A “Reasonable” Expectation of Privacy

I’m no lawyer. God knows D.C. has enough of those already. But I do like to listen to supreme court cases on CSpan radio periodically, and I can’t help but take a layman’s opinion on some of the things that are transpiring at the nexus of law, technology and culture. The three are out of step but connected at the hip.

In our culture we are seeing a rapid erosion, albeit with periodic backlash, of the expectation of privacy. Technology has pushed and pulled us along towards a more transparent and connected world. As we opt into these connected, transparent systems, we are simultaneously opting out of our traditional norms for privacy. There is an argument to be made that we are still maintaining concentric layers of social trust within these virtual public spaces. But the fact remains that technology allows us to see, hear and affect each other in ways that traditional privacy norms prohibited.

If the culture is indeed changing, then what becomes a reasonable expectation of privacy? What is considered reasonable is, in part, determined by a cultural consensus which in turn impacts new case law and our understanding of common law. I’m not arguing that it should, but just that it does. Ideally we would develop our technologies with a clear eyed understanding of its implications for humanity rather than letting the tail wag the dog. But technology, which is supposedly morally neutral, often facilitates the worst as well as the best in human nature. It is up to the inventors, the technologists, the creators and entrepreneurs to take up the mantle of founding father or mother.  They must try to foresee, with the wisdom of a constitutional convention, how the masses will be affected.