Computers, Privacy & the Constitution

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KevinMorenskiFirstPaper 3 - 29 Apr 2013 - Main.KevinMorenski
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Toward a solution

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<		According to Laurence Tribe, much judicial error stems from the presumption that people using modern technology simply "assume the risk;" recitation of risks requires an examination of their compatibility with the Constitution's fundamental values of freedom, privacy, and equality. Unfortunately, the Supreme Court does not have a very good track record in upholding these values uniformly. Katz v. United States clarified the confusion surrounding constitutionally protected privacy rights: Although a constitutionally protected, reasonable expectation of privacy exists, it is entirely context-dependent and often fails on directness and substantiality grounds. For example, in California Bankers Assoc. v. Schultz, the Court held that the government's need to prevent fraudulent banking activity justified requiring banks to maintain records of transactions and to report certain domestic or foreign transactions. In Whalen v. Roe, the Court noted two of the interests characteristic of privacy: (i) "the individual interest in avoiding disclosure of personal matters" and (ii) "the interest in independence in making certain kinds of important decisions." Therefore, the Court's inability (or unwillingness) to articulate a fundamental right of privacy that addresses the concerns posed by modern technology suggests that we should look elsewhere, perhaps even to Congress.
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>		According to Laurence Tribe, much judicial error stems from the presumption that people using modern technology simply "assume the risk;" recitation of risks requires an examination of their compatibility with the Constitution's fundamental values of freedom, privacy, and equality. Unfortunately, the Supreme Court does not have a very good track record in upholding these values uniformly. Katz v. United States clarified the confusion surrounding constitutionally protected privacy rights: Although a constitutionally protected, reasonable expectation of privacy exists, it is entirely context-dependent and often hinges on directness and substantiality grounds. For example, in California Bankers Assoc. v. Schultz, the Court held that the government's need to prevent fraudulent banking activity justified requiring banks to maintain records of transactions and to report certain domestic or foreign transactions. In Whalen v. Roe, the Court noted two of the interests characteristic of privacy: (i) "the individual interest in avoiding disclosure of personal matters" and (ii) "the interest in independence in making certain kinds of important decisions." Therefore, the Court's inability (or unwillingness) to articulate a fundamental right of privacy that addresses the concerns posed by modern technology suggests that we should look elsewhere, perhaps even to Congress.
 
The greatest harm done is to those who are not heretics, and whose whole mental development is cramped, and their reason cowed, by the fear of heresy. Who can compute what the world loses in the multitude of promising intellects combined with timid characters, who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral? J.S. Mill, "On Liberty," ch. II, para. 20.

Revision 3r3 - 29 Apr 2013 - 14:12:18 - KevinMorenski
Revision 2r2 - 25 Apr 2013 - 17:33:05 - KevinMorenski
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