In last month’s United States v Jones Supreme Court decision invalidating warrantless surveillance using GPS tracking, Justice Sam Alito mused that there is a privacy-convenience trade-off, and that people may be willing to sacrifice some of their privacy for the convenience that technology provides.
Since the 1960s the Supreme Court has relied on the reasonable expectation of privacy doctrine to determine whether government action was a search under the Fourth Amendment. To determine if a particular government action was subject to the Fourth Amendment as a search, the Court had to determine if a person had put forth a privacy claim — a subjective expectation of privacy (for example, I have a personal or subjective expectation of privacy) that the government will not put a tracking device on my car and follow me around 24 hours a day). That expectation is then measured by a determination of whether ”that expectation is one that society is willing to recognize as reasonable or legitimate?” I have to put forth a privacy expectation, and it has to be one society (or really five Supreme Court justices) accept as reasonable.
Writing in Jones, Justice Alito suggests that the reasonable expectation of privacy test
rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.
Technology does change, and we do live in a world of social networks; a world where we choose to share a lot of information about ourselves; we live in a world where we take advantage of things like the GPS in our phones in order to easily find ourselves on a map, or to do a search which creates localized results. But just because technology changes, and we choose to put some parts of ourselves out “in plain view” does not mean we have to sacrifice our privacy for convenience sake. We should NOT reconcile ourselves the diminution of privacy as inevitable.
Until now, if you had google’s web history turned on, google could use that to customize search results, and you could go into your web history and find earlier searches and earlier pages you visited. Yet, this data was sandboxed away from all other google services. It was in a walled garden. As the Electronic Frontier Foundation points out
this protection was especially important because search data can reveal particularly sensitive information about you, including facts about your location, interests, age, sexual orientation, religion, health concerns, and more. If you want to keep Google from combining your Web History with the data they have gathered about you in their other products, such as YouTube or Google Plus
But now it is all linked together. And it is easy for law enforcement to knock on Google’s door for this information. And often times, without a warrant based on probable cause. As I said, I have absolutely nothing to hide — BUT my privacy is not predicated on secrecy. Nor is it cancelled out by convenience. Yes, Google services provide convenience. And yes, from time to time, my web history has been valuable as I try to find something. But in this instance, I decided to go into my google account, select www.google.com/history and delete – and turn off – web history. I did the same thing with my You Tube search and viewing history (through the You Tube Video Manager).