Public Lives

Is privacy in its death throes?

If so, the Founding Fathers are rolling over in their graves—when they penned the Fourth Amendment to the Constitution, protecting citizens from searches performed without probable cause and a warrant, they enshrined privacy as a defining feature of American democracy. The rise of the information age, however, has marched privacy up to the gallows and threatened to tighten a noose around its neck.

In the 1967 case Katz v. United States, the Supreme Court devised a concept that remains the go-to reference for deciding whether or not the government has performed a search that triggers the requirements of the Fourth Amendment: the reasonable expectation of privacy. The test is two-fold. First, an individual must have displayed an objective intent to keep whatever the government uncovers to him or herself. Second, the government’s actions must conform to a societal understanding of what doors should remain closed and what doors the government should be allowed to fling open.

The reasonable expectation of privacy test renders U.S. citizens particularly vulnerable in an era of rapidly advancing technology. As new invasive techniques of surveillance become more common and accepted, what once were reasonable expectations of privacy become unreasonable.

Take drones, for example. Even if they can’t constitutionally kill Americans not engaged in combat on American soil (thanks for the clarification, Mr. Attorney General), drones certainly pose other threats to United States citizens. Sometimes larger than real airplanes and other times smaller than toy ones, unmanned aerial vehicles whiz through the air not only to nab terrorists overseas, but also to aid in domestic surveillance operations on our own turf. In fact, the Federal Aviation Administration predicts that 30,000 flying electronic spies will loom over the nation as soon as 20 years from now.

Like most technological advances, drones have the potential to effect positive change. Their capacity to record video and produce heat maps makes them useful in locating criminals, missing persons, and bombs alike. But many Americans today fear, maybe justifiably, that unmanned aerial vehicles could find and monitor them without due cause and without any chance of their noticing. So where does the government draw the line? Is aerial surveillance without suspicion or a warrant constitutional?

According to the Supreme Court, that depends. In Dow Chemical Co. v. United States, the Court held that the Environmental Protection Agency did not violate the Fourth Amendment when it employed a commercial mapping camera to spot a chemical plant from above without a warrant. Yet at the same time, the Court noted that the use of “highly sophisticated surveillance equipment not generally available to the public” might constitute such a violation.

When a case regarding the constitutionality of warrantless drone monitoring inevitably makes its way up to the Supreme Court, perhaps the precedent set in Dow Chemical Co. will hold some weight. Drones undoubtedly qualify as cutting-edge technology, and your average citizen can’t hop on Amazon to order one. On the other hand, that understanding eventually will change. After all, many kids today likely take the internet for granted. They can’t imagine a world without it, but it wasn’t long ago that their parents couldn’t imagine one with it.

When Americans begin to think of drones not as unsettling earmarks of a brave (and scary) new world but rather as familiar fixtures in their lives, the government’s using them to watch over citizens will fall in line with social norms. Then, if the Court continues to apply the reasonable expectation of privacy test, its Justices very well might deem warrantless drone monitoring an acceptable and even expected practice.

The Founding Fathers wrote privacy into the Constitution for a reason. The United States was formed as a haven for individual liberty in response to an oppressive foreign regime, and the Fourth Amendment safeguards that freedom. The amendment guarantees a private sphere outside government purview in which we can express our ideas, beliefs, and relationships without fear of scrutiny or judgment. In order to preserve the critical protection the amendment provides, the Supreme Court must develop a new legal test for when the government has performed an illicit search, a test that prevents privacy from withering away little by little, technological development by technological development.

Privacy may be ailing, but it’s not dead yet. Let’s keep it that way.

Molly L. Roberts ’16, a Crimson editorial writer, lives in Holworthy Hall. Her column appears on alternate Thursdays. Follow her on Twitter at @mollylroberts.