Page 70 - Privacy in a Cyber Age Policy and Practice

EIGHT NAILS INTO KATZ’S COFFIN 55

70 percent of business managers admitted ruling out candidates based on
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information found online. Although such evaluations are typically done
through Internet searches or mutual friends, in some cases employers and
universities demand Facebook passwords from current or prospective
employees and students, a practice that, despite controversy, remains legal
31
in the majority of United States. On the other hand, evading this scrutiny
by restricting access to or removing personal information from Facebook
32
may also hurt one’s job prospects. In addition, Facebook is monitored by
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intelligence and law enforcement agencies. 34
Following California v. Greenwood, in which the Supreme Court deter-
mined that material left outdoors in trash bags was accessible to the public
35
and thus could not reasonably be expected to be private, the Supreme
Court has tended to find it reasonable to expect privacy only in acts or
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spaces unobservable to the general public. As shown by Facebook, how-
ever, the evolution and mass adoption of new communications and other
technologies tends over time to increase the public visibility of acts people
consider private. The Supreme Court has in effect held in recent rulings
such as Dow Chemical Co. v. United States that “the effect of modern life,
with its technological and other advances, serves to eliminate or reduce a
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person’s justified expectation of privacy.” Along these lines, Helen Nis-
senbaum notes that the “expectation of privacy” test prevents the Court
from ruling against increasingly prominent practices of public surveillance,
which include online public records, consumer profiling, data mining, and
the use of location technologies such as radio frequency identification
(RFID). This is because the test defines movement or activity in public are-
38
nas as “implicitly” abandoning “any expectation of privacy.” Nissenbaum
views this as evidence that “prominent theoretical approaches to privacy,
which were developed over time to meet traditional privacy challenges,
yield unsatisfactory conclusions in the case of public surveillance.” 39

7. Katz Is Undercut by the Third-Party Doctrine

Katz is further damaged by the combination of recent technological devel-
opments with the “third-party doctrine.” As stated in United States v. Miller,
this doctrine asserts that the “Fourth Amendment does not prohibit the
obtaining of information revealed to a third party and conveyed by him
to Government authorities” and that “issuance of a subpoena to a third
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party does not violate a defendant’s rights.” While it originally justified
the police subpoena of a suspect’s bank records, the third-party doctrine
has since become a serious impediment to Fourth Amendment restrictions
on new surveillance technologies due to the essential role third parties play
over the Internet. As a result, argues Stephen Henderson, the “reasonable