No one disputes the necessity of photographs and video in the apprehension and conviction of criminals, but the case of Williams v. City of Minneola highlights the potential for abuse by members of a government agency in the use of surveillance. Although the family was ultimately denied any recompense, the court determined that “…reckless infliction of emotional distress can lie for outrageous conduct involving pictures of a dead body.” (Mills 253). Mills points out the importance of this case because it grants a right to privacy for family members and allows them to bring a claim for reckless acts.

In our technological, modern era, the idea of privacy is so broad that to have a meaningful discussion of it, it first should be defined. Scolio, in his book Transforming Privacy: A Transpersonal Philosophy of Rights, divides privacy into four categories: physical, decisional, informational, and formational. Physical privacy indicates that one has control over one’s home as well as one’s body. Decisional privacy relates to personal control over one’s choices, and with the modern development of this category came the phrase “the right to privacy” which first appeared in the Supreme Court case Griswold v. Connecticut in 1965 (“Privacy, right of”). Informational privacy concerns the control of information about a person, including information kept in computer databases. Finally, formational privacy refers to the right of the mind “to be left alone” from the onslaught of media, advertising and mass culture. (Scolio 2.) The issue of privacy and government surveillance needs only concern itself with the physical and informational categories.

The history of privacy in America goes back to colonial times and the social conditions which led the authors of the Bill of Rights to include the Fourth Amendment. It reads “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” (Taslitz, 6.) The searches of homes and seizures of papers and effects of persons were authorized primarily by the English authorities under laws such as The Stamp Act of 1765, which “levied a tax…on nearly every form of paper used in the colonies.” (Taslitz 24). Mobs of American colonists responded to the passage of the act with riots which eventually brought about a repeal. Taslitz suggests that while the riots were aimed at the tax itself, a large part of the anger was due to the history of the English authorities who would search people’s homes for smuggled goods, on which, of course, no tax had been paid.

Privacy in the digital age

Where the Fourth Amendment was concerned with the physical privacy of the home and personal effects of a person, the notion of informational privacy came about as a result of the technological advances which began in the Industrial Revolution and culminated in the invention of the computer. The development of photographic film by George Eastman and scientists at Kodak in 1888 made the previously cumbersome development of photographs available to the masses. The camera was now available for use in surveillance and the photograph as evidence in the courtroom. Once Alexander Bell’s telephone, invented in 1877, became the norm in every household and office, it was now possible for another person to surreptitiously eavesdrop on previously private communications.

The modern electronic computer began as an entirely mechanical machine that came into use in response to a particular problem of the U.S. Government in the 1890’s. Prior to that decade, the immense growth of industry and a rapidly changing population due to immigration made effective national government a challenge. (Agar 147.) The 1880 census had taken 7 years to tabulate by hand, and it was expected that the 1980 census would take even longer. In response to a competition announced by the census director, Herman Hollerith offered a machine that would sort and tally information stored as holes punched into cards. Finally, in 1971, Intel Corporation developed the microprocessor, an entire computer on one small integrated circuit or chip which made the personal computer and the Internet possible. Thanks to the ubiquitous use of computers in business and government, the police are now able to instantly track the use of a credit card, for example.

The issue of privacy and government surveillance is controversial and generates heated emotional debate because of the potential for great harm. Lack of security can result in injury, loss of property, and ultimately death. Intrusion of privacy can inflict emotional distress and destroy reputations, relationships and careers. The following four articles each highlight one aspect of the delicate balance between privacy and security and present an argument somewhere between granting government greater latitude in providing security or instituting tighter controls for protecting privacy.

Do we need a new privacy amendment?

