Expectation of privacy

In the world of law enforcement, gathering evidence that can be used in court is all about people’s reasonable expectations of privacy. Which places and situations are public, and which are private? That’s largely determined by what we all agree on as the dividing line, rather than what an individual might prefer. I’d love to consider my living room to be private, but if my living room is visible from the street then it’s not. The prisoner who doesn’t realize that his phone call to his attorney is being monitored by the warden may believe his conversation is private and protected by attorney–client privilege, but that belief isn’t sufficient. Interesting questions arise then as new technology allows police to see through walls, to track heat signatures deep inside buildings, to listen to conversations happening 100 yards away, or to monitor phone calls between people talking in their homes. At what point can we no longer have any reasonable expectation of privacy?

The government would say that time is now. From an AP story on Veteran’s Day:

As Congress debates new rules for government eavesdropping, a top intelligence official says it is time that people in the United States changed their definition of privacy.

Privacy no longer can mean anonymity, says Donald Kerr, the principal deputy director of national intelligence. Instead, it should mean that government and businesses properly safeguard people’s private communications and financial information.

Privacy means something different for urban and rural areas. We may expect that nobody can hear or see us in our homes if our homes are surrounded by fields or woods, but privacy in a city means that people pretend they cannot see and hear their neighbors. Essentially, we rely on our neighbor’s discretion with our secrets. Donald Kerr wants us all to consider the government to be just another too-close neighbor and trust in the government’s discretion.

The question of how our notion of privacy should change is an important one, and one that citizens and organizations and the government should debate. But by leaking a constant stream of news over the past several years about how much information the government is already collecting, the government does not just prove itself unworthy of our trust in its discretion. The government preempts the debate, by making it manifestly unreasonable for us to expect privacy anywhere.