Protecting the Digital Body
With the proliferation of surveillance technology, Americans’ expectation of privacy seems hardly “expected” at present. It’s time to reinvent how this concept is defined in the law and how we think about Fourth Amendment protections. Legal scholar Christopher Slobogin agrees, as he points out in his chapter Is The Fourth Amendment Relevant in the Technological Age?, writing that “…the government should have to justify privacy-invading virtual searches even though no physical confrontation is involved”. Slobogin goes on to assert that we should focus on redefining the word “search”, as used in the Fourth Amendment, to its colloquial definition of “…looking into, over, or through something in order to find somebody or something.”
I think this is where he makes a mistake. Slogobin’s focus on the term “search” is an attempt to redefine the act of searching, which is inherently tied to the surveillance capability initiating it. When we think of current surveillance systems such as cameras and listening devices, we do not account for future evolutions in what surveillance might look like. To alter the definition of “search” is to simply stretch it to our current landscape of surveillance technology and its practices.
Today, 97% of Americans own a cell phone. It is likely an assumed utility of your everyday life. For example, as you move throughout your day, you are leaving digital footprints every time you pick up your device. Your location data, call logs, internet connections, and more are all being willingly shared with a variety of companies and organizations. Currently in the law, this is usually viewed as a voluntary release of information because you consent when you use these capabilities.
In terms of Justice Harlan’s concurrence in United States v. Katz, you likely do not have an “…actual (subjective) expectation of privacy.” So when Slogobin attempts to account for modern technology by altering the definition of “search”, he overshoots the more fundamental piece; an alleged intrusion would likely not be considered a search if there was no reasonable expectation of privacy. Given the rapidly changing state of surveillance technology, we ought to not fixate on the nuances of the term “search” and instead assume perfect surveillance.
For example, an article in Bloomberg Businessweek points out the Baltimore Police Departments use of persistent and warrantless aerial surveillance to identify criminals or potential hotspots for crime. This is an example of where law enforcement is moving: proactive and technologically sophisticated surveillance at all times. We already have the technology to track every person’s movement and behavior.
Thinking back to United States v. Katz, so much emphasis was placed on whether a phone booth (a specific and unique piece of technology) was to be considered private or public. Fixating on how to align privacy with specific technologies was a theme in Smith v. Maryland, where the public-private debate was on trial for a particular technology called a pen register. Contorting privacy around capability sets like this is a losing game in a modern world of perfect surveillance capabilities.
Instead, the law ought to focus on developing the expectation of privacy as a concept of property rights over the body. The core premise is that if we can define the rights of the body, and the body represents the paragon of privacy, then we can come to a thorough definition of privacy that is flexible and technology agnostic. The legal treatment of the body as property has a longstanding history in bioethics, where genetic material and other biospecimens have had their ownership debated as personal property. Assuming these biospecimens are property of the person that they are extracted from, could personal data created through using technology and participating in a technology-driven society also be considered an extension of the body? Data represents raw material that is created as a part of human movements in space and time, perhaps just as fundamental to our identities as organic biospecimens.
The expectation of privacy ought to extend to the digital footprints we leave no matter the time or place they occur. Our identities in online and physical worlds are so fused together than an understanding of privacy expectations must take both into account. As the court’s opinion framed it in United States v. Katz, “the Fourth Amendment protects people, not places.” If this is the case, then the protections for individuals ought to consider a thorough understanding of what comprises identity. Though Slogobin’s concerns around Fourth Amendment protections in a surveillance era are valid, his proposed solutions may not fully ameliorate the overextension of the government. The expectation of privacy slowly erodes as technological advancements become normalized. In the same way people have come to accept sharing their lives through social media, or agreeing to Terms of Service for tracking apps, any future surveillance tools employed by the government will gradually become standard. To maintain an expectation of privacy, that expectation must be rooted in autonomy over the body and identity, which are more steadfast anchor points than the rapidly evolving world of surveillance technology.