Friday, May 18, 2012
José F. Anderson (University of Baltimore - School of Law) has posted Big Brother or Little Brother? Surrendering Seizure Privacy for the Benefits of Communication Technology (Mississippi Law Journal, Vol. 81, No. 5, 2012) on SSRN. Here is the abstract:
Over two centuries have passed since Benjamin Franklin quipped that we should defend privacy over security if people wanted either privacy or security. Although his axiom did not become a rule of law in its original form, its principles found voice in the Fourth and Fifth Amendments of the Constitution's Bill of Rights. To a lesser extent, provisions against the quartering of troops in private homes found in the Third Amendment also support the idea that what a government can require you to do, or who you must have behind the doors of your home, is an area of grave importance for privacy purposes. By our behavior as a nation, have we indicated a rejection of the liberty Franklin was writing about in our modern times? In no area has the rapid rise of technology affected our lives more than in the area of communication through computers and other devices, like so called "smart telephones."
As long as people have been communicating, there has been a desire for others to be interested in hearing what they say. Sometimes the speaker or writer desires an audience and the speaker's freedom to communicate desires protection. At other times, people intend to keep their private words private while others desire to know their thoughts and intentions. This human desire, the "right to be let alone," has both practical and legal limitations. Obviously society has its own right to protect its members from violence and keep the peace by legislating and enforcing criminal law. When technology comes into existence, law enforcement often uses it first to engage in the "competitive enterprise [to] ferret out crime." Further, the technology itself may make it impossible to permit people who desire to keep information private from achieving that goal. Among the reasons that keeping matters private has become more difficult is that the law simply cannot keep up with the rapid rise in communications technology.