Chapter Three deals with privacy, or the lack thereof, and how we lost it due to technology. Spoiler alert, it was not jackbooted thugs.
WILL PRIVACY SURVIVE?
The concept of privacy enshrined in the Constitution by our founding fathers is now dead. It simply no longer exists. The erosion of our privacy started quite some time ago. First, in the 1960s, the Supreme Court found that we are entitled to little expectation of privacy in our cars. (Forget the fact that many a couples’ first sexual encounter occurs in an automobile!). I would think that demonstrates we do have a significant expectation of privacy in our vehicles. While not actually argued to the court, I think it is safe to say the court would find that reasoning unpersuasive.
The war on drugs was in full swing in the 1980s, with forfeiture laws allowing the seizure of bank accounts and cash. The Court found that the Fifth Amendment privilege against self-incrimination does not apply to records kept by institutions including banks, doctors’ offices, or anyone else – with the sole exception of lawyers. Not all of a lawyer’s record of interactions with his client is protected, though. For instance, financial records of lawyer-client interactions are discoverable – an outrage to those who value the right to privacy as a bulwark against government overreach.
With the advent of widespread home computing in the 1990s, police discovered a new place to search: the hard drive. Initially, it was to get pedophiles who had child pornography on their computers. But as you might guess, there’s nothing to prevent them from gathering other evidence they encounter while looking for child porn. There’s a doctrine in the law that says if an officer has the right to be at a location, anything he sees is fair game. This is called the “Plain View Doctrine.” It also applies when police are rummaging through your hard drive looking for one thing, but find evidence of some other unrelated crime.
Land lines were always private, because they involved closed communication between two people. In order to tap your phone, police would need a warrant. It was against the law to just listen in on random private conversations between people. In other words, the court found that people did have an expectation of privacy while speaking on a landline.
Then came the proliferation of the cell phones after the year 2000. Some courts likened the cell phone and the cordless phone to a radio broadcast, rather than a conversation on a land line. They found that a cell phone user had no expectation of privacy because conversations were broadcast over the airwaves. And that, my friends, was the end of privacy as we know it. Conservatives like to talk about the original intent of our founding fathers. Truth is, the founding fathers valued privacy to the highest degree. They prized it. They did not want the government intruding into our lives. Unfortunately, a number of conservative jurists, having found no mention of the cell phone in our Constitution, have decided it is not protected.
It is widely accepted that the Fifth Circuit Court of Appeals is the most conservative court at the federal level. The Fifth Circuit has recently ruled that law enforcement can obtain your cell phone records concerning your location without a warrant- once again deciding there is no expectation of privacy. The government can track its’ citizens at will without any probable cause. I suspect Thomas Jefferson would have come to a different conclusion when he found out the federal government was listening in on private conversations between citizens and tracking their locations. This is simply another exercise in raw power, with a veneer of legal reasoning to cover what is obviously an outrageous overreach into individual privacy.
E-mail, like the cell phone, operates under a diminished expectation of privacy. Once you send an e-mail out to someone, it can be discovered, and it can be used against you. Companies that store massive amounts of information, such as Google, can be forced to hand over e-mails from your account. In theory, you can still live your life as though you could maintain your privacy. However, if you really want privacy of the kind we all used to enjoy, you can’t use the internet, cell phones, credit cards, or anything else that will store information. This is why I say privacy is dead. Forget the Orwellian hell of a fascist government stripping you of your privacy through infiltration by jackbooted agents. It was technology that killed it, with the courts as a willing participant.
For a current example of how technology destroys privacy, look no further than what occurs when you try to board an airplane. You are now put in a scanner that allows a TSA employee to examine you – junk included – in great detail. Should you refuse this massively invasive scanning, you are provided an opportunity to have a fellow human being run his hands all over your body. In the year 2013, if you’re unwilling to let the government peek at your privates, you must be willing to subject yourself to a sexual assault: the new cost of flying.
