//Opeyemi Akanbi, a dual qualified attorney in New York and Nigeria and Master’s student at Cardozo Law School analyzes the privacy concerns of US citizens.
Recently, privacy concerns, based in part on the presence of developing technologies, have dominated US headlines. Two recent examples, the controversies surrounding Google Glass and PRISM are analyzed below in order to illuminate the reactions of the government, the public, and corporations to these issues as well as the legalities surrounding issues of privacy and surveillance.
Congress’ concerns stem from the fear that innovative technologies may infringe on rights guaranteed by the Fourth Amendment. The Fourth Amendment, which protects against unreasonable searches and seizures, has been interpreted in several cases, including Katz v. United States, to protect against the unreasonable invasion of privacy without probable cause. Consequently, law enforcement officers are required to obtain warrants before conducting searches and the situations where valid searches can be conducted without warrants are severely limited.
According to Katz, the right to privacy only exists where a reasonable expectation of privacy can be established. For instance, while it would be reasonable to expect a telephone conversation in a closed phone booth to be private, there can be no such expectation for a conversation taking place audibly on an open, public field. In the age of Internet and social media, the conversation about reasonable expectation of privacy has moved from phone booths versus open fields to the privacy of online activity- browsing history, tweets, Facebook posts and emails. As the court in Katz and Congress’ letter reveal, expectations of privacy continue to exist regardless of the prevailing technology.
A second developing story which has captivated citizens is the revelation of US security organization surveillance program, PRISM. President Barack Obama defended the program, arguing that “”The programs are secret in the sense that they are classified. They are not secret, in that every member of Congress has been briefed… These are programs that have been authored by large bipartisan majorities repeatedly since 2006…Your duly elected representatives have consistently been informed.” While Congress championed privacy rights in reference to the new technology of Google Glass, it is clear that opinions may differ in regards to government, versus corporate, information collection.
Although the program was the subject of criticism by the public, electronic surveillance in general is not illegal. The Foreign Intelligence Surveillance Act (FISA) (50 USCS § 1842), broadened by provisions of the Patriot Act, permits the use pen registers and trap & trace devices to gather foreign intelligence about international terrorism. Even with the broadening effect of the Patriot Act, FISA nonetheless excludes US persons’ conversations from surveillance. Additionally, the provisions of 18 USCS § 2703 authorize the government to require a provider of remote computing services to provide records of a subscriber’s Internet session times and duration of usage upon the issuance of a warrant.
Of course the constitutionality of such surveillance, given the provisions of the Fourth Amendment, is debatable. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” The government can convincingly argue that the provisions of FISA and the Patriot Act permit surveillance only where it can be reasonably justified in accordance with the Fourth Amendment. The right to privacy cannot be violated except with the issuance of a warrant “… upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The provisions of 50 USCS §1805 outlining the requirements for the issue of a warrant permitting electronic surveillance lend credence to the idea of compliance with the requirements of the Fourth Amendment. The Electronic Communications Privacy Act in 18 USCS § 2511 also features similar Fourth Amendment provisions for collecting information about individuals’ electronic communications. Privacy advocates may point to the emergency powers of the Attorney General (in 50 USCS §1805) to authorize electronic surveillance without a court order as contrary to the Fourth Amendment. However, this authority is limited to emergencies and the procedure for obtaining a warrant is required to be initiated within 7 days thereafter. Government is required to desist from surveillance within 7 days of the issuance of the emergency order or when the information sought is obtained or the warrant is denied. The emergency powers are consistent with government’s policy to provide rapid response in emergency situations.
Notwithstanding the arguments for surveillance, the right to privacy must be balanced with the need to protect national security and combat terrorism. Consequently, absolute privacy cannot be guaranteed especially when terrorism constitutes a real security challenge. In this regards, the debate over the PRISM program differs from the debate over Google Glass. Despite differences in the two case studies, both illuminate a growing concern among citizens for the protection of their privacy, which at times conflicts with the actions, needs, or desires of government and corporate entities.
//Opeyemi Akanbi, LL.M Harvard Law School
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