The Constitutional Right of Privacy in the Internet Society: Curtailing Government and Private Intrusion Through Regulation of Data Brokers

The Constitutional Right of Privacy in the Internet Society: Curtailing Government and Private Intrusion Through Regulation of Data Brokers

[Note: I wrote this piece back in 2006, but it seems just as timely given all the privacy issues with Facebook and other social networking sites, among others.]

“Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society.”

Technological advancements have always impacted how we live. It’s been true of every major “revolution” in our history -- from the industrial to the digital, and will continue to be so. As Americans, we embrace such progress. Indeed, spurring such progress in the sciences and useful arts is a value embedded in our Constitution. Other values, of course, are also embedded in our Constitution, values that in large measure define who we are -- especially with respect to our relationship with our agents of government (e.g., the Bill of Rights). Some of these explicit culture-defining values include the freedom of speech, the right of due process of law and equal protection of the laws. Still other values, just as important to the collective American identity, yet unenumerated in the landmark document, have long been recognized. Perhaps the most important of these rights, often referred to as penumbral rights, is the definition-eluding right of privacy. From one perspective, it is the coexistence of the pursuit of technological progress as a cultural value (which has led to remarkable capabilities in information and communication technologies and the attendant economic benefits and pitfalls) and the desire of the citizens to live autonomous lives free from unwarranted governmental intrusion (the realm of the penumbral right of privacy) that has led to much tension in outlining the contours of citizens’ privacy rights in the Internet Society. Here I attempt to briefly synthesize the U.S. Supreme Court’s jurisprudence in the privacy arena and how such doctrine should evolve in the Information Age, given the reality of our surveillance society.

The Right of Privacy: From Griswold to Lawrence

The right of privacy, as a constitutional right, was expounded in Griswold v. Connecticut. Griswold involved a challenge to a Connecticut statute barring physicians from giving instruction or means of contraception to married persons. The real question, as the Court articulated it, was whether states could abridge individual citizens’ rights deemed fundamental, although not specified in the federal constitution, but understood to be derived from the explicit guarantees in the constitution. The Court found the statute unconstitutional. Justice Douglas, writing for the majority, noted that “specific guarantees in the Bill or Rights have penumbras, formed by emanations from those guarantees that help give them life and substance ... [and those] various guarantees create zones of privacy.” In a concurring opinion, Justice Goldberg, quoting from Powell v. Alabama , reiterated that “[t]he inquiry is whether a right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions ...” (internal quotations omitted).

Since Griswold the Court has continued to recognize the right of privacy in what might be deemed “decisional” or “physical space-specific” contexts (e.g., Roe v. Wade , Whalen v. Roe , Planned Parenthood v. Casey , Chandler v. Miller , and Lawrence v. Texas , which overruled the only case in the Griswold progeny to significantly deviate from the “right of privacy doctrine,” Bowers v. Hardwick ). What it has not done, however, is provide a workable framework for protecting citizens from what has been referred to as “intangible invasions” in the Internet Society – that is, freedom extending beyond spatial bounds.

So, Does Freedom Extend Beyond Spatial Bounds: What to Make of Intangible Invasions Where Private Affairs Are Exploited by Others?

It is worth noting, as Justice Black did in his dissent in Griswold, that the notion of a “right to privacy” was first developed in a law review article co-authored by Louis D. Brandeis as a means of providing a basis of “tort relief to persons whose private affairs were exploited by others.” The powerful idea expressed in this inconspicuous footnote embodies the progressive value that must be embraced if we are to curtail the intrusions made possible by the merger of data aggregators, analysts and government.

Recall Justice Stewart’s memorable assertion in Katz v. United States, “For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (emphasis added). In Katz, federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted under an eight-count indictment for the illegal transmission of wagering information from Los Angeles to Boston and Miami. The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play.

