Page 10 - Privacy in a Cyber Age Policy and Practice

PREFACE ix

out. Moreover, given various recent technological developments, we shall
see that there is much that we do in public space that we should be entitled
to keep private, as if we were at home. Hence, instead of making our home
our castle, we should consider privacy to be a personal sphere that goes
with the person wherever he or she travels, whether in private or public
space. For instance, if the authorities were to use parabolic microphones to
listen to one’s political or personal exchanges in a public park, that would
be a gross violation of privacy. Indeed it would be a greater violation of
privacy than if, say, the authorities were to measure the temperature in
one’s kitchen. The three criteria of the cyber age privacy doctrine—volume,
sensitivity, and cybernation—delineate the personal sphere and thus play
a role similar to the one played by the walls of the home in traditional pri-
vacy doctrine. They inform us which types of personal information should
be especially well-protected and which ones we should be more ready to
allow authorities to collect, store, and apply in the service of compelling
public interests.
Chapter 5 deals with a major source of the violation of privacy that is
usually not included when libertarians and civil libertarians focus on Big
Brother (i.e., government intrusions): privacy violations committed by
corporations. When I started studying this matter, I realized, of course,
that many corporations keep track of what their customers prefer and pitch
products tailored to personal tastes. I did not realize, however, the scope
and extent of the dossiers that data brokers keep on most Americans. They
include some very sensitive information and great amounts of personal
data. If the FBI were to keep such dossiers on hundreds of millions of
Americans, not only libertarians and civil libertarians but also very large
segments of the American public and their elected officials would be up in
arms. For various reasons, private sector privacy violations arouse much
less ire—even though the source of the information matters little if you
want to keep something private and instead find it on the front page of the
newspaper or going viral in the blogosphere.
I was stunned when I discovered that data brokers sell access to the dos-
siers they amass to various government agencies. It seemed to me that if the
government was not allowed to violate the privacy of Americans who were
neither charged with nor even suspected of any crime, neither could private
parties that were acting, in effect, as a government proxy. As we shall see in
Chapter 5, this is clearly not the case, despite the fact that the government
is merely one click away from these private databanks. I therefore lay out
an extremely challenging question: If privacy is to be restored, must private
sector privacy violators be treated in the same way as government agents?
Should we, and could we, read the Fourth Amendment as applying to both
the public and the private sectors?