The next generation doesn’t even care about privacy. They’ve grown up with Facebook and YouTube, their every activity broadcast willingly across the world. Internet advertisers mine data to craft their pitches as effectively as possible. Based on all the personal data they glean from the many data banks that store information about our likes, dislikes, and travel and behavior patterns, they know each of our interests. With only a name or a photograph, everyone’s personal data is but a few mouse clicks away from being discovered by friend and foe alike.
In the private sector things are even worse. People have heard the phrase “invasion of privacy” and assume they can sue someone for invading their privacy. But to quote Tony Soprano: “Fuhgeddaboudit.” It’s no longer possible, except in theory. If someone obtains information about you legally, and the information is true, you can’t sue them for making it public. Most laws set up to shield sources have been struck down. (One exception to this is the rape shield law. In a criminal prosecution for rape, the defense can no longer introduce evidence of prior sexual acts by a complaining witness as a defense strategy.) Congress passed a broad privacy law so your medical records cannot be disseminated by a healthcare provider without your permission. It requires a HIPAA release which is a waiver of your right to privacy to allow a hospital to release your medical information without fear of suit. While privacy is not completely dead, it now literally takes an act of Congress to fashion what little privacy is left.
This lack of privacy is not a one-way street. Our elected leaders and government employees are also subject to the same loss of privacy. WikiLeaks is a perfect example. Our political process is nothing short of vile now that no one running for public office is allowed a private life. Every e-mail, every Internet inquiry, every contact you make, every cell phone conversation is subject to being hacked, quantified, analyzed, and made public. This isn’t all bad. When dropping my child off at day care, I’d like to know if a convicted pedophile is employed there. When hiring a secretary, I’d like to know if she’s been convicted of theft. I’d like to know if my surgeon had a recent DWI. And this information is all there for anyone with an internet connection.
We all want privacy for ourselves and for no one else. The courts have already set the tone. Privacy will impede commerce and allow people to hold themselves out as people they’re not. Privacy has become a luxury that society can ill afford in the eyes of the courts. Unless you live in a shack in the woods, you’ll have to accept this loss of privacy as the cost of admission into modern technological society.
What I’m describing was not an Orwellian hell dealt to us by a totalitarian regime. On the contrary, we did this to ourselves. An exponential explosion in communications technology made possible by the internet and communication satellites turned it into an inevitability. Once again, the exponential expansion of technology quietly and completely engulfed any idea of privacy that ever existed. To quote the comic strip Pogo, “We have met the enemy and he is us.”
The following scenario is just a scratch at the surface of what’s going on. Real hackers bent on doing real harm, for instance, are far beyond what we are about to show. This scenario is meant to only show what is readily available to anyone with internet access.
THE BLIND DATE
Meeting people in the 21st century is radically different than in the past. Before, people would often meet their dates at school, at work, or through mutual friends. While this still happens today, there’s also internet dating on a huge scale. Total strangers arrange to meet at restaurants, museums, or night clubs.
People born after 1990 will not see anything strange in any of this. They were born and raised in the internet age, and this is their normal. The baby-boomers (those born between 1946 and 1964) lived almost half their lives without the existence of the internet and personal computers. When these groups speak about privacy, they mean completely different things. I would expect each group to view the next scenario through completely different lenses. What most boomers would find shocking and unattractive is viewed by Millennials and many Gen Xers as business as usual. So, let’s see what happens when Tom and Sarah meet for their first date.
When a person agrees to meet a total stranger, they want to know that the other person has something in common with them, and is not, y’know, an axe murderer. After all, you can never be too careful... or can you? Tom and Sarah first met on OKCupid. They exchanged the usual pleasantries and talked about how important it is to be honest and genuine. They both decried the rampant falseness of OKCupid users who grossly misrepresented themselves. After several e-mail exchanges, Tom and Sarah agreed to meet. They decided to have their first date at a new Italian restaurant that had recently opened in Houston’s entertainment district.
