Privacy In Public

Time Mag. 3/2/12

By Massimo Calabresi

 the streets of New York City in 1949, E.B. White observed that a person could find the "gift of privacy" amid the crowds. More than 60 years later, the U.S. Supreme Court decided that White's paradox may literally be true. On Jan. 23, the court said the FBI violated the Fourth Amendment's guarantee against unreasonable search and seizure when it used global-positioning-system signals to track a suspected drug dealer for four weeks without a valid warrant, even though the cops monitored only where the suspect went on public streets. Thanks to that decision, for the first time in American history there is now a legal right to privacy in public.

How much privacy? That's still in flux. In the GPS-tracking case, the Justices couldn't decide how much protection the Constitution gives Americans in public; they could agree only that the FBI had gone too far. But cases are coming up that will define the new privacy more clearly, and state and federal officials are working to fill in the contours.

In a pending case from Texas, the Fifth Circuit Court of Appeals will decide whether the police have the right to search, without a warrant, historical data from cell-phone companies showing the movements of phones' owners. Senator Al Franken of Minnesota has introduced a bill that would limit what wireless carriers can do with GPS data. "People have a fundamental right to control their private information," Franken said. On Feb. 22, the White House unveiled privacy guidelines meant as a blueprint for legislators and companies struggling to agree on how and when Americans can be tracked in public on the Internet.

The idea that we have any privacy in public is new. Over the years, the courts have found that Americans voluntarily gave up their Fourth Amendment protections almost as soon as they left their homes: garbage dropped at the curb was fair game for the cops, and--though you may not have contemplated your phone company's sharing its files--information given openly to businesses was deemed public knowledge too. But now, as cell phones, GPS devices and Web browsers generate massive amounts of digital information about us and make it available to others, the minute details of what used to be our private lives are collected and stored as never before. The McKinsey Global Institute recently estimated that 15 out of 17 sectors of the U.S. economy have more data stored per company than does the Library of Congress, and in the U.S. health care market alone, there is potentially $300 billion in annual value to be squeezed from those vast stores, McKinsey says. The upshot: much of this information from our daily interactions with retailers, communications companies and service providers is available not only to private companies that can make money off it but to law enforcement as well.

In the GPS case, the Supreme Court Justices found two things to worry about. First, they were concerned about how much information was being collected. The government's ability to track citizens "24 hours a day anyplace you go that's not your home" without a warrant necessarily breached Americans' "expectation of privacy," Justice Elena Kagan said in oral arguments in the GPS case. Four other Justices agreed, including the conservative George W. Bush appointee Samuel Alito. Justice Sonia Sotomayor went further, saying Americans aren't worried just about how much information about them is collected but also who gets access to it, even if they appear to waive their right to keep it private. "I for one doubt that people would accept without complaint the warrantless disclosure to the Government [by an Internet-service provider] of a list of every Web site they had visited in the last week, or month, or year," Sotomayor wrote.

The Justice Department and other law-enforcement officials argue that once cops have probable cause to think a crime is being committed in public, they shouldn't have to get a warrant; in any case, they say, most Americans are happy to give up their privacy in exchange for safety or to save time or money. The law is still largely on the cops' side.

Five Supreme Court Justices found in the GPS-tracking case that it was Americans' expectations of privacy that would define what privacy should be: if you and most of your friends are comfortable revealing details of your daily life in public, you'll be setting the legal bar for privacy low. And the fact is, Americans do want some of what they're getting in exchange for technology's intrusion into their private lives. Anyone who's avoided a rush-hour bottleneck thanks to traffic-monitoring software can see the benefit of instant analysis of shared GPS signals. Airport body scanners aside, the post-9/11 era has seen the growing use of technologies like security cameras and facial recognition in public places, with little backlash from citizens.

Still, as the Supreme Court suggests, drawing lines is important because the data banks keep swelling, making their contents irresistible to some. In December a company called Carrier IQ said the FBI had asked for access to data the company collects from software installed on more than 141 million cell phones, including what numbers and text the owners type in and where the phones, and their owners, go. On Jan. 19, the FBI's Strategic Information and Operations Center asked tech companies how much it would cost to build software that would search, monitor and report on individuals using Twitter, Facebook, Myspace and other websites. The FBI is rolling out facial-recognition software to check individuals against criminal databases; the Department of Homeland Security already uses facial recognition at major public events like the Super Bowl.

Once outsiders can use that data to create what Chief Justice John Roberts called a "mosaic" of who you are, the pressure for safeguards may grow. All the technology is delivering to us in public not just the gift of privacy E.B. White wrote about but the right to it as well.