Tuesday, March 11, 2014
By DAVEED GARTENSTEIN-ROSS and KELSEY D. ATHERTON
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A second conclusion is more disturbing, given the role technology plays in our lives: Our use of the Internet probably enjoys no constitutional protection. The Internet is designed to connect an individual to other parties, and most emails, Internet chats or Web browsing is routed through multiple servers. All Internet users are aware that their online activities are conveyed to a third party, which suggests there is no reasonable expectation of privacy, and no Fourth Amendment protection. (There are, however, some statutory protections, such as the Electronic Communications Privacy Act.)
And a third conclusion is that existing laws are intensely focused on privacy from the government, not privacy from non-governmental entities, be they corporations or other citizens. This focus on the government is unsurprising, since the Bill of Rights is meant to constrain the government's powers over its citizens. But, as explained, these nongovernmental entities have also become the very reason that our metadata and online activities do not enjoy constitutional protection from the government.
The manner in which we use technology, and hence what we consider private, has changed significantly since 1979. From a court's perspective, however, this is a distinction without a difference: Unless the Supreme Court alters Smith's holding or a statute grants greater protection to call data and online activities, information that is transmitted to third parties no longer has a reasonable expectation of privacy, and therefore does not enjoy Fourth Amendment protections. But beyond the legal perspective, the changes that have occurred in the way we use technology should matter to us.
EVOLVING USE OF TECHNOLOGY
Privacy has long been an unsettled concept. As Frederick S. Lane explains in "American Privacy: The 400-Year History of Our Most Contested Right," it was "at best a sometime thing in seventeenth and eighteenth-century America," but was by no means nonexistent. The concept of privacy underwent continual evolution, including important legal changes, through the middle of the 20th century. One of the most noteworthy legal developments was the 1965 Supreme Court decision Griswold v. Connecticut, which held for the first time that the Constitution provided a free-standing right of privacy. Griswold would give birth to several controversial progeny, including Roe v. Wade, which held that the constitutional right to privacy included abortion rights.
By the end of the 20th century, while privacy remained unsettled in important ways, it was expanding rather than shrinking. In 2000, the Supreme Court held that the right to privacy precluded state bans on partial-birth abortions, and in 2003 it struck down a Texas law that criminalized consensual oral and anal sex by gay couples. These decisions were consonant with what in 2000 was seen as a fairly stable and expanding conception of privacy. American observers and the legal system paid little attention as technological developments and accompanying changes in the way we relate to technology upended that conception.
The Internet only gained 1 million users worldwide in 1998, the same year Google was founded. Email was widely used in the United States by 2000, but did not enjoy the same degree of penetration worldwide, and Google's Gmail service wouldn't launch for another four years. Internet penetration was still undergoing rapid growth; by 2005, the Internet boasted 1 billion users.
Social media evolved markedly in this period. LiveJournal and Blogger launched in 1999, at a time when the word blog still hadn't become common parlance. The once-popular MySpace launched in 2003, followed by Facebook (which enjoyed more staying power) in 2004. These services introduced two innovations. First, they made it possible to map users' social networks in ways that the users didn't comprehend. Second, MySpace and Facebook encouraged frequent status updates rather than the longer entries that characterized previous services like Blogger. Posting became more impulsive, and -- particularly as methods of data analysis advanced -- users divulged much more about themselves than they knew. By 2013, for example, researchers found that by relying only on users' Facebook "likes," they could discern who was gay, and how users voted in elections.
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