A thorough reading of the Griswold line of cases, and Katz, reveals that it is the intent of the person subject to a privacy intrusion that matters most – not the interests of the government or private data brokers. The question then becomes whether Americans are “knowingly” exposing profiling data to the public (including government) when engaging in arms length transactions with private sector entities, or “seeking to preserve” such information as private and only disclosed to the party in privity. When viewed through the lens of privacy, “knowingly” has to be construed to mean actual, not merely constructive, knowledge. And in the Internet society, actual knowledge must go beyond inconspicuous and largely unread privacy policies written in legal jargon. Moreover, “seeking to preserve” should be the rebuttable presumption afforded citizens, undermined only by acquiescence to a clear and conspicuous policy to the contrary.

In the words of Professor Tribe, “[s]cience and technology open options ... [t]hey do not alter what is right or what is wrong ... The Constitution’s norms, at their deepest level, must be invariant under merely technological transformations.”

The Paucity of Critical Thinkers

I wish I had spent a lot more time studying history (anthropological history to be exact). If I had, then maybe – just maybe – I could better understand whether my generation’s inability to, or disinclination for, engaging in critical thought is an historical aberration, par for the course or something in between. I just don’t know.

When I read American history I get the sense that the public (or at least the propertied class) in the 17^th and 18^th centuries had a much deeper understanding of their world -- politically, economically and culturally. They somehow seemed smarter, cognitively more developed than us. For example, the Federalist Papers (generally rich, provocative and well-reasoned essays) were published in the newspapers and pamphlets and widely read. They actually swayed public opinion on grave issues through serious intellectual engagement. I can't imagine that happening in this generation.  Now, regrettably, it’s mostly oft-repeated sound bites and pundit hooks that pass as evidence of time spent critically thinking about anything, but especially in our political, economic and culture discourse. And here I’m not referring to the “unlearned” classes. Among today’s professional class (save, perhaps, the academics), hundreds of whom I know personally, the percentage of folks who engage intellectually critically in the times’ most important issues is inconsiderable.

The early citizens of the nation also seemed to have a greater appreciation for their collective well being, which is not surprising given how the nation was spawned and the real threats posed by its youth and inexperience as a new nation. So in this sense, maybe people then were more engaged because they discerned a more vested interest in doing so than perhaps is the general contemporary conviction? I wonder.

I have spent the last decade and a half deeply interwoven among the “learned” class (at least they are on paper) and while my experience is anecdotal, I hardly suspect that it is an anomaly. The question I yearn to understand is “why?”

Some Preliminary Thoughts

While I have not examined this issue at great length, I suspect in part it has to do with at least two key phenomena. First, the gradual development of part of our collective (and false) identity as a nation of free-marketers, putatively based on Adam Smith-derived economic principles, has led to mass avariciousness and steadily increasing overconsumption. Second, we have subtly transformed from knowledge producers into information receivers. Both of these factors, combined with others not addressed here, I believe have served as disincentives to engaging in critical thinking for many. Let me explain.

The American Identity

Adam Smith is revered in America, and rightly so. In large part, however, we have misunderstood Smith. Conventional American wisdom recognizes Smith as the father of modern economics, and by extension, American capitalism. To be sure, Smith investigated important concepts in what we now call economic theory and was an advocate for “genuine” free-market principles (not the state-sponsored private profit centers that dominate our economy and masquerade as captains of capitalism)[1]. However, his greatest work and ideas, which are in the area of moral philosophy, predated and buttressed his populist-oriented free market advocacy, as expressed in both The Theory of Moral Sentiments and An Inquiry into The Nature and Causes of the Wealth of Nations.

Because the American psyche has conflated and confused Smith’s concept of  “the invisible hand” (which, tellingly, first appeared in The Theory of Moral Sentiments as opposed to The Wealth of Nations) with a narrower concept included therein – serving one’s own best interest – we have ultimately missed his greater philosophical point.

Succinctly, Smith argued that (1) all humans seek self-gratification; (2) the optimal way to obtain such gratification is through exchange with other humans; (3) the product of such exchanges accrue to the betterment of all; and (4) because of the utility of these exchanges, systems (including government) should promote such exchanges (i.e., free trade).

