Privacy SOS

Does awareness of pervasive monitoring preclude our “reasonable expectation” to have privacy?

A new Pew study shows that Americans overwhelmingly feel concerned about their lack of personal privacy in the digital age. People are aware that government and corporations are tracking them, and they don't like it, the study says.

After I sent that link around to my colleagues, one of them replied, raising an issue I've worried about in the wake of the Snowden disclosures. "What if the government tries to use a study like this to show that people don't have a reasonable expectation of privacy in certain information, and therefore it won't be protected?" (If you're lost here, see the Katz decision.) It's a good question, but recent federal court precedent suggests we don't have to worry that the FBI will succeed in court if it claims that we have no privacy rights because we know the government is spying on us.

My colleague Jessie Rossman dug into the details of the Klayman decision last winter, and highlighted this:

[In Klayman, Judge Leon] confirmed that the Government cannot unilaterally destroy our subjective expectations of privacy. To raise a Fourth Amendment claim, plaintiffs must show that they have both an objective and subjective expectation of privacy in the item or data that was searched. Here, the Judge stated that he had no reason to question the plaintiffs’ allegations that they held a subjective expectation of privacy in their telephone metadata. He went on to explain, however, that if they had lacked a subjective expectation of privacy in such information, he “would likely find that it is the result of ‘condition[ing] by influences alien to well-recognized Fourth Amendment freedoms.’” He described further

The point is, however, that the experiences of many Americans – especially those who have grown-up in the post-Smith, post-cell phone, post-PATRIOT Act age – might well be compared to those of the ‘refugee from a totalitarian country unaware of this Nation’s traditions [who] erroneously assume[] that police were continuously monitoring’ telephony metadata. Accordingly, their ‘subjective expectations obviously could play no meaningful role in ascertaining . . . the scope of Fourth Amendment protection,’ and ‘a normative inquiry would be proper.’

In other words, the Government cannot trample our Fourth Amendment rights for years and then claim that such behavior is constitutional because the people now expect such violations to occur. As Judge Leon made clear, the Fourth Amendment continues to provide protection when it is the Government’s repeatedly unlawful actions that caused us to lose our subjective expectations of privacy.

Spies can be sneaky, and they often get away with a lot in courtrooms. But let's hope other judges follow Leon's lead and dismiss out of hand any future government claims to the effect that knowledge of one's lack of privacy precludes a right to the possibility of any.

© 2021 ACLU of Massachusetts.