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Today’s Note: What is Privacy, in Today’s Digital World?

February 1, 2012

The question of what information really is, and who owns it is a difficult one to frame these days. Nearly as tough is framing the question of what privacy is. Today’s Note presents the article “Privacy, Technology And Law,” by Barry Friedman, from the January 28th New York Times. Friedman’s Op-Ed is an important and well-written discussion of the impact a recent Supreme Court decision may have, in the long run, on how courts interpret personal privacy in an increasingly digital age.

Friedman opens by posing this question:

EVERY day, those of us who live in the digital world give little bits of ourselves away. On Facebook and LinkedIn. To servers that store our e-mail, Google searches, online banking and shopping records. Does the fact that so many of us live our lives online mean we have given the government wide-open access to all that information?  [throughout this post, all italics have been added by to denote quotations directly from Friedman’s article]

Friedman is just as quick to answer this question. He says “the Supreme Court’s decision last week in United States v. Jones presents the disturbing possibility that the answer is yes. In Jones, the court held that long-term GPS surveillance of a suspect’s car violated the Fourth Amendment.” But there’s a twist. Friedman thinks there is more downside in the context of the answer than upside in the answer itself. Specifically,

Focusing on public expectations of privacy means that our rights change when technology does. As Justice Alito blithely said: “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.”

Friedman challenges the narrow thinking of Scalia and Alito writings by posing this question: “But aren’t constitutional rights intended to protect our liberty even when the public accepts “increased convenience or security at the expense of privacy”? Fundamental rights remain fundamental in the face of time and new inventions.”

The Times piece is a very carefully constructed article, and I am choosing not to “over-quote” it here for fear for stretching it out of context. But Friedman has strong insight into what the Court’s decision addresses, and what it means. Ultimately,  incessant evolution of technology challenges us, much like Friedman does, to look freshly at what privacy and information really are and draw conclusions about the limitations of law in light of how quickly those definitions change. These issues will be grappled with by courts and newspapers for decades to come. Friedman’s article is a good place to start to master the topic.

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