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How Privacy Became Illegal

Olmstead v. United States led us to the era of Snowden.

by
Amy Peikoff

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February 22, 2014 - 10:42 pm
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In his influential dissent in Olmstead v. United States, Supreme Court Justice Brandeis wrote:

[E]very unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Brandeis was the first in a decades-long line of justices who rejected the idea that whether a “search” has occurred depends on whether there was a physical trespass onto something protected by the Fourth Amendment (our “persons, houses, papers, and effects”).

The trend culminated in what is now known as the “reasonable expectation of privacy” test from Katz v. United States. As of Katz, a Fourth Amendment search takes place whenever the government violates an actual expectation of privacy that society is prepared to recognize as reasonable, whether or not there is a physical trespass.

While the doctrine at first seemed to offer us more privacy protection than we had under the “trespass doctrine,” things quickly changed. Twelve years after Katz, the Supreme Court decided Smith v. Maryland, a case involving the warrantless installation of a pen register — a device that collects telephone “metadata,” such as phone numbers dialed, and perhaps time and length of phone calls. The Court held that installation of a pen register is not a search, because the data being collected by the device is data that the customer has shared with the phone company, a “third party.” Once one has shared data with a third party for any purpose, the Court held, one no longer has a “reasonable expectation of privacy” in it.

And so the “reasonable expectation of privacy” test, once believed to be privacy’s greatest ally, quickly became its nemesis. Legal protection of information we share with a third party is now given only by the grace of statute. Today, more and more of what we do involves sharing information via third parties, either online or via cellular network. In this context the third-party doctrine, combined with policies of liberal data sharing among federal agencies, has transported us into a virtual Benthamite panopticon.

Brandeis et al. wanted to free us from worrying about the means by which government invaded our privacy, and as a result we get to worry about what statutory protection our government deigns to offer our private information. As Snowden’s revelations have shown, that protection doesn’t amount to much.

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Top Rated Comments   
The third party rationale pretty well evaporates in cases where the government requires the records in question to be kept by the third parties. A lot of the telecom metadata is kept because the government requires that it be kept even though it is of no value to the companies. Why do they care what cell tower a call was sent through?

Suppose a landlord required as a condition of the lease that the tenants would be required once a month to allow the police into the premises with a drug sniffing dog. I suppose this would be legal as any potential tenants are free to look elsewhere for a place to live.

Now change the equation. Suppose a law is passed that requires all landlords in the jurisdiction to have such a clause in the lease, or gives them a tax break if they do. Sorry ---that's a sham.

If I pay Mr. X to kill or Mr. Y and he does so any argument I might make that you can't blame me because I wasn't the one who pulled the trigger will be rejected, and rightly so. When third parties are bribed and/or compelled to compile information that the government could only otherwise obtain by getting a warrant that's government action. Its sheer sophistry to suggest otherwise.

22 weeks ago
22 weeks ago Link To Comment
"Unless the relevant interaction was conducted under a contractual agreement not to disclose, the recipient is free to do with the information whatever he/she/it likes."

But today even a contractual agreement not to disclose will help you. This is unacceptable.

22 weeks ago
22 weeks ago Link To Comment
Brandeis also showed us how prescient he was in the Olmstead dissent with, "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."

It seems that with each gradual loss of our liberties over the years, America has slowly developed a large segment of the population that welcomes the dependency to government guidance and "security." However, the recent attempted power grab of the FCC into newsrooms has given me some slight hope. Even the statist leaning MSM was uncomfortable with the thought of government looking over their shoulders.

Then again, they could just be afraid of giving that control over when the GOP has a chance to be in charge soon.
22 weeks ago
22 weeks ago Link To Comment
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All Comments   (68)
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21 weeks ago
21 weeks ago Link To Comment
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22 weeks ago
22 weeks ago Link To Comment
my best friend’s aunt makes $73 an hour on the internet . She has been without work for nine months but last month her pay check was $18894 just working on the internet for a few hours.
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22 weeks ago
22 weeks ago Link To Comment
Color me unimpressed by this article.
Until such time as meaningful reform can be implemented...drone...drone...blah...blah
...WTF? Who you kidding? At this rate, right around the twelfth of never if you're lucky or when hell freezes if you're not. Meandering, overwrought articles work best for insomniacs but won't get the country anywhere fast.

