While the Constitution does not specifically mention privacy, it has been historically believed, if not validated in principle and in the law, that several of the initial amendments to the Constitution, namely the Bill of Rights; protect aspects of a person’s privacy in whole or in part been part. When taken together, these rights provide a comprehensive system of privacy protections that run the range of privacy issues from choosing whether or not to have a baby to the legality of the National Security Agency’s (NSA) bulk collection of the metadata used by millions of American mobile phone users. To be sure, in terms of the classic privacy rights issue, namely whether the state’s duty and responsibility to protect the state and the community’s security outweighs the right of individuals to be free from “unreasonable” invasions of their privacy, modern times and technology has made privacy an important and continuing concern of state officials, rights advocates and the general public.
In terms of the modern information society; the Fourth Amendment is the primary constitutional provision implicated in the question of whether privacy can be protected or not. Privacy here refers to the Constitution’s guarantee that a person is guaranteed, in the least, a prohibition against the government’s “unreasonable” search of their “persons, houses, papers and effects”. The United States Supreme Court, has historically held that unreasonable, generally speaking, occurs when the government initiates a search without probable cause and a warrant provided for by a neutral judge (Cole, 2015). In addition, the Court has refined its findings by stating that where either: (1) a person has a reasonable expectation to privacy that society finds reasonable, or (2) the targeted action occurs in a space that the Court has traditional ruled to be off-limits, such as one’s home, is unreasonable without a warrant. The point is that with modern information technology, the state can perform applicable “searches” in a manner that can, under the Court’s Fourth Amendment jurisprudence, validly invade a person’s “private spaces” such as their houses, papers, and effects without recourse from the law (Greenwald, 2014). Furthermore, current laws also seem to suggest that personal information technology standards such as the trend of storing one’s personal information with a third party, such as one’s Internet service provider or hardware manufacturer, does not provide that same constitutional protections as past explorations of this right have guaranteed.
Over the last five years, these issues have increasingly been among some of the most hotly debated topics of the day. For instance, in 2013, former NSA contractor Edward Snowden revealed for the first time, the extent and reach of NSA’s electronic surveillance of not only the average, ordinary, American citizen but also the agency’s ability to “reasonably” and, without violating a person’s “protected areas”, comprehensively access one’s private information (PBS, 2015).
The current situation is not an issue without a past. To be sure, over the last 100 years people have feared the day when technology would advance to the point that where the government could use it to get around legal limits on its powers of surveillance. Indeed, perhaps the best summation of this concern was expressed in the 1949 novel by George Orwell entitled 1984. The key element of Orwell’s novel was how mass government electronic surveillance worked to impose absolute obedience to government authority.
While it is unlikely that Orwell, if he were living, would support current government electronic surveillance; it is also most likely that he would not feel that it is shocking or altogether as treacherous as what he wrote about in 1984. This is because, firstly, the current system, by all indications, is not as advanced as that in the novel. To be sure, while government agencies can, and most likely do, access a large range of information, it cannot as in the novel knowingly install one-way television sets (Orwell, 1949). Second, while the Supreme Court has allowed significant discretion in what the government may do to stop foreign attacks, it has not reached the point where the government is permitted to install television in every person’s home that can spy on them or where the mainstream media is simply just the government’s mouthpiece.
Still, there is much there is much that would give Orwell cause for concern. First, based on the architecture of computer networks, it is believable that the government has the ability to initiate total and comprehensive access to our electronic surveillance. Second, based on test of current opinions, it seems that many in the public agree that the government should have the ability to access our electronic communications. Third, our increasingly reliance on information technology, provides the government with increased opportunity to access our personal and private information. Indeed, only a few companies are willing and able to fight the government as Apple, Inc. is currently doing.
As a result, if Orwell could have a say, he would most likely warn the nation to “be very afraid”. This fear, he would say is based on the principle that if society is not careful, sooner rather than later, the government will install the oppressive regimes that were normal in 1984. Moreover, Orwell would probably argue that there is plenty of means to limit the rise of the surveillance state such as informing the public about the issues and getting their representatives to take the necessary steps to build in protections with each passing bill or amendment to an existing bill.
Reference
Cole, David. “Is Privacy Obsolete?” Nation. thenation.com, 23 Mar. 2015, Web. 28 Feb. 2015. http://www.thenation.com/article/privacy-20-surveillance-digital-age/
Greenwald, Glenn. (2014, Oct.). “Why privacy matters.” PBS. pbs.org, 28 Oct. 2015. Web. 28 Feb. 2015. https://www.ted.com/talks/glenn_greenwald_why_privacy_matters?language=en
Orwell, George. 1984. New York City: Penguin, 1961. Print.
Public Broadcasting System (PBS). “Nova: Cyber War Threat.” PBS. pbs.org, 14 Oct. 2015. Web. 28 Feb. 2016.
