“There is no such thing as absolute privacy in America; there is no place outside of judicial reach.”
While this quote may sound like a line from George Orwell’s dystopian science fiction novel, “1984,” it is actually a quote by former-FBI Director James Comey during a recent conference on cybersecurity. Comey also stated that Americans “have a reasonable expectation of privacy in our homes, in our cars, in our devices.” However, given the ever-growing prevalence of social media, data sharing, hacking, data breaches and government and private sector surveillance (whether consensual, judicially approved or otherwise), it is increasingly unreasonable for one to expect a modicum of privacy without completely disconnecting themselves from the digital world. Therein lies the dilemma. How is our collective perception of a reasonable expectation of privacy to be defined as we learn that so much of our daily lives consist of sharing our most personal information—both voluntarily and unwittingly? The answer, unsurprisingly, is not so clear. What is clear, however, is that the standard is a fluid one, which evolves over time as social norms, technology and our moral zeitgeist change. Presently, after over a century of increasing the scope of privacy rights in our country, the pendulum of privacy is swinging away from personal privacy.
The origin of our “reasonable expectation of privacy” standard, which is applied to various other statutory and common law causes of action such as invasion of privacy, can be traced back to the Supreme Court case of Katz v. United States. Justice Marshall Harlan set forth the following two requirements for a reasonable expectation of privacy to exist for purposes of the Fourth Amendment’s right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures: (1) the person must have exhibited an actual expectation of privacy; and (2) the expectation is one that society is prepared to recognize as reasonable. Importantly, this analysis encompasses both subjective and objective expectations, both of which are progressively diminishing as a result of a multitude of factors.
With respect to the subjective aspect, it is becoming increasingly difficult for people to maintain an actual expectation of privacy in light of the nearly constant news reports regarding warrantless surveillance, data breaches and hacking. Even the Central Intelligence Agency (CIA) and the National Security Agency (NSA), two organizations that are synonymous with secrecy, have suffered embarrassing hacks resulting in leaks of highly sensitive, classified information. Ironically, these leaks exposed government programs that were specifically designed to spy on people by intercepting private communications through ubiquitous consumer products like mobile telephones, tablet devices and televisions. Making matters worse, President Donald Trump recently signed into law a bill that repealed internet privacy protections approved by the Federal Communications Commission, which would have required internet service providers to get permission before collecting and sharing customer data including web browsing history, app usage and geo-location.
From Yahoo, to JPMorgan Chase, to online cheating site AshleyMadison.com, to allegations of foreign powers interfering with the 2016 presidential election, cyberattacks are increasingly becoming a serious threat to Americans’ most sensitive personal information. And with each hack, our subjective expectation of privacy continues to erode. In turn, despite our desire to retain and maintain some semblance of privacy, these modern day realities adversely affect the objective factor of the reasonable expectation of privacy test, which is whether the expectation is one that society is prepared to recognize as reasonable.
Unlike past generations, where personal matters were kept private, we now live in a culture where every detail is shared with friends, family and almost anyone else who is willing to listen; all in the name of accumulating “likes”—the new social currency. With the profusion of social data available, what would previously have taken years and specialized investigation to learn about someone can now be discovered online in moments.
In sum, after nearly a century of fighting for increased protections of personal privacy rights in America, it is clear that modern society is increasingly prepared to recognize a diminished expectation of privacy. In light of the fact that the omnipresence of social media and data sharing does not appear to be going away anytime soon, unless measures are taken to sway the pendulum of privacy back in the other direction, the only thing that we as a society can reasonably expect—is that nothing is truly private anymore.