Why a Judge Asserting That Privacy Is Not a Right Is Bad News for the Internet

This week, the honorable Richard Posner, a presiding judge on the 7th Circuit Court of Appeals and outspoken privacy humbug, came to the defense of New York City Mayor Michael Bloomberg, who stated last month that in the coming years, he envisions a New York where security cameras will be everywhere. In an opinion piece in the Daily News, Posner stated clearly that privacy is overrated. Posner is one of the most cited legal scholars in history, so if he thinks privacy is overrated, maybe it is. Right?

Posner agrees with Bloomberg that people’s perspectives on privacy need to change to take a second place to security. But Posner does not think this adaptation requires constitutional reinterpretation. He notes that "n]either the word ‘privacy’ nor even the concept appears anywhere in the Constitution, and the current Supreme Court is highly sensitive, as it should be, to security needs.”

As a judge, Posner knows Constitutional law better than all of us. And as a defense of Bloomberg's wishes to stick security cameras everywhere, Posner's judgment that there's no privacy in public would probably withstand legal scrutiny. Yet what he is getting at—that we make a big deal about privacy in theory, but in practice we volunteer hordes of information without pause, especially online—is a more dangerous argument.

Posner argues that privacy isn't guaranteed by the Constitution, so why even worry about it in the ongoing national security battle? Posner is right that the Constitution does not contain the word “privacy,” and does not guarantee a “right to privacy.”  Where does that right to privacy come from?

Legal scholars can tell you that tracing the roots of privacy in the Constitution is an elusive task, one that justices and law professors have argued over for most of the last century. Undoubtedly, the Bill of Rights protects many aspects of privacy, such as the privacy of belief (1st Amendment), privacy against being forced to open your home to soldiers (3rd Amendment), privacy against unreasonable searches and seizures (4th Amendment), privacy against self-incrimination (5th Amendment), and that the Bill of Rights “shall not be construed to deny or disparage other rights retained by the people" (9th Amendment).

But case after case, the Supreme Court has struggled to pinpoint exactly where the right to privacy emanated from. While it remains an open question, the Court has principally determined that the Constitution does impliedly create “zones of privacy,” and that the 14th Amendment “liberty” interest protects many of these aspects of private life.

In the landmark case of Griswald v. Connecticut, the Supreme Court recognized a right to marital privacy by striking down a law that prohibited the use of contraceptives by married couples. In Stanley v. Georgia, the Court concluded that the right of privacy protected the right of one to possess and view pornography. In Roe v. Wade the Court protected the private right to have an abortion, in Lawrence v. Texas it was the private decision to engage in intimate homosexual conduct. In Loving v. Virginia it was privacy of marriage; in Skinner v. Oklahoma the private right to procreate. Many of these privacy rights have been held to be fundamental, meaning that Government conduct is strictly scrutinized if it conflicts with these rights.

All of the aforementioned rights emanate out of the “zones of privacy” protected implicitly by the Constitution. The other well known constitutional right is to be free from unlawful searches and seizures based on the 4th Amendment. The government is, with limited exceptions, prohibited from entering homes to search or arrest without a warrant. But, it is not prohibited from surveilling what is in plain view. You have a right to stop Tom from peeping in on you at home, but you don’t have that right when you go out in public—that is because in public, you do not have a reasonable expectation of privacy.

Yet applying Posner's logic to the internet—which police departments, the FBI, and everyone else interested in security are increasingly doing—is cause for concern. Yes, we volunteer political views on Facebook, tweet about our favorite products, Instagram our vacations, and give Amazon all of our buying habits. Companies have a more complete profile of us than we could begin to create on any social media platform. Chances are, political analysts know how you will vote in the next election already, simply based on what you have “liked” online.

But even if we volunteer information freely, does that make the right to privacy overrated? In a 2007 interview, Posner likened privacy to a "superior good," one that is not something that is deeply ingrained in human nature, but rather a luxury.

The thrust of the argument is that privacy is a double edged sword because it essentially means concealment. Posner argues that privacy is simply protection to conceal that which we do not want others to know, like arrests, illnesses, etc. In his eyes, it's the right to present the most polished version of ourselves. He asks whether that is a social luxury we are willing to forgo in order to preserve something greater, like security.

The problem is that the exceptions to privacy rights are dangerously close to swallowing the rule. Each time we determine that “security” outweighs privacy interests, a hazardous precedent is set. While arguably one has no reasonable expectation of privacy in their public conduct, the line is less clear when it comes to the internet. Since law enforcement increasingly analyzes caches of online activity, should we have any expectation of privacy when it comes to our private internet conduct?

The answer of course depends on what conduct you are talking about. It’s clear that using Google is not private conduct, and even going into a private browser will not stop your ISP or employer from tracking your history.

But social media is arguably a realm wherein people do still have an expectation of privacy. Even generic Facebook posts are meant for a limited audience of followers. Maybe you have 100,000 friends, but that doesn’t necessarily foreclose your expectation of privacy with respect to that limited forum. It is no different than sending a private letter to 100,000 people, which would all be protected.

If law enforcement can tap into that information, they risk chilling people’s speech in a forum that should still be thought of as private (unless your account is set to be public; then you should expect less privacy). In that sense, Posner’s notion that privacy exists merely to conceal may be misguided. Privacy is a space where we engage in discourse, we dissent, we make love, we make art, we mourn, we make meals, we grow—not necessarily because we are ashamed or want to hide it, but because we are comforted, encouraged, and strengthened by our ability to limit the size of our audience.

Perhaps the Constitution does not protect your right to go undetected on the street, but the need for security cannot justify the destruction of the zones of privacy that the Constitution does protect. Those zones of privacy seem to be diminishing as law enforcement begs us to reconsider what expectations of privacy we believe are reasonable and we should be wary of setting a precedent where our electronic footprint no longer merits any privacy at all.