Page 84 - Privacy in a Cyber Age Policy and Practice

70 PRIVACY IN A CYBER AGE

communications, without a warrant, but that they may access unsealed
communications such as postcards. 71
The Court has also recognized that automobiles moving through public
space may be protected against certain kinds of government intrusions.
In United States v. Jones, for example, the Court ruled that installation of a
GPS monitoring device on the defendant’s car without a valid warrant con-
stituted a physical trespass on Jones’s effects, even though the car was in a
public space when the GPS device was installed. In so doing, the majority
recognized protection against government intrusion into non-home but
home-like roving objects.
In short, Katz and the cases that followed provided precedents for
moving beyond housing exceptionalism and beyond associating the highest
level of privacy with the “inviolate home.” However, as we have seen, the
Court has largely maintained the distinction the home (and home-like
spaces) and the public realm.

F. Introducing the Personal Sphere of Privacy Standard

To define a personal sphere of privacy, it is necessary to lay out criteria for
determining which behaviors are encompassed in the sphere, and which are
to be excluded. These criteria are needed to replace the role played by walls
in the home-centric privacy doctrine. That is, drawing a clear line between
protected and unprotected behavior (or at least more and less protected
behavior); in other words, marking the boundaries of the sphere of privacy.
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Three criteria come to mind : the volume of information collected, its
sensitivity, and the extent to which it is “cybernated”—that is, the extent to
which the information is stored, combined with other information sources
(“collated”), analyzed, and distributed. Each of these criteria should be con-
sidered a continuous rather than dichotomous variable, and they should
be considered jointly when determining whether a particular government
action constitutes a privacy violation.
Volume concerns the total amount of information collected about one
person by one agency or actor. It encompasses two components. The first
of these is the quantity of information collected. Quantity is measured in
number of e-mails, phone records, text messages, or, better, megabytes of
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information. The second component is bandwidth, a term here used to
refer to the collection of different types of information from or about a
single subject. (For a more complete discussion of the concepts of quantity
and bandwidth, see Chapters I and II.)
In Jones, Justice Alito held that the collection, which lasted 28 days, was
too long. Of course, the courts have ruled that a person cannot be held
longer than a given number of hours or days without being charged. And