How Much Privacy Do You Expect? The Death of Privacy In America

Below is my column today in The Washington Post. The article explores the famed Katz test and whether, in trying to save privacy in America, the Supreme Court may have laid the seeds for its destruction. The test ties our privacy protections to our privacy expectations. Thus, as our expectations falls, warrantless surveillance rises — causing our expectations again fall and in turn allowing warrantless surveillance to rise further. It becomes a face to the bottom of privacy. The terrible truth is that the death of privacy in America will not be accompanied by thunderous applause, but a collective yawn from an indifferent people. Here is the column.

In December 1967, the Supreme Court issued what many consider to be one of its greatest and most eloquent decisions, in Katz v. United States. That case, which is celebrated as saving privacy in the United States, articulated the principle that “the Fourth Amendment protects people, not places.” The decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

This past week, a different high court sat to hear a new privacy challenge in Jones v. United States. The issue this time is whether privacy protections are dying in the United States — and whether Katz may be to blame.

The Jones case involves one of the most ubiquitous pieces of technology in modern life: a Global Positioning System device. Antoine Jones was convicted in the District of Columbia in 2008 on drug charges after police followed him for 28 days with a secretly installed GPS device that monitored his location.

This surveillance continued after a warrant had expired. But the Obama administration insists that no warrant should be required for the government to track the movements of citizens with such devices. The administration says that the new technology merely captures what can be observed, albeit in far greater detail. But the technology could allow the government to follow an almost limitless number of citizens in real time, all the time. If successful in its argument, the Justice Department would expand the powers of the government to spy on citizens to what Justice Stephen Breyer called Orwellian proportions.

Privacy appears to be in a vicious 40-year cycle. In Katz, the court was dealing with decades of increasing surveillance under the “trespass doctrine,” established in 1928, which allowed the government to conduct warrantless surveillance so long as it did not physically trespass on the property of a citizen. When the court created the ill-conceived doctrine, technology was already making the trespass test meaningless. With new devices, agents could listen to conversations without entering a home or office. This is why the court’s pronouncement that the Constitution “protects people, not places” was such a victory for civil liberties. But what if the people don’t care?

Under the Katz test, warrants would be needed when there is a “reasonable expectation of privacy” by a citizen. But that standard laid the foundation for the demise of privacy. As we come to expect less privacy, we are entitled to less of it.

As warrantless surveillance rises, our expectations fall, allowing such surveillance to become more common. The result is a move toward limitless police powers. Those declining expectations are at the heart of the Obama administration’s argument in Jones, where it insists that the government is free to track citizens without warrants because citizens expect to be monitored.

The United States was once defined by an intense commitment to privacy, with far greater protection than was found in some of our closest allies, such as Britain. That was already changing, however, when the Katz decision was handed down. The erosion of privacy sped up as new rulings joined new technology in creating more transparency in society in the 1970s and 1980s. The court chipped away at citizens’ expectations with a long line of exceptions to the rules for when a warrant is necessary — allowing the government to pat down citizens, review their bank records, intercept the telephone numbers they dial, search their cars, search travelers at borders and airports, and perform an array of other searches deemed “reasonable.” Those exceptions have now swallowed the rule, so that more searches today are done without warrants than with them.

Beyond those exceptions, we are living with a growing network of public surveillance cameras on highways and city streets. Chicago alone has installed about 10,000 such cameras in the past few years. Britain still surpasses the United States with a state and private network of 1.85 million closed-circuit TV cameras. These systems often feature facial-recognition software that not only records the movement of citizens but can identify individuals.

Privacy is also under assault from private companies. In the years since the Katz decision, security cameras and other technology have multiplied; companies routinely watch customers and employees. Video surveillance is a $3.2 billion industry, one-third of the overall security market, according to 2007 data from the Security Industry Association.

When I teach Katz and privacy in a law school classroom, a university sign warns everyone that “this room is subject to surveillance.” It is a telling reminder of how, even in discussing the loss of privacy, the lecture is being taped by the institution. Even elementary and high school students are now accustomed to being under surveillance on their buses and in their schools. For these children, continuous monitoring is just part of life.

Today, we are under surveillance as we drive from our houses in the morning, when we stop to buy coffee, when we return to the road and when we enter our workplaces, where our phones are often monitored and our offices surveilled by video cameras. The monitoring only ends at home, when we close our doors — if we’re lucky. In a 2001 case, the court ruled that the government couldn’t use thermal imaging to track people inside their homes without a warrant, but that was a 5 to 4 vote.

