Page 39 - Privacy in a Cyber Age Policy and Practice

24 PRIVACY IN A CYBER AGE

deliberations on privacy by the public, law enforcement authorities, policy
makers, and courts. Each case seems to rely on a different rationale; some
of these rationales are obsolete, and some are surprisingly idiosyncratic.
(A harsher critic would call them capricious.) One case ruled unconsti-
tutional the planting of a GPS device because it constituted trespassing;
another ruled unconstitutional the use by law enforcement of a thermal
imaging device on the grounds that it was not a technology then in
common public use; others have referenced the “special needs exception”;
yet another held that the presence of a police narcotics dog at the door of a
residence was sufficiently dissimilar to the act of a private citizen knocking
on the door as to be unconstitutional without a warrant. Whatever limita-
tions the preliminary CAPD outlined below has, it is surely less subjective
than judges’ intuitions as to what constitutes a reasonable expectation of
privacy and is surely more systematic than the curious amalgam of court
cases that currently govern the field.
The liberal communitarian philosophy—which holds that individual
rights, including privacy, have the same fundamental standing as the
common good and that neither a priori trumps the other, and which is
described more fully in the first chapter of this book—provides an excel-
lent normative foundation for just such a new doctrine. Each society works
out a balance between the two claims, which is often adjusted to take into
account changes to the society’s international environment, domestic
social developments, and changes in technology. (For another discussion
of this balance as it applies to privacy and security, see Chapter 7.)

As Chapter 1 mentions, the Fourth Amendment exemplifies the liberal
communitarian approach because it prohibits only unreasonable searches
and seizures and provides a mechanism for according rights or the com-
mon good priority.
The following analysis focuses exclusively on one of the two elements
of liberal communitarianism: individual rights, in particular the right to
privacy. It seeks to outline the principles that should guide the courts and
legislatures in determining the type and scope of intrusions by the govern-
ment that should be tolerated, banned, or allowed only with prior autho-
rization. The analysis holds constant the level of contribution to the public
good accomplished by these intrusions and studies only changes in the
level of privacy violation. This “control” is necessary because, as already
indicated, if there were a significant change in the threats facing the com-
mon good—whether an increase or a decrease—the balance between
privacy and security (and other common goods) would have to be reca-
librated. I have explored this subject elsewhere, including in Chapter 7 of
this book. 33