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Everything You Thought You Knew About Privacy Is Wrong: The Snowden Legacy
Posted on June 6th 2014
Time for a reality check. You have no privacy.
When you send an email or write a private message, there’s an expectation that we have privacy. We believe we have that right. Our own thoughts, our own lives, choices and actions, to stand on their own and not be judged by others.
Behind closed doors we carry on our lives, living as we wish, often showing a different side in public. You have a bad day and write to a friend to share the events private and personal matters. You made a choice believing that what you have written is only between yourself and you confidant.
What if everything you wrote was actually on display, potentially for the entire world to read? Instead of the privacy you hope for, it is immediately available for a Government agency to access. Monitored and reviewed as part of the process that guarantees and protects your liberties and freedoms. Would you feel violated? Safer? Upset? Indifferent?
Privacy is a Fairy Tale.
Privacy, since the Iron Age, has never existed in the way you expect it has. We all grew up believing the Fairy Tale called “Right to Privacy” that taught us to believe we had the potential for absolute privacy. Truly a Fairy Tale, and most definitely of the Grimm variation.
The average American believes, when they post a private message on Facebook, send an instant message on Google, or use SnapChat, that only the party the message is intended for is the person who will receive it. Many are unaware that a server somewhere is storing this data, even when you think a message “expires” and disappears.
Before I shake the foundation of your happy reality, and destroy the Fairy Tale, there is an important point that must be made. The Constitution of the United States does not guarantee you the “right to privacy”. At least not in the way that most people believe it is guaranteed.
PoliSci 101: The United States Constitution and the 4th Amendment
With the dawn of the era of Edward Snowden, Facebook, the NSA and Privacy as the topic du jour, evidence of the fallacy of the Fairy Tale of Privacy is clear. To understand what privacy means in 2014, is to realize it is not significantly different from what it meant in 1890. It won’t continue to age well either; the essential need is a revision of the amendment, or an amendment to the amendment.
Conversations on privacy in 2014 are focused on the American view of rights. Americans generally do not have a thorough understanding of what their “right to privacy” is. The 4th Amendment to the US Constitution was drafted as a basis for “expectation of privacy” and established legal tests that help to define and identify violations to the amendment and Constitution.
Worldwide, the view of privacy is focused more on the common, human, based view that the individual “right of privacy” is based upon the “theory of natural rights.” The theory of natural rights states that each human has “the right to be let alone” as was written by Samuel D. Warren and Louis Brandeis in The Right to Privacy (published in Harvard Law Review in 1890).
In the document Brandeis identified the Government as a possible ‘privacy invader’ and wrote:
Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.
We presume to understand what “the right to privacy” means that we have a right to the expectation of privacy therefore privacy. The 4th Amendment clearly contradicts that expectation as noted in the following quote from a paper by Scott Kristian Hvidt entitled “Unreasonable Expectation of Privacy in Personal Digital Information: A Proposal to Amend the Third Party Doctrine and a Critique of 'Modern' Privacy Statutes".
The Fourth Amendment rule titled "the third party doctrine" is at the heart of privacy debates over the constitutionality of the government’s mass data collection and one’s privacy expectations in the information conveyed to commercial firms. The third party doctrine states that information one discloses to a third party loses its Fourth Amendment protection because the individual has knowingly exposed the information to another… information exposed can be accessed by the government without having to obtain a warrant because the government’s actions to access information disclosed to others do not constitute a search within the meaning of the Fourth Amendment.
Hvidt’s observation is essential to the discussion of privacy in the modern digital age. Based on the third party doctrine, when we share information digitally via a website such as Facebook, we are dismissing any right, or claim, to privacy.
The False Assumption of Privacy
When using digital forms of communication, you typically utilize a third party service. By definition of it being a “third party” you have no control or ownership. The “third party doctrine” therefore says that once information is shared in this manner, it is no longer protected by the 4th Amendment. The government has an established, and protected, right within this amendment to access any information that you have posted, shared, stored, etc. on the third party websites, servers or other instruments. Not exactly what you had assumed is it?
There have been attempts to protect those extensions of our homes, but the most recent was in 1986. It is obviously time for the discussion of privacy in the US Government and Judicial System to be revisited as Justice Sotomayor observed in her opinion.
Cloud Computing and Privacy
Cloud services continue to grow in popularity, more people rely upon cloud storage solutions like Google Drive or Microsoft OneDrive. What that means is that you are electing to proffer up all of your information to the government, should they choose to access it.
If an individual in turn elects to contain the storage of their data to devices and storage systems uner their control, and within their home then this would meet the parameters of the 4th Amendment and that data would be protected and privacy rights would apply, requiring any seizure to occur via the proper channels of the law, as in court ordered warrants, etc. In keeping the data confined to personal equipment and storage you retain your right to privacy. Items that remain within the confines of your personal space, which is a private residence, meets the spatial definition of privacy contained in the 4th Amendment.
Reality: The State of Privacy in 2014
The point is to make people aware of the true meaning of privacy as it applies to all of us in the digital age. It cannot exist, as we would expect or assume it would in 2014. The definition of what privacy is and the expectations we should have is over 100 years old. If you consider the world in 1890 versus 2014, I think we have a quantum problem.
At What Cost Liberty?
Some prefer to bury their heads in the sand, pretending to be unaware of the world around them. We are so “me centric” that we forget that each me is a part of the greater “we” and therefore the World.
Do I believe we have a greater right to privacy? Absolutely, I have no doubt every human being would agree with this statement, we have a human right to privacy.
The demand for privacy in the name of human basic needs isn’t always logical, but it is reasonable. People have quirks, they have fetishes, strong habits, whatever it might be, and do they truly believe they are so unique that a normal human quirk would demand such strict judgment?
If you truly have nothing to hide, then why would you worry about privacy?
As Shakespeare wrote so eloquently in Hamlet: “The Lady doth protest too much, methinks.”
What do you think?