Editorial: Privacy isn't a lost notion -- yet
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Is privacy passe?
In a world gone digital, is the notion of a right to control who has access to personal information about you and how it's used as outmoded as cameras with film and typewriters with ribbons?
The revelation that the National Security Agency is collecting Americans' phone records and monitoring online communications has sparked an important debate about how much spying in the name of security is too much. But whenever we're networking, shopping or browsing online, paying tolls with an E-ZPass, or just going about our business under the unblinking gaze of security cameras like those linked to stream live footage from public and private places to police in Nassau County, we allow others to collect so much information about our lives that it may seem privacy, as we once knew it, is no longer practical or even possible.
Many people say that's OK. For them, what's gained -- the convenience of shopping from home, say, not to mention protection against crime and terrorism -- is worth what's lost. For others, the erosion of privacy just seems unavoidable, so they don't fight it.
There's no practical way to opt out of using all the technology that defines life in the modern world, and relinquishing some privacy has been baked into the deal with service providers such as Facebook, Google and Twitter. Those digital giants and others provide detailed terms and conditions of service spelling out how information about their customers is used and shared, including with law enforcement. But who reads all that fine print?
Yet privacy shouldn't be surrendered so cavalierly. When you're not doing anything wrong, what you're doing is nobody's business. The law safeguarding the information we trust to third parties needs to catch up with the technology used to assemble and mine it.
In 1986, when Congress enacted the Electronic Communications Privacy Act, social networks, email and countless other digital innovations so ubiquitous today were somewhere over the horizon. Now people are inseparable from their smartphones and tablets. It's how we buy things, store and share photos, bank, pay bills, make friends, create documents, and even find soul mates. Those activities generate records of our associations, interests, finances, beliefs, activities and even our location at any given moment -- records that routinely reside in the hands of third parties.
The notion in current law that we forfeit any reasonable expectation of privacy when information is conveyed to a third party should be revisited. It was a plausible distinction in 1986, but with technologies like Web-based email and cloud storage, the nature of data maintained by third parties has changed and the volume has exploded.
It may be useful, desirable even, for companies to hold on to data about your Internet searches or to monitor your email or postings with an eye to enriching your online experience or directing advertising your way that matches your interests. It's less benign when law enforcement or intelligence officials dip into all that personal information.
The Constitution's Fourth Amendment guarantees that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Store email or pictures in your home computer and police need a warrant to get them. But since the courts have carved out an exception for information held by third parties, when you store those same files on a company's remote server, no warrant is required if you've ever opened them, or if they've remained unopened for more than 180 days. That's absurd. Congress is considering legislation to eliminate that 180-day rule and require a warrant in both circumstances. That's a start.
Our expectation of privacy is in flux, but its demise isn't inevitable.