The key to really understanding Smith’s argument, at least as I see it, is to understand that point (2) above is not limited to the exchange of goods and services, as is commonly misunderstood, but rather encompasses ALL exchanges (e.g., gifts, favors, sympathy, etc.). One of the consequences of not appreciating the breadth and depth of point (2) has been the gradual formation of a national political and economic worldview wherein the attainment of material goods and money through the pursuit of one’s self-interest is justified by the putative sanction of Smith’s doctrine. Given this backdrop, it becomes easy to see how this worldview (combined with, and fostered by, other flawed notions of capitalism that I won’t address here) leads to avariciousness, overconsumption and, by extension, inadequate compassion for the well being of others.

Knowledge Production vs. Information Receipt

My thinking on this topic is even more underdeveloped than that of the preceding.

In summary, my sense is that the earliest American generations were much more actively engaged in trying to understand the world around them and their place in it than the last few generations have been. My hypothesis is that, in large part, this is due to a combination of technological advancements and the perceived station of the U.S. as the preeminent geopolitical power. Prior to the advent of what is now commonplace telecommunications media (i.e., TV, radio, Internet, etc.), people spent a lot more time reading, writing, studying the human condition and examining nature (e.g., consider the early American influence on the natural and social sciences in juxtaposition to the more recent significant contributions from foreign leaders of field (and the corresponding lack thereof from contemporary Americans)). In other words, they lived a life of the mind much more so than is common today. It appears that to a substantial degree the American masses reached a psychological tipping point that has descended from a focus on (a) knowledge pursuit and production to (b) enjoying the fruits of past generations’ intellectual labor and the fortuitousness of our birth timings through consumption of goods, services and information, irrespective of the quality of such information.

Perhaps this is the human cycle. I just wish I had spent a lot more time studying history.

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[1] Here I am not referring to the recent bailouts and stimulus plans, but rather the nation’s long, tacit history of public spending on major research and development initiatives, primarily funded through the federal budget (e.g., the Internet was developed through federal monies provided to institutions like MIT and Carnegie Mellon and later privatized; many pharmaceutical products are the result of research insights gained in public university labs through hundreds of billions of dollars in NIH and other federal grants; much of aerospace and automotive development was sponsored by the Department of Defense and later privatized, and so on and so on).

Expectation and the Human Psyche

Warning: This is pure (kind of) stream of consciousness. At this point I have no intention to edit. Read at your own peril.

I've recently come to realize the power of expectation on the human psyche. It's quite an interesting phenomenon. Let me try to provide some context.

I'd been feeling really, really crappy lately, to the point of foregoing the exercise of sound judgment in important life situations. The onset of such morose isn't so easily identifiable for me, but I do know that it came to a climax shortly after the death of an innocent loved one, a precious child. Other things had happened, family issues, an affair of the heart (or perhaps ego), etc. But I've seen a lot of dark days in my life and the latter examples just mentioned have sort of been par for the course, so no big deal in the grand scheme of things. But the death of the child was heavy.

I questioned many things in life that I would not normally wonder about, at least not in any sustained, serious manner. Yet somehow all the things (and to a certain extent the people) I valued seemed to be less important than figuring out what I wasn't sure I could ever figure out -- the "why" of it all. Something akin to Solomon's Ecclesiastes musings or Albert Camus' quasi-existentialism generally, I suppose. It's difficult to articulate the emotion, but suffice it to say I was far removed from my normally skeptically-optimistic-reasonably-happy self. I was sad -- really sad. To be sure, I've been sad before, but somehow this was different. I know the psycho-therapist among you hear "sad" and think "depressed." While I can't be sure precisely what the difference between the two might be, I do believe there is a difference; I was sad, not depressed. I know me well.

