How Frictionless Sharing Could Undermine Your Legal Right to Privacy

More

You might not think about the Fourth Amendment while you're using Facebook and other online tools, but you probably should.

facebookbgraph.jpg

You are no doubt familiar, now, with Facebook's concept of "frictionless sharing." You enable a social reader like the one from the Washington Post and the next time you read an article on the site, news of that textual encounter is broadcast to your Facebook friends.

It is so easy. It seems so simple. But it could also create a fundamental shift in the way that judges view people's expectations of privacy online.

That's the argument that Margot Kaminski, the executive director of Yale's Information Society Project (and sometime Atlantic contributor), makes in an intriguing new article in Wake Forest Law Review.

In Fourth Amendment cases, the Supreme Court has to determine what "a reasonable expectation of privacy" actually is. If you do have that expectation of privacy, then the government needs a warrant to look into your communications. So, if you go out in the public street and shout to the world that you committed a crime, the government does not need a warrant to use that communication. However, if you were to send a sealed letter to a friend containing the same information, you would have a reasonable expectation that the government would not be reading that note.

Because we're talking about expectations, we have to think about what cultural norms are and the actions that signal what norms are in play. For example, Kaminski notes, "In the 1967 seminal Supreme Court case on wiretapping, Katz v. United States, Katz placed a phone call in a public phone booth with the door closed, and was found to have a reasonable expectation of privacy in the phone call, so a warrant was required for wiretapping the phone." Closing the door meant he expected the call to be private.

And the problem with frictionless sharing is that it may leave the door open for the government to collect and use information without a warrant.

"Justice Alito recently contemplated that we may be moving toward a world in which so many people share information with so many friends that social norms no longer indicate a reasonable expectation of privacy in that information," Kaminski writes. "Without a reasonable expectation of privacy, there will be no warrant requirement for law enforcement to obtain that information. This analysis is troubling; sharing information with your friends should not mean that you expect it to be shared with law enforcement."

Kaminski thinks Justice Alito's analysis is dangerously wrong. "This would be like saying that just because you sent wedding invitations to 500 of your closest friends, the government is justified in opening the envelope.  The size of the audience for private communication should not change the fact that it is private."

I think it's one more example of the problems inherent in only thinking of ourselves as consumers of digital content. What we do in this realm will have an impact on our lives as citizens. Norms of privacy we establish for convenience or to up our friend counts will be the norms of privacy that are applied on much weightier issues.


Jump to comments
Presented by

Alexis C. Madrigal

Alexis Madrigal is a senior editor at The Atlantic, where he oversees the Technology Channel. He's the author of Powering the Dream: The History and Promise of Green Technology. More

The New York Observer calls Madrigal "for all intents and purposes, the perfect modern reporter." He co-founded Longshot magazine, a high-speed media experiment that garnered attention from The New York Times, The Wall Street Journal, and the BBC. While at Wired.com, he built Wired Science into one of the most popular blogs in the world. The site was nominated for best magazine blog by the MPA and best science Web site in the 2009 Webby Awards. He also co-founded Haiti ReWired, a groundbreaking community dedicated to the discussion of technology, infrastructure, and the future of Haiti.

He's spoken at Stanford, CalTech, Berkeley, SXSW, E3, and the National Renewable Energy Laboratory, and his writing was anthologized in Best Technology Writing 2010 (Yale University Press).

Madrigal is a visiting scholar at the University of California at Berkeley's Office for the History of Science and Technology. Born in Mexico City, he grew up in the exurbs north of Portland, Oregon, and now lives in Oakland.

Get Today's Top Stories in Your Inbox (preview)

A Breathtaking Tour Above the Moab Desert

Filmmaker Ian Cresswell rigs an HD camera atop a remote-controlled "octocopter" for some spectacular aerial views.


Elsewhere on the web

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register. blog comments powered by Disqus

Video

Where Time Comes From

The clocks that coordinate your cellphone, GPS, and more

Video

Computer Vision Syndrome and You

Save your eyes. Take breaks.

Video

What Happens in 60 Seconds

Quantifying human activity around the world

Writers

Up
Down

More in Technology

Just In