Stephen Schulhofer on why privacy may still be alive:
- Privacy gets renewed prominence as a constitutional value
- The “nothing to hide” argument can be buried forever
- Legislative compromises are probably unacceptable
- Executive Branch safeguards fare even worse
- Warrantless section 702 surveillance of non-US persons abroad is now especially suspect
- The third party doctrine is badly shaken but still intact
Note especially the sixth point. You may remember from the Snowden files that the discussion about “metadata” turned in part on it being something the public knowingly concedes to thirds parties (ie telecoms) and that no individual warrants were required to obtain it.
This will be especially relevant to geolocational privacy and tracking (ie our locations, journeys and movements are potentially willingly given up to third parties, eg Google, which the government can then collect). Schulhofer notes the counterargument that it is “intensely personal” and thus subject to the Fourth Amendment (you may also remember the argument of “precise geolocational information”). But he warns:
At bottom, Riley shows the Court’s full appreciation of the threat posed by unrestricted government access to digital files, and this may ultimately prove to be its most important legacy. But the logic of the third-party doctrine still will have to be tackled head-on in situations where police get information directly from an intermediary like an internet service provider or a cloud computing service.
We need more of this kind of analysis from geographers–why aren’t we taking part in these legal debates? Surely we have something to say about geolocational privacy and surveillance.