How Privacy Became Illegal

Legislation requiring a stronger showing of cause and particularized suspicion for the installation of pen registers, and prohibiting the bulk collection of both communications metadata and financial transactional data, would be a great first step toward reclaiming the privacy protection we deserve. Ultimately, however, the proper legal protection of privacy will depend on the Supreme Court overturning the third-party doctrine and, even better, the “reasonable expectation of privacy” test on which it rests. (As I’ve argued elsewhere, the proper legal protection of privacy depends, ironically, on abandoning the “right” to privacy and returning to the protection of privacy via our rights to property and contract.) While Justice Sotomayor is apparently skeptical about the prospects for modifying or overturning the third-party doctrine, many of us took her concurrence in United States v. Jones as an indication that the Court might be ready to do so.

Until such time as meaningful reform can be implemented, our best hope for the legal enjoyment of privacy are technologies—some already available, some still in development—that allow us to browse the Internet anonymously or encrypt our digital communications. These technologies make privacy legal by minimizing the information we share with “third parties.” They make it so that, if government agents want information about your email or your Internet browsing habits, they will have to do the virtual equivalent of knocking on your front door (rather than, to continue the analogy, trying to get your landlord, who may have only a skeleton key, to let them in). Assuming it is technologically feasible, I see no reason why it shouldn’t be legal for us to have the equivalent of our own home, complete with a key to which only we have access, on the Internet. I think that’s how our Founding Fathers would have wanted it.