I keep saying it, the US Constitution needs amending to create an explicit right to privacy. government surveillance is a problem, but so is the unilateral exploitation of personal data for commercial purposes. I'm Irish and living in the States, I really miss the EU Data Protection Act.
I think a new FISA would be a good start. As flawed as the current state of affairs is, its a big improvement over what existed prior to FISA. That law was a constraint on the NSA, probably the most restrictive that was possible during the cold war.
Alternatively, the Supreme Court could invent a right,of privacy out of thin air. That might very well happen in time, but the tech community is undermining attempts to lay the groundwork for that. There must be a consensus that privacy is the rule online, rather than the exception. No such consensus will emerge if the tech community continues to condition people to accept invasions of their privacy in the name of advertising. Ordinary people do not have a particular distrust of government. To get to "its not okay for the government to read my email" you have to get rid of the notion that "its okay for Google to read my email."
Alternatively, the Supreme Court could invent a right,of privacy out of thin air.
Between the originalists and the existing problems with rights that have been found in the penumbrae of other rights, I cant see that happening. But then a consittutional amendment likely isn't on the cards any time soon either.
(I'm tied up for the rest of the day and most of the week with family stuff, but have wanted to chat with you about this for a while, would you mind shooting me an email so we can pick it up later?)
"To get to "its not okay for the government to read my email" you have to get rid of the notion that "its okay for Google to read my email."
No, you don't. You opt-in to Google reading your mail by using their free service. You can't (easily) opt-out of the government reading everything you do.
You have a choice with Google and any other private firm.
That's a viable argument, certainly. But for the Supreme Court to read into the Constitution a right that isn't plainly in the text (as it did with the right to abortion in Roe v. Wade),[1] it's not enough to just present a viable argument. You need the weight of social and academic consensus. You need the majority of people to firmly believe that something should be a new social norm.
In this context, the social norm you're trying to establish is that internet communications are to be kept private, even sacrosanct. The idea of someone reading their e-mail should give people the same feeling as the idea of someone looking into their bathroom window.
You can't rest such a social norm on fine distinctions between the government and private companies. Ordinary people do not hold the government in a unique position of mistrust, and so are not likely to find compelling a norm that only the government must observe. As soon as you say: "well, Google can read my e-mail because I can always choose to use a different provider," you open yourself up to the counter that "well, unlike Google the government has a unique obligation to protect us from terrorists, so it needs to be able to read our e-mail too!"
When it comes to the establishment of a new social norm, it's irrelevant that people are theoretically free to choose a provider that does not violate their privacy. As long as the vast majority of the popular services leverage private data, the social norm that will emerge is that online communications are not something that should be held sacrosanct. As long as people are conditioned to accept Googles' reading their e-mails to target advertising, they will not think of e-mail as a deeply private thing that must be protected, even from the government.
[1] Whether you think Roe v. Wade was correctly decided or not, it's hard to argue that the result was plainly in the text of the Constitution. In Griswold, Justice Douglas didn't rely on "penumbras" and "emanations" despite having clear Constitutional text to hang his hat on!
Good (and clarifying) rebuttal, and now I see what you were saying in your original comment re: tech companies undermining the creation of a such a norm for the Supreme Court to use.
I do think that unlike Roe there is some room in the Fourth Amendment for finding that bulk storage of all electronic communications, regardless if they are being investigated for content or not, results in an unreasonable search. The Fourth Amendment has been found since Katz to cover more than just physical searches.
I think you can get some of what you want by stretching the fourth as it stands, but not everything you'd want in a privacy amendment. But whatever you can get will be undermined by tech companies creating these anti privacy norms.
I can see two potential twists in your argument that people using tech companies create new social norms, which seems fairly reasoned on the face of it.
Firstly, there is a question akin to informed consent. People do use these services and voluntarily give up a lot of privacy, but is that an informed decision, or is it because they don't understand the significance of what they are doing? Although many people share much information with organisations like Facebook and Google, there have been significant popular backlashes against a number of changes they have made, particularly those that have resulted in information being disclosed to people that the users who supplied it didn't expect.
To extend your bathroom window analogy, there is an argument here akin to sharing certain normally private behaviour with your doctor. This is something you do by choice, in your own interests, and with a clear understanding that the information is sensitive and not to be disclosed to anyone else or used for any other purpose. This is fundamental to medical ethics, and in many places it is protected explicitly by law, so doctors can't be pressured to disclose that kind of sensitive information, even by the police. Lawyers themselves are of course familiar with a similar argument, again establishing attorney-client privilege or the equivalent as a matter of universal professional ethics and protected by force of law.
Secondly, modern technologies like computers and the Internet are part of a very young and fast-evolving industry that is changing our normal expectations in many aspects of life. In many contexts, the overall effect is positive, but there can be serious negative consequences in some cases. I think it would be unwise for the courts to attempt to reinterpret major constitutional or human rights laws based only on the fact that this week X out of Y people were happy to share something with a specific web site. It takes longer than that for social norms to develop, and as always the law should reflect our ethics rather than try to dictate how things should be.
I do think privacy is going to be a big issue over perhaps the next decade or so, as we collectively work through the implications of modern technologies and decide what is acceptable behaviour and what isn't. I also think you're right that dedicated laws are going to be needed, rather than merely trying to adapt laws written for a time before the kinds of implications we are now seeing and starting to understand. I wonder whether this won't be a generational issue, as digital natives who consider things like being on-line and having mobile devices to be basic and universal facilities start to assert their independence, while the political dinosaurs who clearly don't understand even the basics of how this technology works and its implications are replaced by the generation in between who are perhaps both more open-minded on these subjects and less willing to trust the government by default.
The 9th amendment just says the Constitutions enumeration of rights isn't exhaustive. That doesn't mean that anything you want to call a "right" exists just because it isn't mentioned in the Constitution. You still have to show its existence some other way. Typically, this is by showing that the right existed historically. No general right to privacy has existed historically, at least not in America or England.