Tom was determined to make a brilliant first impression on Sarah so he did quite a bit of “internet stalking” to determine her likes and dislikes. Keep in mind, all the information that Tom gleaned from the Internet about Sarah was obtained by clicking a mouse. No trips to the library, no hiring of private investigators – no, none of that. Just some routine clicks of the mouse as he scoped out her OKCupid profile, Facebook wall, recent tweets, and so forth. Sarah naturally did some research of her own to make sure Tom was not some crazed stalker.
Tom arrived at the restaurant a few minutes early. He grabbed a table near the front window and far from the kitchen and bathrooms. Tom knew where the “power table” was and hoped Sarah would notice. His heart was racing in anticipation of their first date. He was already running several topics of conversation through his mind. Sarah had a good job at a big bank, so he was determined to appear educated and worldly. He knew he had one chance to make a good first impression. He tugged at the cuffs of his white shirt so each sleeve came out from the blue blazer the exact same length. He straightened his red tie for the umpteenth time and signaled to the waiter. Tom ordered a vodka tonic for himself and a mojito for his date. Then he nervously glanced at his watch and hoped she’d be on time. Having her drink already on the table was a bold move, but a good one – unless she was late and the ice was all melted before she sat down.
Sarah entered the restaurant and walked right past the hostess straight to Tom’s table. They had exchanged photos previously and recognized one another. Sarah wore a beautiful red dress with a neckline that showed enough cleavage to be inviting, but not so much as to be provocative. She glided past the other tables with an air of confidence befitting a woman of her status and income. Tom stood up as she approached their table and gestured towards her chair. He awkwardly shook her hand, and they sat down.
“I took the liberty of ordering you your favorite drink. Hope you don’t mind.” She gazed at the mojito. “My favorite drink? How could you possibly know my favorite drink?” An unmistakable look of suspicion started to spread across her face. “You listed it on your profile,” he said innocently.
Not true by half. Sarah had never mentioned her favorite drink on her dating profile. Having conducted an exhaustive search for references to Sarah on Google, Tom had found all her social and professional network sites, and compiled a list of her friends. Tom then friended one of her male friends, and told the guy they went to high school together. He assumed that this guy, like everyone, would just assume it was true and accept the request without questioning anything. Tom was right.
Once they were friends, he moved from the guy’s Facebook wall to Sarah’s. It looked as though her old friend was accessing her site – not Tom. He then used face recognition software to obtain every photograph of Sarah that had appeared on the Internet in the past ten years. A number of those photos showed her with drink either in hand or one on the table in front of her, with that signature mint sprig hanging over the glass. Must be her drink.
“So, tell me a little bit about yourself,” asked Sarah. “Oh, not much to tell, really. I’m just a regular guy with a regular job. Sort of a 9-to-5, if you know what I mean.”
“Uh, Tom, you’re not going to claim you were born in a log cabin, are you? You graduated in the top 10% of your law school and were one of five new lawyers hired by Williams & Smith. It’s common knowledge that every lawyer in that firm makes six digits – hardly a regular guy with a regular job,” scoffed Sarah. “And how would you know any of that?” questioned Tom.
“You had mentioned you work for Williams & Smith so I looked at their website and read your profile. Nothing sinister, I assure you,” offered Sarah.
Again, not true. Sarah did a Google search for Tom. She found his graduation notice from law school, mentioning his top honors. She also found his name associated with Williams & Smith in the firm’s announcement of their new hires for 2010. She also researched the firm itself and found a Wall Street Journal article touting them as a place where no one made under $100,000 a year. Tom was always careful not to tell people where he worked for this very reason. He was concerned about gold diggers hunting him on the Internet.
“One reason I suggested we meet at this restaurant is they make an incredible paella,” said Tom. “Wow,” exclaimed Sarah, “paella is my favorite dish!” This was no accident. Tom had found Sarah on Pinterest and noticed she had downloaded a recipe for paella. They ordered the paella for two. Tom now felt in control as he brought all his intel into play.
Sarah pulled her iPhone from her purse. She quickly pulled up the sports screen and scanned the baseball scores. “Oh God, the Astros lost again. You think we’ll ever see an end to this losing streak? I mean really, 28 losses in a row!”
