Page 19 - Privacy in a Cyber Age Policy and Practice

4 PRIVACY IN A CYBER AGE

privacy of his own home.” Since that time, the Supreme Court has repeat-
edly emphasized that Stanley’s protection applies solely within the physical
boundaries of the home: While obscene books or films are protected inside
of the home, they are not protected en route to it—whether in a package sent
by mail, in a suitcase one is carrying to one’s house, or in a stream of data
obtained through the Internet.
However adequate this narrow reading of Stanley may have been in the
four decades since the case was decided, it is ill-suited to the twenty-first
century, where the in-home cultural life protected by the Court in Stanley
inevitably spills over into, or connects with, electronic realms beyond it.
Individuals increasingly watch films not, as the defendant in Stanley did,
by bringing an eight millimeter film or other physical copy of the film into
their house, but by streaming it through the Internet. Especially as eReaders,
such as the Kindle, and tablets, such as the iPad, proliferate, individuals read
books by downloading digital copies of them. They store their own artistic
and written work not in a desk drawer or in a safe, but in the “cloud” of data
storage offered to them on far-away servers.

Therefore, it follows that privacy is best viewed as a personal sphere that
surrounds an individual irrespective of location. This is a version of what
Christopher Slobogin calls the protection-of-personhood version of pri-
vacy, which “views the right to privacy as a means of ensuring individuals
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are free to define themselves.” Privacy plays the same role whether one is
in the home or out in public: “Because a substantial part of our personality
is developed in public venues, through rituals of our daily lives that occur
outside the home and outside the family, cameras that stultify public con-
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duct can stifle personality development.” If the government uses a long
distance “shotgun mic” to eavesdrop on the conversation of two people
walking in a public park, such a search would be more intrusive than if the
government were to measure the temperature of their kitchens. This is the
case because conversations are much more revealing about an individual
than his or her preferred temperature, because the former can include their
medical condition, political views, and so on. (I discuss later the question
of whether information revealing that one is committing a crime deserves
extra protection.) In short, privacy should not be home bound. (For a more
thorough discussion of this point, see Chapter 4.)

3. A “Social Policy” Model of the Fourth Amendment

The cyber age privacy doctrine concerns the normative principles that
underlie both the evolving interpretations of the Constitution and the laws
enacted by Congress, both of which reflect changes in the moral culture
of the society. It therefore deals with both the Fourth Amendment and