Changing technology, changing expectations of privacy
By Kristopher A. Nelson
in November 2010
900 words / 4 min. My goal here is to compare and contrast the legal changes that occurred as new technologies-state-run postal services, the telegraph, the telephone, and email, for example-emerged, and through this to seek insight into these larger questions.
Note: this post is from 2010. Evaluate with care and in light of later events.
Do changing expectations of privacy through time reflect changes in societal attitudes, legal reasoning, or technology? Do broad societal ideals and conceptions drive both the law and the technology? Does individual practice change to adapt to the law, or does the law adapt to our practices? Do our expectations or privacy change because of specific new technologies, or instead do our changing expectations reflect a broad change in attitudes independent of technology? Obviously, these are big questions. My goal here is to compare and contrast the legal changes that occurred as new technologies–state-run postal services, the telegraph, the telephone, and email, for example–emerged, and through this to seek insight into these larger questions.
To do this I plan to begin with the simplest archive I have access to: Google Scholar’s case-law database of all federal appeals court and Supreme Court opinions, along with as many state opinions as Google allows access to. This is, in a sense, an “objective” archive, since every decision (of the appropriate court level) is archived. On the surface, at least, archivists have no influence or the process, and their biases (unconscious or not) are not reflected in what is kept. This is especially true in Google’s archive, since keyword searching and automated linking joins cases together, instead of human editors who categorize and link cases (as has historically been the case with Westlaw and LexisNexis, along with their predecessor paper versions).
But if the archive itself is “unbiased,” nonetheless the materials that end up there are deeply embedded in societal values, biases, and beliefs. This is especially true because trial court opinions are much harder to find, and are archived haphazardly at best. As a result, only the cases or controversies that courts deem important enough to accept on appeal make it into the archive at all. Additionally, since the archive consists only of the final court decision, without briefs, trial testimony, etc., the voices of the participants are generally silenced in favor of the court’s view and perspective, which becomes the final word in the archive.
To pull from our readings, put in Richard Harvey Brown and Beth Davis-Brown’s terms, “relations of power and domination are often masked by or reduced to technically instrumental relations of efficiency; that is, moral and political questions are displaced to nonmoral and nonpolitical technical or professional discourse.” In this sense, archives maintained for ostensibly objective purposes may be more subtly misleading because what they hide is better masked, and what they reveal is more easily taken to be the complete truth, untainted by attempts to manipulate the narrative. A similar kind of problem to that described above is, I think, the case with this archival source: since “everything” is archived, there appears to be no bias, but in fact, these biases are simply masked behind the appearance of objectivity.
My intent is to seek out the, first, the earliest examples of a technology appearing in the archive, and then see how courts have dealt with it over time, particularly in relation to issues of privacy (including the Fourth Amendment or “search and seizure”). I intend also to look to legal treatises which provide information of the key–or most cited–cases, and see how the court conceptualizes the relation of the technology with privacy, and how this conceptualization may have changed over time. I wish to tease out, if possible, whether these changes are because of changing societal norms related to privacy as a concept or because technology (or the use of technology) has changed.
If possible, once I have dealt with the easily available appeals court and Supreme Court case law, I would like to expand my archival sources to include trial court information: lawyer’s briefs, trial transcripts, and so on. Additionally, I would like to examine Congressional testimony related to new technologies, and see how lawmakers may have conceptualized privacy. But these sources are be more difficult to access, especially in regards to older technologies, where sources are still print-based and stored in, for example, Washington, D.C.
Ultimately, I would like to get at attitudes, beliefs, and practices of the people “behind” the law and the cases, and not just speak in general terms about “societal values.” Specific cases can be excellent vehicles to achieve this, since each court case reflects a specific battle between specific opponents (plaintiffs and defendants). But getting access to their voices can be problematic, as I’ve indicated above, due to the erasure in the archive of many of the original materials (briefs, trial transcripts, depositions, etc.)
So we’ll see where this research approach takes me. Ideas, thoughts, etc. are appreciated!
- Fourth Amendment Stunner: Judge Rules That Cell-Site Data Protected By Fourth Amendment Warrant Requirement (volokh.com)
- Corporate Persons Have Privacy Rights, Too (themoderatevoice.com)
- Editorial: An Illegal Search, by GPS (nytimes.com)