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Should We Lower Our Expectations of Privacy in the Digital Age?

This is posted on behalf of our 2019 Fall Privacy intern, Irene Lee.

Girard Kelly | October 8, 2019

As we continue on this journey through the Digital Age, it is clear that our expectations of what should be private and what should be accessible have changed over the years. The onslaught of proposed legislation in states all across the country, from the California Consumer Privacy Act to Illinois’s Biometric Information Privacy Act, indicate not only our fears of losing our right to privacy, but also that our expectations of what should be private are lower than ever before. This post documents how our expectations of privacy have decreased over the course of the past century through three aspects: homes, financial records, and the human body. 

Throughout the course of human history, the term “privacy” has been associated with the words “secrecy,” “autonomy,” or “liberty.” However, as early as the 1890s, philosophers began diving deeper into what privacy really means. They eventually expanded the existing definition of privacy to include both secrecy and autonomy. These two ideals represent the idea that people should be able to not only keep information private, but also to choose what information they wish to keep private. Over the years, these concepts became embodied in the American legal system, slowly seeping into the canons of fundamental human liberties. 

Step One: Our Homes

Initially, Americans thought of privacy as a concern for the home. To echo United States Supreme Court Justice Antonin Scalia, “In the home, all details are intimate details”. Philosophers described the concept of privacy as adversarial in nature - private versus public, inside versus outside. Physical privacy became a concern  in the newly-formed country, particularly because many of the people who populated the new United States were fleeing oppression and violations of their privacy elsewhere. A body of law began to form, allowing one’s home to become an important part of individual privacy, the “castle” to be protected as a centerpiece of privacy.

The key to privacy based on the home is secrecy, locking the doors so that everything within cannot be exposed to the outside world. However, there was an expectation that what occurred within the home could not physically be exposed to the public, and therefore, there was no need to worry about information unless it was voluntarily physically disseminated. The boundary that separates what occurs inside the home versus in public preoccupied legal scholars and politicians. As a result, the home became the centerpiece of modern Fourth Amendment jurisprudence and privacy law.  

Step Two: Our Financial Records

The third party doctrine is the idea that information that is voluntarily disclosed to a third party is no longer subject to a reasonable expectation of privacy.  The key word here is “voluntary.”  According to the United States Supreme Court in the landmark 1979 case Smith v. Maryland, consumers know that there are certain services that require specific personal information. To continue using these services, consumers must “voluntarily” convey that information. Thus, there can be no logical expectation that these companies will keep their information secret. As more and more personal information was required to access different services, such as bank accounts and telephone services, society began to lower its expectation that such information would remain private. However, we shouldn’t assume that just because information is held in a digital form that all hope is lost for it staying private. For example, in Carpenter v.s U.S., the U.S. Supreme Court decided that a warrant is required if the government wants to look at an individual’s mobile phone history of it geolocation. They decided that yes, looking at someone’s cell phone history is a Fourth Amendment search and that a judge would have to issue a warrant based on probable cause before getting access to that data.

Step Three: The Human Body

In the past decade, Americans have shifted their focus on privacy from the external to the internal, focusing on the average person’s biometrics and personality traits as new forms of data.   Many filmmakers and artists have encapsulated this shift. With new television shows, such as Black Mirror and The Handmaid’s Tale exploring alternate universes with the barest privacy standards, Americans are diving deeper into privacy unlike ever before.  

Dystopian depictions of the future fuel further investigations into our own reality, causing some individuals to wonder where our privacy is truly headed. From using fingerprints to identifying students in the cafeteria line to implanting devices inside the bodies of company employees, technology is growing ever more biological.  While Americans desire more privacy, they do not expect to maintain it. In fact, approximately 84 percent of Americans recently surveyed believe that they have lost control over how their personal information is being used by companies.  Rather, they are weary, knowing that they will have to fight to maintain the privacy of things that were once private. Since Edward Snowden first blew the whistle on the NSA back in 2013 and Cambridge Analytica used Facebook data to influence voters in 2016, the public’s trust has dramatically waned.   

Bringing Privacy Back

Even though the American population does not have high expectations regarding data privacy, it has fought to ensure that existing rights are available, bringing data privacy back to the forefront of politics. Consumers are now more aware of privacy-related problems and are taking actions to secure the privacy of themselves and their loved ones. To learn more about data privacy and how companies use your data, check out Common Sense’s privacy program.