The most neutral approach is presented in Orin S. Kerr’s “Do We Need A New Fourth Amendment?” This article was written as a response to Christopher Slobogin’s book Privacy at Risk: The New Government Surveillance and the Fourth Amendment. Slobogin argues that two types of surveillance are currently unregulated by the Fourth Amendment: public, such as closed circuit television, and transactional, which he defines as access to bank, telephone and business records. Slobogin’s proposed changes to the amendment depend on the degree of the intrusiveness of the surveillance. Whenever current law does not address a particular situation, Slobogin believes that the courts should turn to public opinion surveys to determine how intrusive any surveillance would be. Kerr argues that making legal proceedings dependent on public opinion weakens the law and that “measuring intrusiveness does not actually measure how much a [surveillance] technique infringes on civil liberties” (Kerr 959). Ultimately, Kerr concludes that the Fourth Amendment as it exists is more than adequate to the task of protecting civil liberties.

Where the first article argues for the status quo from a legal perspective, the second argues for acceptance of government surveillance from a political point of view. What makes Cathy Young’s article “Liberty’s Paradoxes” especially interesting is that it admits a libertarian bias but argues the conservative viewpoint that government surveillance of private communication is necessary to protect citizens from the grave threat of terrorism. Young states unequivocally that she doesn’t “like the idea of government snooping on e-mail or keeping track of Web addresses…” However, she concludes that to address the potential for abuse of information, “…we need to recognize that…surveillance of private communication is indeed a legitimate government activity” (Young 3).

The last two articles in this casebook argue the opposite view: that government surveillance needs careful oversight and should be more restricted and controlled. “Group Privacy and Government Surveillance of Religious Services” by Travis Dumsday appeared in the philosophical journal Monist, so he approaches the issue from an ethical perspective. Like Young, he agrees that government surveillance is necessary from a standpoint of security, but he emphasizes the moral aspect of surveillance: it involves a violation (loss of privacy) and may include deception and breach of trust (in the case of a federal agent pretending to be a member of a group). Because of these violations, surveillance requires a “fairly strong justification” if it is to be done without acting unethically (Dumsday 182). This justification must be in the form of a specific indication that a crime is occurring, like a tip from a member of the community. Blanket surveillance without probable cause, Dumsday states emphatically, is morally wrong.

The final article “The Snitch In Your Pocket – Law Enforcement is Tracking American’s Cell Phones in Real Time Without a Warrant” by Michael Isikoff, unlike the other three, is a news article and presents its argument for legal control of government surveillance in a very personal manner. He begins personalizing the issue by pointing out that most of America’s 277 million cell phone users are unaware that phone companies can track them. Newer phones contain a GPS (global positioning device), while the phone call itself is routed through towers that can be used to pinpoint the origin of the call. To show the extent of the problem, Isikoff quotes Al Gidari, a telecommunication lawyer for several wireless phone companies who says that his clients receive “thousands of requests per month” for cell phone data. The article concludes with a dialog between Justice Department lawyer Mike Eckenweiler and appeals-court judge Dolores Sloviter. The judge pointed out that some governments, like Iran, would use cell-phone data to track political protesters.

“Now, can the government assure us,” she pressed Eckenweiler, “that Justice would never use the provisions in the communications law to collect cell-phone data for such a purpose in the United States?” […Eckenweiler] finally acknowledged, “Yes, your honor. It can be used constitutionally for that purpose.” (Isiskoff 2).

That brief moment in court neatly makes Isikoff’s argument for him. The potential for abuse of this type of surveillance is great.

Looking toward the future, the issue of privacy and government surveillance will continue to grow in importance. New technologies will continue to present us with newer challenges. The Department of Defense is working to develop a Total Information Awareness Program which would use new surveillance and analysis systems to protect citizens from terrorism. When this system is completed, it will provide a computerized record of a person’s entire life, including vital statistics, medical, financial, email, Internet, phone and travel records (Fischer and Green 14). The implications of such a database and the potentials for crime prevention as well as abuse are enormous. While the articles in this casebook present different arguments from a variety of viewpoints, they all agree one point: the need for judicial oversight is imperative for balancing the right to privacy and government surveillance.

Links to syllabi on this topic:

http://www.law.yale.edu/documents/pdf/Faculty/Information_Privacy_Law_Syllabus_Fall_2007.pdf

http://www.privacyresolutions.com/jmls/syllabus2002.htm

http://cyber.law.harvard.edu/privacy/

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