Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone."
Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."
A snag in the "be let alone" doctrine is citizens of a country have a duty to interact with the government that doesn't allow a person to just be let alone when he wants. When necessity demands that a person divulge personal information, does all privacy then disappear? I think it should not. Privacy can't be viewed as a binary option. It also has to be seen not only as a limit on what can or cannot be seen, but an obligation on the part of the receiver of information not to abuse the privilege they have been granted.
But traditional law hasn't led to this conclusion. It sees privacy as an effect of location. Can a thing be seen, heard, or touched directly at the time and place that it exists? I think this is an outdated concept that is difficult to apply to an age of widespread communication and long-term information storage. I think privacy should be seen as an inherent property of a thing that doesn't change as it changes hands. My personal information is still my personal information no matter who knows it. The difference between what is private and what is public is the expectation I have when I share it with someone else.
So if I volunteer information unasked, there should be little expectation of privacy for what I say. However if I am compelled to give my name and address in order to receive a service, the default assumption should be that I want that service alone and no one not required to know it for that purpose should be privy to the knowledge.
It becomes more critical when dealing with legal obligations. The right against self-incrimination applies so if I am required to give personal information by some law, it should not then be used as evidence in a criminal investigation. But that's what happens in the current environment where information you're required to give the government gets entered in the public record with no expectation of privacy and is subject to be queried by law enforcement at any time. It forces a situation where in order to fully exercise your right to remain silent against self-incrimination, you have to live as a hermit avoiding all contact with the government.
Actually, I think there is a bit of common law that applies: the idea of trespass. An unlocked door is not an invitation to entry. Why should an unencrypted message be treated as an invitation to read? Yes, I realize that would reverse the geek-friendly precedent that anything broadcast on radio waves is free to listen to. But that's the libertarian's dilemma: an enforcement of one person's freedom may infringe upon another person's freedom.
I think the benefits of increased security for communications can outweigh the restrictions on radio scanners. We're already partly limited anyway because of copyright and electronic eavesdropping laws. Though I'd feel less trepidatious if our government didn't have a habit of outlawing tools that could be used to commit a crime as an alternative to actually enforcing the crime.
You're touching on this but the importance of tangible vs intangible property cannot be understated. In Katz v United States:
"Because the Fourth Amendment protects people, rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. "
https://supreme.justia.com/cases/federal/us/389/347/
That sets a good precedent but gets destroyed in Smith v Maryland
"Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone, rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information"
https://supreme.justia.com/cases/federal/us/442/735/case.htm...
That's where things get fucked up.
Simply because you use a service means that you assume the risk that the company would reveal that information. Privacy is not guaranteed as soon as you use a service - setting the precedence for NSA mass surveillance. Unfortunately, these laws were passed when the fact that everyone you know, interact with, and communicate with is in your pocket all the time.
It's not quite the same as legitimizing the sharing of information by a third-party. By saying it is a "risk" there is the implication that it is outside the contract the customer has with the telephone company. So I think it contradicts itself by first saying he should not have expected privacy then saying the loss of privacy is a risk. If there's no expectation of privacy then where is the risk? There is an expectation but there is also a risk and if the information is divulged (against the customer's wishes) then any further expectation of privacy disappears. This is what happened with those leaked celebrity photos; the initial hacking was illegal, but publishing the photos after the leak was not.
The salient issue the case demonstrates is that if the police read the numbers from his phone directly, that would be an illegal search. But because it was the telephone company that divulged the information, even if that was a breach of privacy, it does not invalidate the use of the information as evidence because although the police received the benefit from the information they were not the ones who breached the privacy. So there was no loss of privacy as far as the fourth amendment is concerned; that only applies to police and not the telephone company. If he has a problem with the them giving the information out he can sue. Except, of course, congress has also given telephone companies immunity.
And as more government work gets outsourced to private contractors there are more avenues by which law enforcement can do this privacy-two-step-tango and collect admissible evidence without warrants. Or, at least, using much easier to obtain warrants. Isn't that what one of the concerns with CISA is? That it lets private company collect information that may be used in court? Do these companies have to obey the fourth amendment?
Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."
124 years later, still relevant.