First off, I should note that I like
Judge Alex Kozinski -- the chief judge of the 9th Circuit appeals court. He's almost always entertaining (some consider that to be a fault, actually) and has many fans of his choice of language
at times. Also, it's tough not to like a judge who amusingly enters himself
into a blog contest for "judicial hotties" with the following opening line in a letter: "I must say that I'm severely disappointed in the slate of candidates you have fielded for your Judicial Hottie contest. While I think the list of female candidates is excellent, the list of male candidates is, frankly, lacking. And what it's lacking is me." Also, some of his rulings really are fantastic
. However, he does seem to have a blind spot, where he starts sounding a bit like the old man screaming "you kids get off my lawn!" when he talks about
Judge Kozinski recently spoke at a Stanford Law symposium, and the text of his speech has been posted online, and in it, he admits that he's not particularly adept with modern technology -- in fact, he refers to himself as a "troglodyte." However, he then goes on to talk about how modern technology is destroying our privacy
-- but not because of the technology itself, or the government (even though he discusses both things), but in the way in which people themselves share all sorts of private info.
Certainly, much of the talk is a thoughtful examination of how privacy norms have changed over time, and the role of technology, government and culture as it happens. Here's just a snippet:
I flew here today from Los Angeles. I drove to LAX, landed at San Jose Airport and a student drove me to Palo Alto. Who knows this? Big Brother knows. Why? Because I carried my cell phone, and who doesn’t carry a cell phone nowadays? The cell phone logs in every few minutes to a nearby cell tower, so if you obtain the telephone company’s records, it’s pretty easy to piece together exactly where I’ve been all day. And, if you have the student’s cell phone number, you’d also know how long we spent together and where we went.
Does the government obtain such records to check people’s alibis in case they are suspected of crimes? You bet they do. In fact, if you left your phone at home that day, so there’s no cookie-crumb trail to show you were somewhere else, prosecutors will argue that you not only committed the crime, but premeditated it as well—by leaving your cell phone at home so your steps couldn’t be traced. China has taken this to another level: Earlier this year, Beijing officials announced that they intend to use cell phones to monitor the movements of twenty million residents—“to ease traffic and subway congestion.”
But who needs cell phones? That’s old technology. Someday soon they’ll decide it’s easier to watch all of us, all the time. If you think it won’t happen, just look at Mexico: Last year, the city of Leon partnered with a biometrics firm to install iris scanners in public places from airports and police stations to stores and restaurants. The scanners will identify up to fifty people per minute, and will be used for both law enforcement and commercial purposes.
That, of course, focuses on the technology and government aspects. But then he gets into the human and cultural aspects, in talking about a somewhat famous case, involving a guy who sued a former lover because she wrote (sometimes graphically) about her time with him on a public website (that case got a lot more attention because the two were both Congressional staffers). Here, you can clearly sense the "the kids these days!" tone begin to seep through:
A while back, for example, the United States District Court for the District of Columbia saw the filing of a lawsuit titled Steinbuch v. Cutler. Steinbuch (a man) and Cutler (a woman) had been staffers for U.S. Senator Michael DeWine. They met after hours, had a few drinks and then went to her home and engaged in the type of activities that used to be considered private. The following day Cutler posted the following gem: “To answer The Question, no, RS and I did not fuck. (It is my ‘week off,’ if you recall.)” This, in my humble judgment, is already too much information. But the posting doesn’t stop there—oh, no, it’s just getting started. We learn, for example, that RS “[h]as a great ass,” that he had two ejaculations, and that he likes spanking.
During the course of the succeeding two weeks, Cutler continued to see quite a bit of Steinbuch, both figuratively and literally. And she assiduously reported their activities to the world, along with those involving other men with whom she was having sexual relations, including some for money.
This puerile and narcissistic account was picked up by another, better-known Washington blog and, for reasons I have difficulty understanding, soon tout-le-civilized-monde was reading about Steinbuch and Cutler’s sexual escapades. The upshot of all this was that Cutler lost her job with Sen. DeWine, but had no time to regret it because she soon got a six-figure book deal and a photo spread on Playboy.com. Meanwhile, Steinbuch brought his lawsuit, complaining of—you guessed it—invasion of privacy and infliction of emotional distress. He cut and pasted every word of Cutler’s blog into his complaint, which is where I read it.
There may only be a handful of people like Cutler and the people I saw on Jerry Springer—though it seems there is actually an endless supply of them. But we can all try to find comfort in thinking that these people are not like us—that they really are an aberration, representing a view of privacy and decorum that is quite different from that of ourselves and our friends and neighbors. But this is an illusion, because for every Jessica Cutler among us, there are the thousands or millions who are prepared to read their exhibitionistic writing and to watch the TV shows where they air their dirty laundry. By providing them an audience, we encourage others to engage in similar conduct, and we acquiesce in the erosion of privacy for all of us.
While this might come off as just as someone not liking the way "the kids these days" act, he's actually making a rather important legal
point, even if I don't agree with it. As you (hopefully) know, the 4th Amendment against unusual search and seizure is our main privacy protection in the US. While other countries have more explicit privacy laws, the US relies on the 4th Amendment mostly. And the key standard that is often discussed around the 4th Amendment is whether or not the individual has a reasonable expectation
of privacy in what they were doing. If there was a reasonable expectation of privacy, and the government spied on them without a warrant, that's (probably) a violation. If there was no reasonable expectation of privacy, then there's simply no Constitutional issue.
Of course, in this day and age, that barrier isn't always clear -- which is why (for example) there's been so much dispute (and mixed judicial rulings) on the legality of GPS tracking without a warrant by law enforcement.
That, of course, is an interesting subject in general. However, Kozinski takes it a step further, in that he appears to suggest that the fact that people are more public with their lives on the internet changes their own "reasonable expectation of privacy" and that may lead to the government having much greater rights to spy on people.
Of course, that is one of the great dangers of the internet and particularly of Web 2.0: No matter how private, dangerous, hurtful, sensitive, or secret a piece of information may be, any fool with a computer and an internet connection—which means just about everybody—can post it online, never again to be private or secret. They say that removing something from the internet is about as easy as removing urine from a swimming pool, and that’s pretty much the story. As soon as somebody posts an item, someone else picks it up and e-mails it to his friends, and friends of friends, and then bots and crawlers pick it up and the Wayback Machine makes sure the genie is never, ever to be stuffed back into the bottle.
Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.
Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”
While Kozinski leads readers down the garden path of logic with his step by step discussion of how privacy is changing, I find that bolded section above to be a big leap of logic -- and one that doesn't truly make sense. The shared information that he discusses and worries about is shared by choice
. Kozinski may not like it, and may find it distasteful and crude (hell, it probably is distasteful and crude), but that does not automatically mean that the government should then be able to assume that all
information has no reasonable expectation of privacy.
While I know that Judge Kozinski is thoughtful and nuanced in what he's discussing, this description seems to stray way too far into "well, I don't like this behavior, so I'm just going to say you crazy people deserve
what you get if the government spies on you." That seems like a novel interpretation of the Constitution, and one that I find troubling. Yes, people may have less privacy today than in the past. Yes, they may reveal all sorts of things about themselves online -- whether on purpose or not. However, that doesn't necessarily make us our own enemies -- nor does it mean that, because some
people display their sexual details, everyone loses the privacy over that info. Most importantly, none of that means that the government can then ignore privacy rights, just because some
people don't mind sharing their private info.
That is, just because Judge Kozinski doesn't like that people share "too much information," it doesn't mean that the government should then be free to collect too much information, by claiming that there is no expectation of privacy in those situations.