Page 73 - Privacy in a Cyber Age Policy and Practice

58 PRIVACY IN A CYBER AGE

Justice Sonia Sotomayor’s own concurrence went even further and took
the opportunity to criticize the third-party doctrine as “ill suited to the
digital age” despite the lack of third parties in the actual case at hand.
Justice Scalia’s majority opinion sidestepped these issues by resurrect-
ing the property-based standard and treating the vehicle in question as
akin to a home because trespassing, a term usually used for homes and
here applied to a person’s car, was involved. Alito’s concurrence criticized
Scalia’s application of “18th-century tort law” as being unsuited to “21st-
century surveillance” and pointed out the ruling’s “[d]isharmony with a
substantial body of existing case law,” emphasis on the “trivial” matter of a
physical device rather than the central issue of privacy, and irrelevance to
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non-physically intrusive electronic surveillance. Scalia responded to this
criticism by warning that relying “exclusively” on Katz “eliminates rights
that previously existed.”
The issue stands out if one puts aside for a moment the language of
legal discourse, going beyond “this court stated” and “this court ruled,” and
examines the issue in layperson’s terms. Compare two situations: In the
first, the government suspects that a person is illegally growing marijuana
in his home, but the suspicion does not rise to the level that would con-
vince a judge to grant a warrant. How much violation of privacy occurs if
the government uses a thermal device to find out the temperature in that
home’s den—and it turns out that the person was innocent, cooking noth-
ing more than dinner? Or consider a police dog trained to detect bombs
and contraband that approaches the home from a side most visitors do not.
The Court has ruled that both cases are intrusions on the home and thus
violate a reasonable expectation of privacy. Now, compare these to a situ-
ation in which cameras follow a person in public, all day and all night—to
bars, clinics, Alcoholics Anonymous sessions, political meetings, rendez-
vous with a lover—and collect and analyze all this information to make
it available to the government. Such systems are not science fiction, but
rather are an increasing reality in major US cities; notable examples include
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Persistent Security Systems and Microsoft’s Domain Awareness System.
Or consider the use of parabolic microphones to eavesdrop on private con-
versations in a public area such as a park. If one accepts the principle that
some privacy should exist even in public areas, these modes of surveillance
represent much broader, deeper, and more indiscriminate violations of pri-
vacy than the limited and situational intrusions of a drug-sniffing dog or an
infrared scanner penetrating the home.
In short, Katz moved the United States no more than, at best, a baby
step toward privacy protection outside the home. Katz excessively privi-
leges the home, while the United States needs a doctrine of privacy that
protects privacy in both realms against unreasonable search and seizure.