I recently had dinner with an old colleague and her spouse and the conversation turned to a newly found interest of theirs -- Buddhism. These are two very, very smart, well-educated thoughtful people. For that reason, I listened to what they said carefully, although I'd be remiss not to mention that at first blush, of such philosophy I would not normally avail myself. I asked them to identify the core tenets of Buddhism. The gist of what I took from their responses is that all things in life are interconnected. On some level I believe that's true, although I suspect it's from a different vantage point than my friends believe. More importantly, the conversation we had is germane to the topic of this writing. That is, expectation. In that simple example of my broader point, I expected to learn something of value from what these thoughtful people are so passionate about, and in no small way because of that expectation I did. And I felt good about it. For the avoidance of any doubt, I'm not suggesting that I embraced the philosophical underpinnings of what they posited, but I am suggesting that the expectation of something positive to come from the exchange impacted my receptivity and emotional state.

More to my general point. I believe people yearn, really yearn, meaningful relationships. I know it sounds simplistic, but I never appreciated the magnitude of what that really means until very recently. In my case, it is such a strong yearning that I adamantly eschew fake relationships, surface relationships. But the expectation of a solid, mutually-respectful relationship can change one's outlook on just about anything. Expectation is exciting. Expectation makes you want to do the "right thing." It makes you more thoughtful, more considerate. The funny thing is that it doesn't even have to be a rational expectation. It could be building something up in your own mind! I know it almost sounds delusional; perhaps it is. All the same, it's incredibly powerful! I'm thankful for it. Questions remain, thoughts abound, as does the looming threat of sadness, as they always will, I suspect. But the expectation of something or someone good is an awfully soothing antidote.

Maybe one day I'll catch up on my Freud and Skinner readings and learn that my new insight is mere 101. Nonetheless, it's been good for me -- so I guess I'm back.

Brookism #3 - Courage

"Cowardice is unbecoming anyone daring a contribution ..."

Brooksism #2 - Purpose

"Why is always more important than what ..."

Brooksism #1 - Identity

"The most expensive thing in the world is a lack of identity ..."

Weltschmerz

Life can often seem overwhelming. There's always "bad" news, always deeply troubled souls to pass on the streets, always something more that could be done to ease someone's pain (or so I want to believe). For anyone who loves people and is even remotely aware of only some atrocities being committed the world over - the utter stunting of human development and destruction of human productive capacity - notions of goodness and justice indeed have a quixotic, if not foolish, ring to them. In trying to make sense of it all and to understand and embrace a philosophy of life consistent with a belief in the equitable humanity and innate productive capacity of all, I find my understanding wanting -- greatly.

I suspect others share in these sentiments to some degree or another. I guess that's why religious fatalism works for so many. Perhaps it's why many are so unmoved by the selfish orientation of our nation, our culture and institutions, our "values" and "principles."

Or perhaps my premises are wrong. Maybe the idea of an equitable humanity is naive. What evidence is there for such a notion, other than what I've come to understand as a Judeo-Christian interpretation of God's law? If this is so, many, many other questions abound.

Seeing people suffer pains me beyond words I'm currently able to express. Racism, in all of its varied manifestations, no doubt plays a major, if not most central, role, directly or indirectly in why so many lives never approach anything close to full productive capacity. Yet, racism, I'm starting to believe, is really but a symptom of a much deeper and more powerful human malady -- selfishness. For such, I know of no ready cure.

Law, Politics & Information Technologies: What Does it Mean for Social and Economic Progress?

It has been advanced that the relationship between law, politics and technology is inextricably intertwined. Moreover, it has been suggested that appreciating the complexity of this relationship is paramount to an accurate understanding of what lies ahead on the social, political and economic horizons. It has been further intimated that advancements in technology and the growth of the social network commonly referred to as the Internet will inevitably lead to a fundamental shift in the populace’s orientation to and involvement in the political process, with significant long-term economic and social consequences. The thrust of the argument, as I understand it, is that given the communal spirit of the Internet (as evidenced through the free software movement, peer-to-peer file sharing, etc.), coupled with access to information unparalleled in history, we are on the cusp of a transformation ultimately leading to a more democratic society – or at a minimum, we could be.

