Privacy Laws - Rise of Surveillance

There has been ongoing debate between Privacy and Security for decades and most often balance has tilted towards the security side of scale. Security issues are easily understood while Privacy rights are abstract. The governments across world are engaging in more and more surveillance in name of maintaining law and order in the society. Technology is providing unprecedented tools to monitor, track, access, seize and collect information and intelligence on people.

Privacy laws are still not able to cope with advent of new technologies, causing citizens to be monitored by both private companies and governments, without much checks. Few weeks back, when I wanted to understand Privacy in detail, I started to look into the Emergence of Privacy using key decisions from US Government. Most of the US Courts decision on specific cases had large impact on "Definition of Privacy" and the way Surveillance has evolved over years globally.

1761 - James Otis Jr. Boston merchants - Physical Surveillance

Government overreach was certainly in minds of Framers of Constitution in USA. In 1760's, American colonist were very much aware of invasiveness of British authorities. At that time, a "Writ of Assistance" was issued by British courts to search homes and businesses, and they lasted lifetime of the King under which they were issued, and could not be challenged.

In 1761, James Otis Jr representing Boston merchants argued that their rights are violated, he lost the case but he made five hour argument against the "Writ of Assistance"

"One of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle"

Fifteen years later, in 1791 such protections were distilled into Fourth Amendment:

" The right of the People to be secure in their persons, houses, papers and affects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause supported by oath of affirmation, and particularly describing place to be searched , and person or things to be seized.

For over a century, the Fourth Amendment right largely worked on notion of physical trespass. But in nineteenth century, new notion of invasion of privacy began to develop.

1928 - Olmstead v United States - First Telephone wiretapping

Roy Olmstead was a suspected bootlegger. Without judicial approval, federal agents installed wiretaps in the basement of Olmstead's building (where he maintained an office) and in the streets near his home. Olmstead was convicted with evidence obtained from the wiretaps. Olmstead challenged the use of evidence disclosed in wiretapped private telephone conversations and that it violated the rights under Fourth amendment.

US Supreme Court ruled Fourth Amendment did not apply to wiretapping since

1. There was no searching
2. There was no seizures
3. There was no entry of the house or the offices of the defendants.

Six years post Olmstead, US Congress passed Communication Act of 1934, a law which prohibited wiretapping, but the law was ineffective , since it was interpreted only to preclude the introduction of wiretapping evidence in court. The government could wiretap freely so long as it did not seek to use the product as evidence at the trials .

1967- Katz v United States - Reasonable Expectation of Privacy

Acting on a suspicion that Katz was transmitting gambling information over the phone to clients in other states, 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 for the illegal transmission of wagering information. On appeal, Katz challenged his conviction arguing that the recordings could not be used as evidence against him. 

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. The Fourth Amendment "protects people, not places,".

"What [Katz] sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication."

This case also initiated for the first time "Reasonable Expectation of Privacy" test as key for defining the scope of the applicability of the privacy protections.

Reasonable Expectation of Privacy

Reasonable expectation of Privacy test is crucial in determining legitimate search and seizure from illegitimate one.

1. Subjective expectation of Privacy -- a certain individual's opinion that a certain location or situation is private; varies greatly from person to person
2. Objective expectation of Privacy -- an expectation of privacy generally recognized by society 

To meet Subjective expectation of Privacy, the person from whom the information was obtained must demonstrate that the person asserting that a search was conducted must show that they kept the evidence in a manner designed to ensure its privacy.

To meet Objective expectation of Privacy he/she should not keep the evidence at issue in place that society is prepared to recognize open or public space.

For example, there is "No Reasonable Expectation of Privacy" - when police

a) Rummaged through person's trash left out for collection

b) Obtained the list of phone numbers a person dialed

c) Peered down on a person's property from helicopter

d) Collected data a person provided to Third Party Providers

e) Searched automobile left with doors locked and windows rolled up

Rapid deployment of technologies has made Privacy a complex and continuously evolving area. What is your "Reasonable Expectation of Privacy" on following items :

a) Use of Biometric at airports and many other government offices

b) Use of Retina or Face scan on Kiosks for shopping or ordering goods

c) Use of Thermal scanning to monitor and track your presence in crowded places

d) Use of License Plate Readers across the cities and countries

e) Mobile apps based tracking of Citizens

Privacy has many finer aspects to be considered and hence it is difficult to understand the boundaries of what constitute intrusion of privacy. While most developed countries have defined privacy laws, developing countries are way behind in defining the Privacy and associated citizen rights. We all know by now, how Telecom companies data and Online Search data is used by countries to increase surveillance on citizens. Inaction to quickly conceptualize and adopt new privacy laws, inline with new age technologies, will impact sustainable development across world population. With the rise of new technologies, a need to set up robust and comprehensive privacy laws , as well train and educate the workforce on the same, has never been more urgent.

Do share your views on the same

Katz v United States

Olmstead v United States

Katz and Reasonable Expectation of Privacy

James Otis - Bill of Rights

Cornell Law - Expectation of Privacy

Habeas Data: Privacy vs. the Rise of Surveillance Tech

UN - Privacy and Surveillance report

Toward defining privacy expectations in an age of oversharing