In Appeals Court OKs Warrantless Wiretapping, David Kravets summarizes a recent 9th Circuit decision regarding wiretaps by the federal government. How is this possible?
Daniel J. Solove’s 2008 book, Understanding Privacy, attempts to characterize and understand the complex and contradictory modern views and approches to privacy. For Solove, “[p]rivacy concerns and protections do not exist for their own sake; they exist because they have been provoked by particular problems” and it “is protection from a cluster of related problems that impinge upon our activities in related ways.”
The concept of “privacy”–as in “the right to privacy”–can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).
A slideshow presentation of my talk on the shifting views on privacy, from the nineteenth century’s focus on property and relationships to the twentieth’s focus on people as having an individual right to privacy.
So the fact that Dropbox allows legal access to your data is not the end of the world for use of the cloud, even for lawyers. But for truly secure offsite storage, likely more secure than even old-fashioned paper storage, consider solutions that provide end-to-end encryption.
In the law, there is a difference between confidentiality and privacy, and it’s a difference that’s important for both legal history (highlighted by the 20th century focus on the right to privacy in American law, as opposed to a 19th century focus on confidentiality) and contemporary law.
With the introduction of the telegraph in the 1800s, some jurists, recognizing the growing importance of telegraphic communication, advocated for a kind of “telegraph operator-customer” privilege.
The “mere evidence” rule, forbidding searches for documents that were themselves not “instrumentalities” crimes (or contraband themselves) lasted well into the twentieth century before being abandoned. So why were telegrams never explicitly covered by the rule?
Former Michigan Supreme Court Justice Thomas M. Cooley, in a forward-looking article, advocated for extending Fourth Amendment protections to telegrams in 1879. Cooley articulated a position that both foreshadowed 20th century arguments over telephone wiretaps, and reflected his late 19th century concerns.
In Protections for Electronic Communications: the Stored Communications Act and the Fourth Amendment, Alexander Scolnik wrote:
As technology evolves, giving individuals new forms of communicating and government agents increasingly sophisticated tools for surveillance, courts have had to continually interpret the Fourth Amendment and define the extent of its reach in light of these new advances.
For the Fourth Amendment–the prohibition against unreasonable search and seizure–one of these foundational cases was Entick v. Carrington (1765). It was not until Katz in 1965 that the Supreme Court returned to the tradition of ex Parte Jackson and held that “the Fourth Amendment protects people, not places.”
Anuj C. Desai explains that the extension of the Fourth Amendment to cover postal mail, and then later to telephones, is based not so much on the inherently Constitutional nature of opening mail, but instead on the increasingly firm belief in the sanctity of the mail as expressed by Congress, legislators, and the public.