The argument seems first to presuppose, at least in part, that lack of strong community and access to information are significant factors in explaining the economic, political and social status for many in America. Fair enough. It is the second presupposition that gives me considerable pause. That is, the factors giving rise to the absence of strong community and information access (and effective information utilization) can be sufficiently altered or eviscerated, ostensibly somehow in relation to the technological advances we are experiencing. It is this tacit assumption that I want to flesh out and examine, as I am not persuaded that the ideals of democracy so envisioned can ever be fully manifested without this assumption proving true, especially for most marginalized of our society. To paraphrase Dr. King, if freedom is not achieved for some, then it is never really achieved for all.

In attempting to address this question, let me first advance what some might consider a controversial view: Politics is essentially about which groups get what, when they get what they get and through which means they get it. “We the people,” at least when contemplated as the source of power under our republican system to determine the answers to the “who, what, when and how” questions, is an illusory proposition - a political-legal fiction of sorts. More accurately, our country is one where the “will” of the people is but the cryptic desires of the economically and politically influential – those shrewd enough to delude the masses into thinking that their respective interests are aligned, through mechanisms of, but not limited to, media control and manipulation.

Against this backdrop, it might be clear that the problem is multifaceted – it encompasses social, economic, political, legal and technological dimensions to varying degrees. But what are the primary impediments to the worst-off in America more fully participating in what some might consider the newest quixotic egalitarian aspiration? Do the impediments encompass access to information, such that minimizing or closing the digital divide could lead to significant change in the inner cities of the nation? Do they include grass-roots organizing and other community-building activities, both for purposes of community building itself and effective information utilization, such that economic and political advancement could be realized? What of the role of law? Whether, and to what extent, the FCC decides to regulate VoIP, is it significant for the folks who are subjected to the exorbitant collect calling fees charged when accepting calls from imprisoned family and friends or those serving in Afghanistan, Iraq or Korea? The answer to all the questions of this nature, I suspect, is a resounding yes. This is so because resolution of these matters in a manner consistent with valuing the public interest over private interests would signify shifts in what people will generally expect and accept.

Yet, while changes across all the spheres just mentioned are very necessary, they are not sufficient. There’s more. In addition to those spheres just discussed, I submit there also exist formidable sociological and psychological impediments not often figured into the “Internet Society” calculus.

It must be understood that the vicissitudes of daily life for the commoner in those communities which are the concern of my inquiry not only preclude access and effective utilization of information and community organization and political action, but also undermine an important antecedent to such activity – a self-image, and by extension a community-image, conducive to valuing participation in a system that historically, indeed contemporarily, has promoted a sense of despondency difficult to imagine if not lived. This sense of despondency is the result of the confluence of many circumstances, including constant exposure to a concentration of pathologies (i.e., joblessness, poor public educational systems, public official venality, crime, etc.) and commercial exploitation (e.g., predatory lenders, opportunistic retailers, etc.). As such, any model seeking to expand the life opportunities for people living under the worst of conditions in America must include components that successfully combat the pervasive sociological and psychological mechanisms currently so entrenched.

Naturally, the question becomes how, if at all, can it be done. What role, if any, can the Internet play? Reluctantly, I must admit that I don’t believe much can be done in the short-term. As evidence of major social movements in our history suggests, the Moseses of the nascent Internet Society won’t see the Promised Land (think M.L. King, Thurgood Marshall and Charles Houston as the Moseses of the civil rights school desegregation era). I am, however, optimistic that future generations can benefit greatly from a well-planned and executed technology-grounded strategy. Such a strategy requires our Joshuas and Calebs to be bold enough to confront the Philistines of media conglomerates, government and other private entities. It also requires mobilization of intellectual forces committed to freedom and equality, as expressed through support for such initiatives as the $100 laptop, municipality-sponsored wireless access, expansion of broadband capabilities into rural areas and most importantly, a public education system that both recognizes and advances the unlimited capacity of the Internet to educate youth, in the truest sense of the term.