Creepin’ on your Internet, Surfin’ over your Shoulder

When it comes to the internet, you are never alone. Nor, for that matter, is anything you do or say really private. At its most basic level, the internet now functions as a phone call to the world, telling it exactly what you are thinking, buying, listening to, and reading. And for most people this is the best part of the internet. They can log in to their social media account and announce their inner-most thoughts, tell that funny story about the co-worker with the crazy cats, or share the cutest baby photos in the blink of an eye. Yet for all the willingness to share every instant of your life, the price you pay for this ability is steep: your right to privacy. The Fourth Amendment guarantees that individuals, their homes, and their papers are protected from unwarranted search and seizure. But now that everyone lives their lives simultaneously off- and online, there is a question of how much privacy we really expect online when we share everything anyway?

The Supreme Court has yet to answer this question directly. In Katz v. United States, the Supreme Court held that because society recognized an expectation of privacy while in an enclosed telephone booth, the recording of telephone conversations inside from microphones planted on the outside violated the Fourth Amendment.389 U.S. 347, 353 (1969). The Court found that the Fourth Amendment protects people, not places, which goes hand in hand with its acceptance of the fact that society recognizes that privacy can exist in public places, like the enclosed telephone booth at issue in the case. Id. at 351. The recognition that privacy wasn’t attached to a stationary object, like a house or apartment, but traveled with an individual, was a novel idea that has helped to shape some of the current concepts of privacy that we have today. And while you may not expect privacy in a phone booth anymore because they are, for all intents and purposes, defunct, thanks to this opinion you might have a reasonable expectation of privacy in the contents of your cellphone. Maybe.

In Kyllo v. United States, the Supreme Court found that the warrantless search of a private home through the use of infrared cameras to detect the presence of marijuana growing violated the Fourth Amendment. 533 U.S. 27, 40 (2001). The Court’s opinion in Kyllo though hinged on the belief that the Fourth Amendment “draws a firm line at the entrance to the house.” Id. This was a step back in terms of privacy because the Court retreated to a position where privacy afforded to individuals depends upon the location of the search. While expectation is still part of any analysis of whether a search or seizure implicates the Fourth Amendment, after Kyllo the conception of privacy afforded individuals seems rooted to the home and traditional conceptions of private places.

So what does this mean today, eleven years later, when we, as a society live almost as much of our life online as we do offline? The answer is unclear. Many would presume that because certain social websites allow you to make certain aspects of your online profile “private” that this gives you, the user, some sort of privacy. But the truth of the matter is that the second you connect to the internet, your expectation of privacy is being undermined (unless you have employed one or more of the nifty anti-tracking tactics discussed in this New York Times article). The distinction between the phone booth in Katz, the private home in Kyllo, and an individual’s activities on the internet boil down to one simple fact: a user of social media and email puts information out there to be read by at least one other person. The act of communicating to someone on these sites seems to undermine the very expectation of privacy that society has come to expect. In fact, the mere fact that an individual is talking with someone else further weakens the expectation of privacy because it is difficult to control what another person will do with private information. True, there may be a difference between posting a status update for only certain friends or family to see as opposed to posting the same sentiment on a public message board or on the front page of a well-traveled website. But that difference may be more artificial than actual because of one detail: the user voluntarily put that information on the web to be seen. When phone booths existed, the recognition of privacy while using them was simple to understand: a person went in, shut the door, and had a conversation away from the prying ears of the public. And the same rationale applies to a person’s home: what people do there is done away from the eyes of the public.

When the Court eventually deals with this issue, and at some point it will, the question will turn on what kind of expectation of privacy a user has in a post they have voluntarily put out on the internet to be seen by others. It will also turn on whether the Court recognizes that with an individual’s online and offline lives seamlessly merging into one, the expectation of privacy must depend less on society’s expectations in physical places and more on society’s expectations of privacy in electronic media and communication. But with people sharing more and more of their ostensibly private lives online, the real worry is this: does anyone actually expect privacy online?