“I know what you mean. I have season tickets on the third-base line. It’s gotten to the point where I can’t even give them away,” admitted Tom. “So are you a baseball fan?”
“Isn’t everyone? I love baseball. I mean, it’s America’s sport, right?”
Sarah had also found all of Tom’s social and professional network sites. She’d also used facial recognition software to obtain every photograph of Tom on the internet. Several of them showed Tom at baseball games. It was a no-brainer: he was heavy into baseball. Tom wasn’t the only one trying to build rapport. Sarah now felt very confident that she was in control, thanks to her intel.
“So have you been following the presidential election much?” asked Tom.
“I really try to avoid discussing politics with Democrats, because it only leads to fights,” cautioned Sarah.
“And how do you know I’m a Democrat?”
“You had that on your personality profile on OKCupid!”
Not true. Sarah had run Tom’s name through the Democratic and Republican Party registry and he came up on the Democrats’ list. What Sarah did not know was that Tom had done the same thing and already knew she was a Republican. He’d agreed to the date on the theory that opposites attract.
The food arrived, the rich aroma of Spanish seafood filling the room. Tom looked across the table at Sarah. She was stunning in the candlelight – much more attractive than that spring break photo Tom had discovered where she was drunk and disheveled, a trace of vomit stain on her shirt. Tom had figured, “Hey, anyone can have a bad spring break, right?”
Sarah was taken in by Tom’s boyish charm. She had almost forgotten the photo of him hanging off of some strippers in Vegas while celebrating his graduation from law school. “Boys will be boys, and besides, he’s been at a prestigious law firm a couple years now. He must have matured since then,” she’d thought to herself.
“Are you seeing anyone right now?” Tom asked.
“What do you mean, ‘seeing anyone?’” asked Sarah, getting defensive
.
“You know, are you in a serious relationship with another guy?”
“No, no, nothing serious.”
“I mean the reason I ask is, I noticed you seem to spend quite a bit of time with your friend Dave. Exactly what is your relationship with Dave?”
“I don’t know how to answer that. My first reaction is to say Dave is none of your business,” sniffed Sarah. She started slowly moving food around her plate. There was a storm on the horizon and it didn’t look good. “Exactly how do you know about Dave?” demanded Sarah.
“He seems to post on your Facebook quite a bit and I also saw the pictures of you and him on your trip to New Orleans last month,” Tom said, a little confrontationally. “It’s not rocket science. I asked an honest question and all I got was evasiveness.”
“Oh, you want honesty? Just how much honesty do you want, Tom?”
“And what exactly does that mean?” demanded Tom.
“For starters, you sit here in a brand-new suit and try to play it like you’re some rich guy. You bought that suit at J C Penney’s off the rack, for Christ’s sake! You have a tax lien on your house! You’ll be facing foreclosure if it’s not paid in the next three months. Is that enough honesty for you?” she replied with contempt. Sarah had run Tom’s name through the county records.
“I don’t like where this is going. You seem to enjoy dishing it out but I doubt very much you can take it,” responded Tom.
“My life is an open book,” snapped Sarah.
“So that six months you spent on unemployment before getting the bank job is something you tell everybody about? You’re not the only one with internet access.”
“Well, at least I don’t have any DWIs. Can you say the same, Tom?”
“Who the hell are you to judge me? I read the pleadings from your divorce. If even half of what your ex-husband said is true, you made his life a nightmare.” Tom had run Sarah’s name through the county records too. Suddenly he couldn’t contain it: “Does mental cruelty ring a bell?”
“All right, that’s it. You want to get rough? I read the pleadings from your paternity action. You got a girl pregnant and ran out on her. You had to be forced to take responsibility for your own child. How do you like those apples?!” raged Sarah.
“Slow down, sport. You were treated for a sexually transmitted disease. There’s no way I’m going to be judged by you,” roared Tom. He had recently defended a doctor in a medical malpractice suit and had surreptitiously lifted the doctor’s password to enter the county health records. Sure enough, Sarah, while in college, had been to the free clinic.
