10/15/10

Yes, Virginia, There Still Is Privacy

I’ve been watching a disturbing trend. More and more people are laconically letting the likes of Facebook, Google, Amazon, Twitter and FourSquare taking over their lives. I admit. I am as much a victim, perhaps even more of a victim, than you are. My excuse is that it’s my job. But what about the rest of the world? Have we become so used to the entertainment value of being connected to the internet that we have forsaken our right to privacy? Are we so driven by “ease-of-use” that we are willing to let the likes of eBay, Continental and Amazon into the privacy of our homes? Will we, as a nation, place so much value in our desire to be connected to one another that we are willing to forfeit what many perceive to be an inherent right? But first a history lesson. The right to privacy is not in the U.S. Constitution. Nor is it in the Bill of Rights or the Declaration of Independence. Yep, its true. The right of privacy didn’t make its way into our collective conscience until Justice Brandeis issued his ground-breaking dissent in the 1928 case of Olmstead v. United States. This criminal case swirled around the admissibility of a wiretapping. In a somewhat prophetic analogy, he compares the act of wiretapping to the act of tampering with someone’s mail and says, “the evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails." You’re thinking to yourself, “well, I’ve got mail. Tons of mail. An inbox full of e-mail.” Brandeis goes on to talk about the peril of not subjecting our government to the same rules of conduct that we expect of our citizens. I suggest we take Brandeis’ point one step further: we should hold our corporations to these same rules of conduct. We could be taking these companies like Twitter, Facebook and Google to task for spreading our likes and dislikes to the four corners of the winds and ads are chasing us from online store pillars to online posts. But the real problem is those darned EULAs. In our rush to gain access to our Gmail and one-click ordering on Amazon, we have clicked through those end-user agreements without even reading them. GASP—yes, I, a lawyer, don’t even read the fine print. Daily, we are forfeiting our right to privacy. Incrementally, injudiciously and surreptitiously, we are handing the biggest companies in the world our personal information. And we don’t even care. Have we become so comfortable in this Oprah-confessing world that we have no problem baring all before God and man? Have we decided that there is no shame in ripping off the fig leaves from Adam and Eve? Are we comfortable letting everyone know what we think, feel and believe? And is this such a bad thing? I don’t know. Maybe the right of privacy only exists in my imagination. But then isn’t that really the crux of it? That privacy is a concept that we created in our own minds—that nothing is truly private once a thought is created, vocalized or expressed? For I see that if we do let go of our right to privacy, the next right to be abandoned would be the right of creation. Yes, the rights of intellectual property. So with that, dear reader, is where I will leave you. I have no answers. Only my muddling mulling. And, so at least for today, I would tell Virginia, “yes, there is a right to privacy.” Photo by woodleywonderworks

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