SEARCHING FOR A RIGHT TO PRIVACY SCOTUS CANNOT SEIZE

The exponential advances in technology, globalization and the public’s dependence on digital media, all attribute to the proliferation of private and public information in cyberspace, diminishing the de facto privacy of people. Along the years, SCOTUS has identified and developed the right to privacy relying on the constitution, namely on the Fourth Amendment, which does not explicitly state the word privacy let alone provide a comprehensive definition thereof. Such casuistic reasoning created distinctions between private and public spaces, personal information and third-party data, content, and non-content and of domestic and international, which all were appropriate at the time, but are crumbling in the wake of a new hyper-digitized and globalized era. I argue that the solution to this problem should be given and constituted by the legislator rather than the Court.

The different Amendments to the Constitution provide specific privacy-related guarantees organized by subject matter, all of which were constituted over 200 years ago, and rely on old convictions and a different reality which the founding fathers were part of. Whether you are an originalist or believe that the Constitution is a living and evolving organ, applying 200-year-old text to technologies that double themselves in capacity every two years,[1] is unfathomable.

Asking the Court to interpret and insert ideas such as cyberspace into the word “place”, IP address into “people” and IM (instant messages) into “things” is more than a stretch, it is asking judges to constitute a new Fourth Amendment and outstepping their powers. The power of the judiciary should be limited to the text of the Constitution and regular legislation,[2] asking judges to redefine privacy will, in fact, violate the separation of powers between the legislator and the judiciary and make judges policy makers.[3] The gravity and scope of the required change in the Fourth Amendment and its underlining policy’s significance are well articulated in the writings of scholars: whether the constitution is defending privacy as a subjective theory of social construction, as group rights or should it be completely altered to terms of power.[4] Evidently, these questions are not questions of law, rather of policy and politics and as such should be addressed and decided upon by Congress – the representatives of the people.

A counter argument will be that realistically, though amendable, the Constitution is unlikely to change, especially in such matters that could hamper the government’s ability to provide security to their constituents.[5] My answer is Threefold: First, the U.S. is not the only country trying to balance national security and civil rights. Other countries such as Israel or European countries have the same challenges, yet still, manage to satisfy their constituents by holding to a high standard of privacy while still upholding security. Second, one should make a distinction between everyday crimes and terrorism. Whereas the latter poses a detrimental (yet less likely) danger, every-day crimes are widespread and directly affect the public. Investigating these crimes using remote digital methods collecting in bulk, begs for additional safeguards on the right to privacy; a comprehensive definition is in place, and a simple caveat re terrorism can abolish any fear of restricting the government. Third, civil liberties and the separation of powers are the pillars of democracy, if national security concerns, terrorism or cyber-crime were able to diminish and compromise them, then they already won and we are fighting for a fallacy of democracy.

To conclude, I will suggest that pressuring the SCOTUS to fix the constitution is doable, but the cost of such action will undermine the same democracy we are trying to save.[6]

[1] Moore’s Law, http://www.mooreslaw.org/.

[2] Frederick Schauer, Formalism, 97 Yale L.J. 509 (1988).

[3] Compare: Kar Llewellyn, “Some Realism about Realism”, 44 Harv. L. Rev. 1222 (1931) (law is an instrument of social policy); Duncan Kennedy, “The Critique of Rights in Critical Legal Studies,”, in Left Legalism/Left Critique (Wendy Brown & Janet Halley eds., 2002) (“Legal Argument about Rights that are Legal Rules Reduces to Policy Argument”)

[4] See Laura Donohue, The Fourth Amendment in a Digital Age, NYU Annual Surv. Of Am. L., 98 (2017)

[5] See the U.S. government’s reaction to the 9/11 attacks by legislating far-reaching and highly intrusive surveillance programs that were later leaked by Edward Snowden, WikiLeaks and more.

[6] A viable alternative to my suggestion will be following the footsteps of the LGTB movement in reaching their goals of equal civil rights. By incrementally fighting privacy cases in cherry-picked jurisdictions, in conjunction with lobbying and civil society uproar, the Supreme Court is more likely to be convinced of its mandate to enact a new policy of this magnitude.

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