After 9/11, President George W. Bush greatly expanded the scope of warrantless surveillance, and President Obama has maintained and even increased those powers. Citizens have largely accepted the false premise that privacy is the enemy of security and have supported ever-widening surveillance powers. The problem is that privacy remains an abstraction, while crime, or terrorism, is a concrete threat.

The Jones case, however, highlights the flaw in our legal understanding of privacy. The Obama administration is arguing that citizens expect that their second-by-second movements can be tracked. If the government goes too far, the administration told the court, the solution is not found in the Constitution but in Congress. That’s a dangerous view, however, as Congress has historically been indifferent, if not hostile, to individual rights. Few members are willing pass laws to protect privacy over security demands, leaving many arguing for small government while ignoring the Big Brother that dwells within it.

Under Katz, it turns out, the problem is not with the government but with us. We are evolving into the perfect cellophane citizens for a new transparent society. We have grown accustomed to living under observation, even reassured by it. So much so that few are likely to notice, let alone mourn, privacy’s passing.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University.

Washington Post (Sunday), November 13, 2011

50 thoughts on “How Much Privacy Do You Expect? The Death of Privacy In America”

  1. This might be a job for the EPA.
    If the Justice Department does not prosecute, this will improperly pollute expectations, which is a theft of the commons, our intellectual property and heritage.
    Heir pollution.

  2. “I think it more a fight best suited for the human dignity arena. That old stadium doesn’t get enough contests.” (mespo)

    Intriguing comment … could you expand on that … please

  3. The “Katz” is out of the bag. Our expectation of privacy has been attacked for years through the intentional use of fear mongering. It seems that there is an unwritten code for Presidents that they must increase the power of the Presidency no matter what they campaigned on, and they must increase the surveillance state in order to keep the riff-raff in line. What will it take to put that “Katz” back in the bag? I think the answer might be an OWS like movement.

  4. I think the writing is on the wall as far as the direction that our Government has chosen to go, through law-making and the selective enforcement of existing laws.

    So who is getting it right? What Country is actually supporting their citizenry…and enforcing the protections of privacy…amongst other rapidly dissolving protections. Who ?

    A few years ago, a law was passed that enabled the banks and the Insurance Industry to look into peoples fiscal lives in a way that laid the foundations for the finacial exploitations that have wrought so much damage. I remember also that after Enron, GWBush had the oppotunity to put a losso around the rampant off-shoring of down-side numbers on the books…..none of these decisions were supportive of a citizens rights….and they also empowered the Corporate beast to push further and further into a all profit no responsibility zone….so, who then, what Country….is getting it right? Cause we don’t seem to be….

  5. “The terrible truth is that the death of privacy in America will not be accompanied by thunderous applause, but a collective yawn from an indifferent people.”

    This is so reminiscent of this final line:

    “This is the way the world ends
    This is the way the world ends
    This is the way the world ends
    Not with a bang but a whimper.

    —T.S. Eliot, “The Hollow Men” (1925)”

    While the battle remains and must be fought, I fear that lack of privacy from government surveillance has attained primacy, with the full complicity of frightened and passive people, who welcome it as much as they fear it. We have been and are being conditioned to accept it, until we too shall become like Winston Smith, alone in his shabby room lost in dread thoughts that he must not share aloud under the judging eye of Big Brother.

    This to me is why the left/right paradigm is so vapid. Surely there is common cause to be had on this issue by people who love liberty more than they do their precious political insights. When it comes to privacy: “Ich bin ein Libertarian”

  6. Eniobob,

    It’s damn hard to get a private number……some services allow you to block some numbers…..what I think is most concerning….is the phone privacy act….or home solicitation does not apply to campaigning…..go figure…,

  7. Just received a letter from Verizon on this subject and what they can do with my internet and wireless services regarding my privacy and their willingness to give info to certain advertisers regarding my wireless and mobile communications.

    I would assume anyone who uses Verizon got this same letter I did.

  8. Mespo, your question to Tony goes back to the notion of active versus passive. Of course, following people and watching them covertly is as old as law enforcement and intelligence services have existed. Since the invention of the camera, public appearances by suspects have been photographed. Anyone who thinks they can avoid being photographed in a public place is living in a dreamworld. The paradigm shifts when they start putting tracking devices on my computer, my telephone, my car or my person.

    There is also the mirror of that, and thank goodness for it. Police and others need to be aware they can and are photographed and videos made as they go about their daily activity. I just went to Google Videos and typed in the search words, “Police Beating.” I got approximately 34,500 hits. Check it out at the link below.

