In a very good essay, computer security expert Bruce Schneier discusses “Privacy and the Fourth Amendment”, with a particular look at the legal concept of expectation of privacy. He brings up a point that I hadn’t heard before: that the concept is in a destructive feedback loop.
Expectation of privacy is one of the measures a court uses in deciding whether one’s privacy has been violated. If one reasonably had an expectation of privacy, the stage is set for deciding in one’s favour in an invasion-of-privacy case. When we talk on the phone, we have an expectation of privacy for our telephone conversations. When we converse in a café, we do not have the same expectation. And what about when we’re online?
But the government has attacked these expectations. For anyone who’s read the news about the Bush administration’s warrantless wiretaps, the NSA’s collection of phone-call data, and other abuses... can there still be any expectation of privacy? Could a defense attorney point to the widespread news reports and then say that we should have known, that we can no longer have an expectation of privacy?
In other words, the more our privacy is violated, the less privacy we can expect, so the more we can then be violated. It’s a scary thought, and Bruce continues the point to our Internet activities.
Read Bruce’s essay; it’s interesting.