Happy Independence Day!
On this, the birthday of our great nation, perhaps it is a good time to look at the ways in which our nation has changed since those heady days 200 years ago when the Founding Fathers sat day to forge it. Many things have changed, from the way we travel, to the way we live, even the things we spend our time thinking about. How would this impact what they put into the Constitution? Hard to tell for sure. But it certainly is worth thinking about, especially on Independence Day.
What It Was/What It wasn’t
It is impossible to theorize correctly what they might think about the role of social media in our lives today, or even whether they would have given it another thought. In those days personal freedoms were considered secondary to the rights of the nation as a whole to exist. That is very different from what we expect from our Constitution today, though it wasn’t intended that way.
Today we celebrate the 235th anniversary of the signing of the Declaration of Independence. It got me thinking about how our American commitment to life, liberty and the pursuit of happiness applies to today’s high-tech, fast-paced, social-media world, especially for privacy and speech rights.
So let’s drill into this right to privacy, a subject that has captured national attention lately in both the mainstream media and Congress. The Constitution provides for no such privacy right among us citizens. The Bill of Rights does offer privacy protections from the government. The Third Amendment protects our homes from government intrusion, and the Fourth Amendment protects our homes from unreasonable government searches and seizures.
But the Constitution doesn’t provide for privacy protections among our fellow citizens. For that, we’re largely left to the common law. This more pedestrian, common-law idea of privacy was discussed in “The Right to Privacy” (Harvard Law Review, 1890) by the future Supreme Court Justice Louis Brandeis and partner Samuel Warren.Warren and Brandeis quote from an 1880 treatise by Michigan Supreme Court Justice Thomas Cooley who introduced a “right to be let alone” in the context of common law torts — basically the 19th-century version of “don’t tase me, bro.”
So, privacy embodies an essential value of discretion — the expectation “to be let alone” by government and citizen. Of course, in tension with this value is a value of disclosure, embodied by the First Amendment, which guarantees freedom of press, individual speech and peaceful assembly.
It is within this uniquely American tapestry that we grapple with the deluge of new technological devices and social media. Should we have the right to have ourselves erased from the Internet, surf without being tracked, make an unrecorded phone call or conduct an anonymous search? As parents, how do we balance the responsibility to keep our kids safe online with respect for their privacy?
The good news is that we’ve been wrestling with these heady issues for 235 years, and this discretion/disclosure heritage can really help.
For example, when it comes to “smart grid,” I’m a privacy-conservative. Smart grid is a set of technologies that monitors the power usage of the appliances in our homes. Frankly, my home (and body) are places of the highest discretion. How much time I spend staring at the fridge with the door open is my business. In the home, discretion rules, period.
But when in public, disclosure is king. I was leaving a baseball game a few weeks ago, and a woman was taking pictures of the fans as they left the stadium. In today’s world, I would expect my picture to be uploaded, tagged and available to anyone online. It’s the Internet equivalent of the small-town refrain: “Hey, did you see Jim at the game?”
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