Computers, Privacy & the Constitution

Scientific and Technological Advancements and Changes in Privacy Protection Standards

-- By YoungLanYea - 06 Mar 2022 (second draft)

I. Introduction

The word ‘privacy’ is said to be derived from the Latin word ‘privatue’, which means “avoiding human eyes”. According to the online etymology dictionary, it was used in 1590 to mean ‘a private matter’ and in 1814 to mean ‘state of freedom from intrusion’. Considering the publication of Warren and Brandeis' paper in 1890, which sparked a legal debate about privacy and is commonly referred to as the beginning of the right to privacy, it is clear that the concept of privacy has been with humanity for quite some time, long before it was even discussed in academia. What does this mean? It is conceivable that people, past and present, have a desire to keep their private spheres secret. In other words, it is very natural for the universal personality of human beings to keep the secret of an individual's private sphere.

The right to informational self-determination is not an absolute right as it can be restricted under certain circumstances. Restrictions may occur mainly in relation to the exercise of state power for national defense, police, investigation, trial, taxation, welfare, etc. However, such restrictions must follow the general principles of restriction of fundamental rights. And the standard of “compelling state interest” should not be usurped by private intermediaries empowered by the state power wielders to continue their privacy invasion under the name of technological development.

II. Fourth Amendment Cases and Privacy Standards

Katz is a historical precedent that overturned the Olmstead case,(1) that an infringement on tangible personal property would constitute a search under the Fourth Amendment. Justice Harlan's concurrence opinion became the new privacy standard, the so-called “reasonable expectation of privacy” standard. First, an individual must subjectively expect a space of privacy, and second, society must recognize that expectation as reasonable. A “just trust in privacy” must be ensured through the history, language and context of the Fourth Amendment. (2) This can be criticized for being unstable because what is ‘reasonable’ can change over time. As personal information gets more exposed with digitization, the expectation level of privacy protection may be lowered. However, the Harlan standard remains the dominant standard for privacy protection. And this was revitalized in Kyllo v. United States. The majority opinion here cautions us that technological advances should not undermine the right to privacy. If privacy is threatened due to technological development, the existing privacy protection standards should not be applied mechanically, but should be dealt with through reinterpretation. The statement “to extend the holding of Katz to this case would leave the homeowner at the mercy of advancing technology”(3) emphasizes this point.

III. Conclusion and Implications

For the past 40 years, the reasonable expectation of privacy standard has been applied as a criterion for judging the violation of the Fourth Amendment. Although the expectation of privacy test was able to accommodate various technological changes, it is necessary to examine whether it is still a sustainable rational standard despite the huge change in the privacy environment like today.

These days, there is almost no space for reasonable expectation of privacy. Since the platforms literally corresponds to a station for information, if security on the platform is not achieved, information security for all of the accumulated information cannot be achieved. And once the risk of accumulated information becoming a tool for state surveillance gets exposed, the privacy infringement becomes no longer an issue that is solely in the private realm but a state action of which its constitutionality should be questioned. This is the reason why a new standard of judgment is needed.

Moreover, the trend of declining rational expectation of privacy is cleverly designed and implemented by the power house of information. Therefore, there will be no reversal of the current trend of decreasing privacy. Power house of information here refers to large multinational IT companies that possess and manage huge amounts of information, encouraged by the state to continue doing so. Information power will continue to lower the hurdle of ‘reasonable expectation of privacy’ as it is these IT companies’ interest to keep their business prosperous by preventing any blockage of information flow and also meets the state’s interest of surveillance.

It should be recognized today that clandestine privacy breaches can become an instrument of oppression and dictatorship by the information powers. Cloud, social media, and other web browsing are all concentrating our information on a handful of conglomerates. They collect information globally and it is difficult to predict what kind of power they will have and how they will be used. By them, our privacy will continue to be exposed whether we like it or not. In view of these changes, a new privacy protection standard is called for. As science and technology continue to develop, the privacy protection standards will likely evolve as the struggle to prevent the destruction of the sacred realm of privacy by the courts will persist.

In order to determine whether the restrictions on the right to informational self-determination due to private intermediaries providing their platforms to assist state surveillance are constitutional, the justification of such clandestine surveillance system must be thoroughly investigated. For this, it is necessary to elucidate whether the legitimacy of the ostensibly claimed state function is genuine. Next, it should be strictly verified whether the person operating the monitoring system has a legitimate purpose and authority, exceeds the required range, and is operated according to a legitimate procedure. The right to informational self-determination is the absolute minimum constitutional guarantee device that is necessary to prevent the possibility of damage to the dignity of an existential personality and the foundation of a free and democratic system in the information society. In addition, it must be established as one of the most essential fundamental rights in the information society. And we should all participate to bolster and protect such a fundamental right by knowing and choosing the right ways of providing our information.

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1 : Olmstead v. United Sates, 277 U.S. 438 (1928).

2 : Richard Sobel, Barry Horwitz, Gerald Jenkins, The Fourth Amendment Beyond Katz, Kyllo and Jones: Reinstating Justifiable Reliance As a More Secure Constitutional Standard For Privacy, 22 B.U. Pub. Int. L.J. 1, 6 (2013).

3 : Kyllo v. United States, 533 U.S. 27, 28, 121 S. Ct. 2038, 2040, 150 L. Ed. 2d 94 (2001).


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r4 - 02 May 2022 - 19:24:02 - YoungLanYea
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