  9. Tony C:

    Would you argue that a police officer standing on the corner has no right to look at you as you go ablut your daily activities in public? If you wouldn’t, does it really matter that he records the event in digital form instead of in his hippocampus?

  10. The amount of trust the average citizen has in government is astonishing.

    On the one hand, we now allow government to trawl through emails, financial transactions and credit card activity, web activity, phone records, and cell phone location data without significant objection.

    On the other hand, government has constructed a fortress of privacy for itself, with more and more activities even outside of review by the courts when “state secrets” are claimed.

    We are conditioning new citizens to live without any expectation of privacy from the moment they start school. Over time fewer and fewer will be able to conceive of a society where property is not routinely invaded by government at will.

    If car GPS monitoring is allowed I would also expect government to mandate it and monetize it fairly rapidly. Taxing a car on the road during rush hour, taxing speeders, even taxing purchases done in low-tax areas at your home tax rate.

  11. @mespo: I think I have a reasonable expectation of privacy from the State on a public street. Is it the government’s business where I eat or whose company I keep while I do it? If I take a week off from my job and fly to San Francisco and interview there, why is that the government’s business?

    The problem with government surveillance is thinking the government can be trusted with the information, when they have proven time and again they cannot be. From the front-line grunts that process the raw information all the way through the process chain to the top line politicians, information gets leaked, for fun or profit. Some of that profit is in aid of criminal activity and political corruption, like leaking information on a competitor’s filing to a business, or talks of a merger to a stock marketeer.

    Absolute power corrupts absolutely. People usually have reasons to keep some information private. Knowing private information invalidates that reason; and provides a leverage point against them, a potential way to manipulate them, and that is power.

    The more information the government has, the more power it has, and the greater the power, the greater the potential of corruption and using the power against us rather than in aid of us. I do not regard the government as automatically benevolent, there are seriously corrupt malignancies within it, from the cops on the street to the White House.

    I think a government should be a servant of the people, not an overlord, and it is not my servant’s job to follow me around, read my emails, and sit in on my meetings and look through my financial records and investments.

  12. Tip to anyone ever arrested or detained on suspicion of pot odor: whether you do or do not have weed in your system, INSIST on a drug tust. They won’t give you one.

    While we are on that subject, drug testing as a requirement for employment is a complete violation of privacy and violation of constitutional rights.

    employers have no right to know if you smoke or are pregnant or to have access to your medical records, which can then be accessed by any transient idiot in personnel.

  13. I AM reassured by video on public streets and, especially, on police cars. I think it keeps people in line, particularly cops.

    I’ve seen video of the occupy wall street movement and rallies.

    The police were corralling peaceful protesters who were not antagonizing, not violent, and not yelling.

    The cops began to beat on the people with their sticks. A zillion people whipped out their cel phones and started videotaping.

    The cops rethought the situation.

    I expect video in public places and don’t mind it.

    Cel phones and computers can be tracked and hacked, by criminals as well as government officials. One must take precautions.

    On the other hand, the police already have nearly limitless powers.

    There is a book called “Busted” written by an ex-cop.

    He says police have quota’s, being a cop is not about protecting citizens or solving crime but about doing a job, writing tickets, and destroying then future of young people too poor or niave to lawyer up.

    He says all cops have to do is say the smell pot and bam, warrant. It’s an odor, so whether the odor is or isn’t present is never provable.

    If they find nothing…whatever, no skin off their teeth. it’s acceptable to pretend they smell pot-it’s the oldest trick in the cop book.

    That’s probably the reason pot will never be legal. it’s the cops biggest loophole into anybody’s life, at any time, at their discretion.

  14. It seems to me the difference is passive versus active surveillance. When I pass a fixed security camera, the surveillance is passive. When anyone places a listening device on your communications or installs a tracking device on your vehicle, that is an active surveillance and needs to be monitored by a court.

    When the court order expires without being renewed, then IMHO, any evidence, or action taken on the basis of that evidence after the time of expiration should be fruit of the poisoned tree.

  15. “Beyond those exceptions, we are living with a growing network of public surveillance cameras on highways and city streets.”


    Can one really be said to have a reasonable expectation of privacy on a public street or in a public area. It’s sort of a Great Garbo moment of “I vant to be alone,” while meandering through a crowd. I don’t like surveillance, but can it really be fought on the right to privacy grounds? I think it more a fight best suited for the human dignity arena. That old stadium doesn’t get enough contests.

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