It’s time to reassess the balance between privacy and security.
WE live under surveillance. In our homes. In our offices. In our public spaces. With the widespread deployment of GPS devices, digital networks and global satellites, our digital footprints are tracked and recorded to a degree we never anticipated and can’t completely understand.
Even before Edward Snowden exposed the National Security Agency’s clandestine programs to intercept large amounts of our phone calls and emails, we had ceded ground to local police, whose cameras track us both in public spaces and as our vehicles move in traffic. Even before the Patriot Act and creation of toothless Foreign Intelligence Surveillance Act courts, we had ceded too much liberty in favor of theoretical increases in security. And even before the transition to new mobile devices such as smartphones, our data were too vulnerable and too exposed.
It is time to reassess the balance between privacy and security in our laws and our culture and give the public a powerful new legal tool to protect personal data, especially with respect to the communication devices and digital networks that we have come to rely upon.
While most Americans assume that “privacy” is a long-standing legal concept enshrined in the U.S. Constitution, they are, in fact, mistaken. The Founding Fathers drafted amendments in the Bill of Rights that cover a very limited scope of protection of personal space. The Third Amendment prevents the government from quartering troops in our homes, which was a major concern after British colonial rule. The Fourth Amendment seeks to create zones of security in our persons and papers “against unreasonable searches and seizures” and introduces the concept of “probable cause” before judges can issue warrants.
Apart from these protections ratified in December of 1791, federal law has only haltingly moved to protect personal privacy. A hodgepodge of 20 federal statutes protect narrow slices of private information, ranging from health-care information (HIPAA) to the Children’s Online Privacy Protection Act to the Video Privacy Protection Act of 1988, which was prompted by embarrassing disclosures of Judge Robert Bork’s personal video rentals during his Supreme Court nomination hearing. Congress has chartered several federal agencies, such as the Federal Trade Commission, to enforce consumer protection.
Not until 1965 did Supreme Court Justice William O. Douglas find a “right to privacy” inherent in the “penumbra” of the Constitution. And it wasn’t until last year that the Supreme Court, by a unanimous 9-0 ruling, declared in Riley v. California that the police cannot search an individual’s cellphone during an arrest without first obtaining a warrant.
This particular case arose when San Diego police seized a man’s cellphone at a traffic stop and searched it both on the scene and at the police station, gleaning information that linked him to a gang-related shooting. Writing for the court, Chief Justice John Roberts stated about mobile phones: “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ ”
Given the accelerating pace of technical change and the collection of information — by government at local, state and federal levels — our personal data will be placed at growing risk for the foreseeable future. With the advent of drones and Google Glass and ubiquitous video cameras, we can’t even imagine what mashup of recording devices and databases will next threaten our “privacies of life.”
Our state and federal courts should not have to infer privacy rights derived from the Third or Fourth amendments, nor be limited to making narrow rulings based on narrow precedents. Isn’t it time, 223 years after the original Bill of Rights, to emphatically establish the protection of the privacy of American citizens as a starting principle for our law and civil society?
In short, the abuses of power of the federal government and the unrestrained data-collection practices of modern culture argue for a new amendment to the Constitution that explicitly protects our privacy. With privacy as a starting point, courts and legislatures could then evaluate public-safety and national-security exceptions to a general pro-privacy bias. The onus, in short, should be on government to prove its right to our personal data and not on citizens to attempt to stop complex and rampant data-interception practices.
Our Bill of Rights was not perfect and our Constitution has required amendments of various degrees of gravitas over two centuries. First introduced in September of 1789 as part of the Bill of Rights package, the most recent amendment — pertaining to congressional salaries — was not ratified until 1992. Given the new consensus around privacy rights and the accelerating pace of technical change, we should ask our members of Congress to secure the two-thirds votes of both the U.S. House and Senate to propose an amendment to the Constitution to safeguard privacy as a first principle of American law.