Everyone in the restaurant stood motionless – every patron leaning in trying to hear the fight. Cocktail parties around town would crackle for weeks with the telling and retelling of this date from hell, overheard by a restaurant full of hapless patrons unable to not turn away from this train wreck of an evening.
Sarah leaped to her feet, seething. “This date is so over, you clown! How dare you invade my privacy?!”
“Me? How about you? You sure seemed to know a lot about me. I guess you can add ‘hypocrite’ as your new job on LinkedIn,” laughed Tom.
Sarah turned on her heels and bolted for the door. Her face was bright red and she felt all eyes upon her as she did everything she could to get out of there as fast as possible. She made a quiet promise to herself that this would be her last internet date. Tom picked up his iPhone and immediately accessed his Twitter account. He sent a tweet warning all men in the greater Houston area to watch out for Sarah. He composed 140 quick characters on her invasion of his privacy and her obvious anger management problems. Tom then sent out his tweet over all his social networks. Tom considered it a civic duty to warn the men of America about Sarah. Later, when served with her lawsuit for intentional infliction of emotional distress, Tom came to find out how expensive careless words broadcast on social media can ultimately be.
Back to the talk show.
RANDY: The concept of privacy is not only dead, it has been cremated and its ashes have been scattered across the internet. When I was a young attorney and I wanted to know if a witness had any prior convictions, there was only one way of discovering that short of committing a crime. The FBI and the State of Texas had a database of prior convictions in their computer systems called the NCIC and TCIC. They had immediate access to a person’s criminal history. The only way for a private citizen to find that information was to send an investigator to the district clerk’s office of each county to search through volumes of paper trying to find the name and date of birth of whatever witness you were trying to impeach. Today there are private companies that research the database of all of the counties in the United States for public information on criminal convictions, bankruptcies, lawsuits, and property ownership. This can be accessed for a nominal fee of ten dollars a query. I know of people who had been denied the ability to rent a nice apartment because the management company quickly went to the Internet and found out the applicant for the apartment had a previous misdemeanor conviction, or had filed for bankruptcy somewhere. Youthful indiscretions no longer disappear over time, but are immutably engraved in the databases of computers scattered across the world.
ROB: There are now companies who collect the web searches, purchases, and the amount of time an individual may spend looking at a particular product. All of this can be purchased by any individual or company. If someone has ever searched for the price of an automobile and then begins surfing the web, they’ll find an advertisement for that particular automobile following them across the Internet. This is not happenstance. It’s because some company somewhere has captured that web search and sold that knowledge to a car manufacturer who is now pinpointing its advertising to that individual.
CLAY: People who make bad decisions under the influence of drugs or alcohol or make youthful mistakes do not understand what that decision has now done to them. They are like a man entering a 20 story office building wearing a ski mask. Because of that threatening appearance, doors throughout that office building that he did not even know existed or even want to go through are now being slammed, locked, and bolted so that he will never be able to enter them. Before he even gets on the elevator all of the doors have been locked – and locked they’ll remain for the rest of his life. Even years later if he tries to come into that same office building those same doors will be locked. Presently there is no way to outrun, out-wait, or outsmart the Internet.
RANDY: There is an entire generation of people who do not understand exactly what occurs on the computer in their own home and on computers across the world. Facebook, Twitter, and YouTube do not forget and that information does not magically dissolve once you shut down your computer. That angry rant you typed up and sent to your friends about your boss does not disappear simply because you hit the delete button. It is now scattered on every computer of every one of your friends and it is scattered on every one of their friends computers and it is scattered on the friends of your friend’s computers ad infinitum. Knowledge is now like a fun house mirror. When you stand between two mirrors facing each other, you see an infinity of yourself stretching out forever. Knowledge and information combined with indiscretions are now analogous to those fun house mirrors. Should this world of captured information continue, the word “privacy” will soon be an anachronism. It will be like the word “mollycoddle.” It’ll have meaning only for those who are old enough to remember it, but no usable value in everyday language.
CLAY: Finally, something we can all agree on. Unfortunately it is the death of privacy as we once understood it.