The Fourth Amendment of the U.S. constitution protects people in the U.S. against "unreasonable searches and seizures." Whether a search is deemed to be "unreasonable" depends on whether the court finds that the individual had a "reasonable expectation of privacy". So government agents opening a sealed letter is an unreasonable search, but agents reading a postcard is not because no one would reasonably expect that writing to be private when it is openly visible to anyone who handles the card as it passes through the mail.
I keep thinking about that legal standard when I hear each new allegation that the government is routinely collecting information on people. Thanks to the ridiculous majority of the current Supreme Court, there doesn't appear to be an avenue for challenging the constitutionality of government surveillance right now. But I'm an optimist. I think in the long run the courts will find a way to work around its ruling in Clapper v. Amnesty International. It was just a 5-4 decision, and as the revelations data collection mount, I think its likely that the Court will eventually acknowledge that someone has the right to challenge this behavior.
But what happens in the meantime? All these revelations are are going to change the public's expectations about what is private. Google current position is shocking now, because email to us feels as private as a sealed snail mail envelope. But after this stuff gets reported and it gets absorbed into the public's consciousness, people probably are going to start thinking differently about their electronic communication. Any message that passes through an external server will start feeling more like a message written on a postcard than a private letter. The public's change in its thinking about privacy is rational because it reflects the reality of what the government is doing without any meaningful check.
That's the problem with having the limits of a constitutional right defined by the collective expectations of society. Those expectations can change, which means the extent of constitutional protections will change with them. By violating the right and then having that violation publicized during a period that it cannot be challenged in court because of a technicality, the public will expect the violations to continue. Once they have that expectation, it won't be a violation anymore. By the time the Court finally finds it way around Clapper v. Amnesty International, I wonder if there will be any constitutional violation left to stop.
I keep thinking about that legal standard when I hear each new allegation that the government is routinely collecting information on people. Thanks to the ridiculous majority of the current Supreme Court, there doesn't appear to be an avenue for challenging the constitutionality of government surveillance right now. But I'm an optimist. I think in the long run the courts will find a way to work around its ruling in Clapper v. Amnesty International. It was just a 5-4 decision, and as the revelations data collection mount, I think its likely that the Court will eventually acknowledge that someone has the right to challenge this behavior.
But what happens in the meantime? All these revelations are are going to change the public's expectations about what is private. Google current position is shocking now, because email to us feels as private as a sealed snail mail envelope. But after this stuff gets reported and it gets absorbed into the public's consciousness, people probably are going to start thinking differently about their electronic communication. Any message that passes through an external server will start feeling more like a message written on a postcard than a private letter. The public's change in its thinking about privacy is rational because it reflects the reality of what the government is doing without any meaningful check.
That's the problem with having the limits of a constitutional right defined by the collective expectations of society. Those expectations can change, which means the extent of constitutional protections will change with them. By violating the right and then having that violation publicized during a period that it cannot be challenged in court because of a technicality, the public will expect the violations to continue. Once they have that expectation, it won't be a violation anymore. By the time the Court finally finds it way around Clapper v. Amnesty International, I wonder if there will be any constitutional violation left to stop.
