Page 67 - Privacy in a Cyber Age Policy and Practice

52 PRIVACY IN A CYBER AGE

Some have suggested that using opinion surveys could make the rea-
sonable expectation of privacy test less circular and subjective by actu-
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ally finding out what people believe. Christopher Slobogin and Joseph
Schumacher, for example, have suggested that the Supreme Court should
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factor empirical sources such as opinion surveys into the Katz test. Henry
Fradella et al. likewise hold that survey data would provide “a far richer and
more accurate” basis for determining whether an expectation of privacy is
“objectively reasonable.” 15
Actually, social scientists tend to agree that such surveys may not pro-
vide a reliable and appropriate tool on which the courts can rely. Survey
results vary depending on who is surveyed, the ways the questions are
worded, the sequence in which the questions are asked, the context in
which they are asked (e.g., at home versus at work), and the attributes of
those who ask the questions. Even when the same question is asked of the
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same people by the same people twice—rather different answers follow.
These inherent problems are magnified when one seeks opinions about
complicated, abstract issues like “privacy” and “surveillance.” 17
People tend to give answers they believe are expected of them, espe-
cially regarding issues that are politically or ideologically loaded. Respon-
dents tend to exaggerate their income, popularity, happiness, and political
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engagement. Merely changing the phrasing of a question yields rather
different results. A 2003 poll, for example, found that a strong majority
(68 percent) of Americans favored invading Iraq, but this number fell to a
minority (43 percent) if the question mentioned the possibility of Ameri-
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can military casualties. Along the same lines, a medical study found that
patients were almost twice as likely to reject surgery when the predicted
outcome was phrased in terms of “mortality rate” rather than “survival
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rate.” These issues present formidable obstacles. Although social sci-
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entists have developed ways to mitigate them, the technological transi-
tion from land lines to cell phones and e-mail, coupled with the declining
response rate to polls, has made accurate polling increasingly difficult. 23
Particularly problematic is which “society” the court has in mind when
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it seeks to determine the societal expectation of privacy. Katz’s peers? The
members of his gambling community? Or the United States of America?
4. Expectation or Right?

Drawing on the societal expectation of privacy in effect amounts to draw-
ing on consensus. This raises a preliminary question: How much agreement
is needed to qualify as “societal” expectation? Full (100 percent) consensus
is not found in any complex society, even in ones much smaller than the
United States. Is 80 percent agreement enough? 66 percent?