I think that’s how our Founding Fathers would have wanted it.
Well, I think they would have turned to inalienable rights like self-defense and a virtuous belief in self-sufficiency, which work better, are more fun and lead to a strong digestion, a good complexion and -- dare we say it -- results.

The key to the right to privacy is the right to be let alone (if you prefer Brandeis) or the right to be left alone (if you prefer Larry Flynt). Once you've figured that, things fall into place rather easily -- homosexuality, abortion, religion, foreign policy, states' rights, lotsastuff.

Brandeis got there early, loudly and brilliantly well over a century ago. Maybe start with his and Warren's opinions, not with those of the unpleasant Flynt or of the author, who unaccountably omits all mention to this article: http://tinyurl.com/b3bo7a

Better written, clearer and smarter than the 'work product' of lawyers in the biz of reinventing the wheel. Brandeis, be it remembered, is a dead white man writing in 1890. Can't have that.
22 weeks ago
22 weeks ago Link To Comment
This is easily resolved, not by the courts but by legislation. The law would say "every citizen shall have a reasonable expectation of privacy in metadata relating to such citizen." The Republicans should be taking the lead on pro-privacy legislation. Maybe they are just not interested, however.
22 weeks ago
22 weeks ago Link To Comment
But the Executive branch that would do the enforcing is the most likely to do the breaching. Case in point - the DoJ under Eric Holder.

One would have to make it a tort enforcable in federal court against individuals in government doing the breaching. No hiding under the doctrine of immunity of office - "I was just following orders!"
22 weeks ago
22 weeks ago Link To Comment
Any relation to Leonard Peikoff?
22 weeks ago
22 weeks ago Link To Comment
Even the act of using technologies that obscure your internet / digital behavior are knowable to the gov, and useful to them to rationalize tormenting you.

It's hard to imagine this turning around.
22 weeks ago
22 weeks ago Link To Comment
I am told that I have no reasonable expectation of privacy when I am out and about publicly. If, as was argued in Roe v Wade, the right to privacy is constitutionally recognized, then I have EVERY expectation of privacy regardless of where I am. The government's first duty is the protection of its citizens' rights, not parsing them for loopholes.
22 weeks ago
22 weeks ago Link To Comment
The decision in Smith vs Maryland is wrong on the face of it. If the court relies on sophistry for its judgement then there is no meaningful precedent, law or constitution, as any ruling or judgement can be interpreted through the lens of such childish rhetorical tricks to be twisted beyond any reading that its authors intend or a reasonable person might make.

I am not American, so this does not apply to me, but my wife has a US SIM we used on a recent visit. The privacy she expects is not from T Mobile knowing her dealings, because her business is with T Mobile. She has a contract with them to provide that service. However she can reasonably expect that her dealings with T Mobile are private from other parties than T Mobile and the second party on the call or message.

Again this hardly applies to me as no-one is interested in my clients' affairs, but my wife has clients who have a measure of celebrity and therefore expect privacy. Of course they expect her to know their business, as she is party to that business. By the rationale of that inane ruling in Smith vs Maryland they could have no reasonable expectation that those business dealings remain private, simply because she is their agent in that business so has to know.

Does that not show how ridiculous the ruling is?

I have long though that the reason there is such authority in the court to determine and punish contempt of court is that British and American courts so often deserve such deep contempt.
22 weeks ago
22 weeks ago Link To Comment
I don't "worry about what statutory protection our government deigns to offer our private information." We now find out that a number of years ago, our government gave itself the power to redefine the Fourth Amendment, and now I worry far more about how it will cleverly circumvent the existing law, any future law, and any Constitutional language that clearly forbids what they are doing.

We now have a rogue government. Please tell me again that a convention of the States to consider amendments to the Constitution is still a greater danger to our liberties than the current trajectory of the federal government.


22 weeks ago
22 weeks ago Link To Comment
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