and 1970 apply to the hyper-technological present.

Two cases have recently been accepted to the United States Supreme Court regarding cell phone searches. It is unknown how the cases will conclude, but current law in California allows police to go through a person’s cell phone as part of a minor traffic stop.  That’s right, the cops can read all you text messages, e-mails, and look at the pictures on your phone after you have been stopped for speeding.

What if you encrypt your cell phone or computer to keep the government out of your private information?  Some courts hold that the 5th Amendment right against self-incrimination protects a person from being forced to produce evidence against themselves in the form of a pass code.  However, others find no problem in holding a person in contempt and basically jailing him indefinitely until he gives government agents the encryption key or password.  So an individual can be incarcerated until he provides his private information to police, whether or not he has actually committed a crime.

Civilian law enforcement unmanned aerial drone technology is also rapidly becoming available.  Many states (not California) have passed laws to limit police use of aerial drones.  These devices hold enormous potential to help in emergency situations and help police investigation, but the potential for over-surveillance and violation of privacy is very real.  Current “plain view” doctrines could allow police to use drones to watch people in their yard or even to peer through open windows.

People should be aware of both the risks and benefits of new technology so that we can protect our liberty while we embrace these fantastic devices.