Page 81 - Privacy in a Cyber Age Policy and Practice

PRIVACY: A PERSONAL SPHERE, NOT HOME-BOUND 67

attempt to enclose their living space are unknot protected against govern-
ment intrusion; the relative solitude of public spaces such as tunnels does
not negate the ability of the government to intrude at will, and homeless
persons who “squat” in abandoned buildings are still less protected by virtue
of the fact that they are actually trespassing. 61

D. Technological Changes
Much public discourse in the West assumes a sharp difference between
the “public” and “private” realms, most obviously about the relative merits
of government programs and regulations compared to private economic
and social activities, between liberal and conservative philosophy. In a
previous study, this author showed that these differences are often vastly
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overstated. For instance, privacy may be violated not only by the govern-
ment, but also by corporations that specialize in collecting vast amounts of
personal information about Americans to form detailed dossiers on them,
including information about intimate aspects of their lives. These corpora-
tions not only intrude on their own, but also sell their data to various gov-
63
ernment agencies that include the FBI and IRS. The difference between
public and private databanks is thus merely a check and a click. Can one
protect privacy (or national security, for that matter) in one realm without
also undertaking parallel steps in the other? To highlight the scope of the
normative and legal challenge this question poses, in effect the question is,
“Should not the Fourth Amendment also apply to private actors?”
The issue is made more acute by several major technological develop-
ments. The most prominent of these is the rise of the personal computer and
the Internet. It makes less and less difference whether a person accesses
information in the privacy of their home or in public, because it is increas-
ingly possible to discern the information a person is accessing at home,
from outside the home. Moreover, if the individual reads, say, a physical
copy of a radical political text on a public bench, only passersby or passing
authorities could learn of it. By contrast, in the Internet age, the same
observation can be made by any hacker, gangster, intelligence agency, or
curious (or controlling) lover traveling on another continent. Moreover,
information stored by the person, including correspondence, love letters,
financial information, and medical records, was once locked in a drawer
at home, but is very likely these days to be found on “the cloud.” The indi-
vidual may well be unaware whether his personal information is stored
on his hard drive or in the cloud, and he may be further unaware of the
difference it makes in terms of ease of access by others and legal protec-
tion of privacy. The law requires a warrant for the government to tap a
phone under most circumstances. In the past, in the days that all phones