Privacy and Technology

Your privacy - are you worried about? If not you should be. In this age of technological marvels not only should you be worried about your government, but also worried about commercial entities that want to know everything about you so they can ensure you are a satisfied customer so they can sell you more. Could the framers of the Constitution have envisioned the assault on our basic individual rights that the future would bring? Read Robert Freer’s thoughts on this subject and the challenges facing today’s Supreme Court.

by Robert E. Freer, Jr., President of The Free Enterprise Foundation

"The right to be left alone -- the most comprehensive of rights, and the right most valued by a free people."

      - Justice Louis Brandeis, Olmstead v. U.S. (1928).

So simply stated, so utterly correct! With this succinct description of our rights, Justice Brandeis in a losing cause dissented in the very first federal wiretapping case. The case involved Federal wiretapping to bring to justice a substantial criminal enterprise to distribute alcohol in violation of the Volstead Act. The Supreme Court in this case found the wiretap legal even in the face of an existing state law that would have found the eavesdropping illegal under its law.

Needless to say that is not the law today, but considering our contemporary tendency to discover a new right every day, our citizenry would be amazed to the point of disbelief that it could ever have been found otherwise. Olmstead is worth studying, however, not only for its shock value and its outstanding dissent on the essence of our civil rights, but for it representation of the era in which it was decided.

Chief Justice Roberts, in his recent appearance before a large audience assembled by Charleston’s stellar new law school responded to the question of what he found most challenging in the cases coming to the Court today. His thoughtful response was that the progression of technology really was at the heart of what most challenged the Court in applying our Constitution to the period in which we live. Similarly it can be said of the Olmstead Court that it too was struggling with applying an 18th century document to 20th Century society transformed by electricity, a transcontinental railroad, automobiles, airplanes, the radio and telephones.

Today the Court is even more challenged by our era of technology transformation and our knowledge based economy. How do you protect individual rights from government intrusion in an era of pinhead size cameras and microphones, fiber optics, wireless technology, machines the size of molecules, earth-and building- reading technologies?

What do you do to protect privacy in an era with technology that makes the walls no more than veils to what occurs within, and of course, what do you do for privacy in our age of digital dependence in which our cell phones and automobiles pinpoint us to a spot on the globe? Virtually all that we do is reduced to instantly searchable data that includes even the keystrokes on our computers and PDAs.

In Olmstead, the Court was dealing with a medium, telephones, that it reasoned could be avoided and thus was not inherently protectable under the fourth amendment. What do you do today when notions of privacy have been constitutionally extended to an extent never before considered? This right of privacy goes beyond the fourth amendment’s protection of government snooping to implicate the vast amount of personal information in the hands not of government but of commercial interests as well.

Government is not the greatest problem. Commercial interests intent on having the masses of data on each of us fractioned so precisely that if I accidentally open an email from a company offering me a cruise vacation, tomorrow I will receive 50 such emails and the next day 100 more is far more threatening as it is not as limited under current readings of our Constitution to stop its invasion.

It is a regrettable truth that just as no good deed goes unpunished, there is no such thing as an unmixed blessing. It is the agony of our age to struggle to fit our thirst for “progress” within our historic desire to be left alone. In a society under assault from both within and without, Chief Justice Roberts has put his finger precisely on the issue that resonates with Americans the most.

We have an implacable thirst for personal liberty and feel like we are losing the essential quality of being American. Pandora in the form of the cornucopia of ever changing, ever developing new generations of technical wonders threatens to make itself the master and us the servant. Our senses are overcome with data, most designed to sell us something, be it ever so simple as an attitude. If we rebel against this manipulation, we are massaged to feel “un-American” “unenlightened” or just downright Neolithic. Ooops, as we know from the Geico advertisements, we better be careful there too.

There is a phenomenon we perform with our pets in which we endow them with our feelings, engage in conversations and feel certain that they exactly mirror our world view. Our intellectual elite are guilty of that on a worldwide scale, and woe to anyone who disagrees.

With our pets it is largely harmless and may be even therapeutic. With the world at large it is downright dangerous. We engage with our enemies as if their minds must work as ours, their desires and their hearts mirror ours. They must want what we want, mustn’t they? And there must be someplace where we can find agreement? Right?...... Wrong!

This assumption is flat out incorrect and leaves us open to heartache and worse, defeat! For some forces in the world there is nothing for us to do but battle to defeat or victory. Even with our fellow citizens it presumes too much and that brings me back to the Chief Justice’s conundrum. How do we protect our liberty in the digital age?

We are juggling the “good” that endows our society with so many of its marvels and blessings against its cost in privacy. We are juggling security of one kind with the fear and reality that unless technology is carefully checked, there is no place to be truly alone.

Our privacy is an illusion. Into this realm comes the Supreme Court asked in cases before it or in the pipeline to apply The Constitution in a way to carve out our zone of being left alone. The Court and Congress together can make the difference here to preserve the best of our technological sophistication with those unique qualities of our civilization. That we must do so in wartime adds to the stress, but nevertheless, we must count on them to do their best. Pray for them and our Republic that they get it right.

Copyright © 2007 by Robert E. Freer, Jr. All rights reserved

About the author: Robert E. Freer, Jr. is President of The Free Enterprise Foundation. He is a Visiting Professor, at The Citadel and elected in 2005 to be their first John S. Grinalds Leader in Residence. A regular contributor to the Mercury, He can be reached by E-mail at The Citadel . Copies of his earlier columns can be found The Free Enterprise Foundation.

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