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Scientific and Technological Advancements and Changes in Privacy Protection Standards

-- By YoungLanYea - 06 Mar 2022

I. Introduction

The concept of the right to privacy first arose from the reckless infringement of personal matters following the development of science and technology. The rapid development of science and technology continuously affected the courts' privacy protection standards(1) to change. It is obvious that science, technology and privacy are closely related. Below, I will analyze how the development of science and technology has affected privacy protection standards, focusing on the Fourth Amendment case laws, and derive its implications.

II. Fourth Amendment Cases and Privacy Standards

1. Katz v. United States (2) - “reasonable expectation of privacy"

Katz is a historical precedent that overturned the Olmstead case,(3) that an infringement on tangible personal property would constitute a search under the Fourth Amendment. This change was an inevitable result of technology development and the court no longer could insist on its earlier finding that the Fourth Amendment was “limited to certain areas or to tangible objects." (4)

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. (5)

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.

2. Recent precedent trends since establishment of “reasonable expectation of privacy”

(1) Kyllo v. United States(6)

The majority opinion 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”(7) emphasizes this point. This was a predictable purposive Fourth Amendment interpretation when considering home as a place to protect from unlawful searches and seizures.(8)

(2) United States v. Jones(9)

Justice Scalia held that the reasonable expectation of privacy is not an exclusive criterion, but rather applies in parallel with the physical intrusion of tangible property criterion. This differs from the Harlan standard. In Jones, the court did not apply the test of the expectation of privacy but applied the trespassory test to determine whether the Fourth Amendment was violated. Justice Scalia did not consider the trespassory test to be excluding the expectation of privacy test, and applied the trespassory test to the case as a minimum level of protection.

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.

In reality, there is almost no space for reasonable expectation of privacy. The privacy infringement due to someone's intentional action or by digital environment itself is rapidly increasing. Our privacy exposure routes, such as the cloud, various social media, the Internet, smart devices, and CCTVs everywhere, are truly diverse and effective. You think you are wearing the clothes of privacy, but in fact, everyone's privacy is known to everyone. If this state continues, the reasonable expected space of privacy will soon disappear. And according to the test of the expectation of privacy, our privacy would no longer be protected. 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. 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. A lot of our information is already stored and managed in their clouds without us having to decide.

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.

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Notes

1 : 1: In this paper, ‘the privacy protection standard’ refers to the principle applied to the judgment of privacy infringement under the 4th Amendment.

2 : 2: Katz v. United States, 389 U.S. 347 (1967).

3 : 3: Olmstead v. United Sates, 277 U.S. 438 (1928).

4 : 4: Matthew Tokson, Knowledge and Fourth Amendment Privacy, 111 Nw. U. L. Rev. 139, 142 (2016).

5 : 5: 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).

6 : 6: Kyllo v. United States, 533 U.S. 27(2001).

7 : 7: Kyllo v. United States, 533 U.S. 27, 28, 121 S. Ct. 2038, 2040, 150 L. Ed. 2d 94 (2001).

8 : 8: Mark Mancini, The Need for Doctrine: Scalian Originalism and Canadian Purposivism, Advocates for the Rule of Law, Mar. 26, 2016, http://www.ruleoflaw.ca/the-need-for-doctrine-scalian-originalism-and-canadian-purposivism/.

9 : 9: United States v. Jones, 132 S. Ct. 945, 962 (2012).

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