Scientific and Technological Advancements and Changes in Privacy Protection Standards

-- By YoungLanYea - 06 Mar 2022

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.

When was "the development of science and technology"? Surely in prehistory, right? Science and technology were intrinsic to all human existence long before writing.

I revised in blue.

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.

But conflating searches and seizures in criminal investigation and prosecution with "the privacy protection standard" causes confusion here and throughout the draft. Constitutional civil liberties constrain state action. What the state may or may not do is axiomatically, or at least apparently axiomatically, differentiated from what parties may agree in their civil relations with one another to permit. Your decision to assume away this distinction results in reductions on both sides: we seem to have only the rights in our private relations that can withstand the compelling interests of the state in investigating and punishing crime, on the one hand, and those rights are somehow extensively restricted because the state supposedly acquires the power to do directly whatever we have otherwise permitted to anyone else in civil or familial life.

I revised in blue.

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.

All of this could be reduced to one paragraph, with citations to cases that could be links. Communicating this sort of idea concisely is what law review writing is good at, specializes in. Here you are using almost 400 words to do what could be swiftly accomplished in 150.

I revised as above.

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.

No, only to a small number of commercial harvesters of behavior, the world's "privacy invasion subcontractors," "the platforms," also knowm as the Parasite with the Mind of God.

I revised as above.

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.

The best route to improvement is to make clear what the failure to differentiate between state action and private accumulation of wealth and power obscures in this draft. How the state takes advantage of the privacy invasion subcontractors expands state power to some extent, but the power actually being amplified is that of the private intermediaries, whom you don't discuss as social actors, but only as technology components (such as "the cloud").

This is an excellent opportunity to improve the draft along the lines I have tried to describe: technology, politics and law as three indispensable legs on which our understanding sits. Not all science and technology but one technology pattern in particular is at stake here: the one in which simple services in the net are performed for the masses by intermediaries who collect thereby an immense flow of information on human behavior, at once immensely detailed and utterly comprehensive, uniting an intimate knowledge of each individual it awareness of the patterns of behavior across humankind. Organizing the technology in this way isn't "necessary"; the Net embracing humanity could work in many other, better ways.

Law that constrains government power interacts with this arrangement of the Net in complex ways. You are writing about one. It helps to make precise the relation between specific technology and law. If you do that here, it becomes evident why the 4th Amendment fails to address important 21st century questions. Because I spent weeks on that in class, the argument doesn't need any re-presentation. The politics put in the end the state and the platforms on the same side; they need one another too much to let the rights of people get in the way. Our ability to change this arrangement in favorem libertatis comes via two routes: we have the power as people individually and collectively to use technology differently, and we have — where we do have — constitutional civil liberties we can assert against government.

I revised as above.

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Notes

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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