Privacy: A Failed Experiment?

As Americans look north and observe Canada's latest kerfuffle over privacy this week, it has been like looking at ourselves in the mirror - everything is on the opposite side.

Court documents released last week in Quebec revealed that the Royal Canadian Mounted Police can unlock the encryption on any and all Blackberry devices. At least six years ago, the RCMP got hold of the "passkey" and has been secretly unlocking millions of private messages with the full knowledge and cooperation of Research in Motion (RIM), the company that makes Blackberry devices.

Ontario's former Privacy Minister says it was 2010 when she first heard that RIM was releasing a universal key to unlock Blackberry encryption to governments in the Middle East. Unlike the Apple execs in the U.S. who recently fought pressure from the FBI for similar access to locked smart phones, RIM apparently had no objections. In what the minister now characterizes as a "rude response" to her written inquiries, the company told her that she was being unpatriotic for asking questions. She says that's when she ditched her Blackberry and got an iPhone.

Privacy in America - A Relatively New Concept

The right to privacy as we know it today has been evolving for a little more than a century. In an 1890 article for the Harvard Law Review, Supreme-Court-Justice-to-be Louis Brandeis and his law partner Samuel Warren expressed concern that "[r]ecent inventions and business methods" posed a threat to individuals, who had "the right to be let alone." The authors predicted that the law was unprepared to deal with privacy cases, and about a decade later, history proved them right.

New York's highest court ruled in 1902 that nothing in the law prevented a paper mill from using the latest technology - photography - to put a picture of a young girl on its flour sacks without asking her first (let alone paying her). The case created a public outcry that prompted legislators to create a legal right to privacy.

Since then, the bubble of privacy that surrounds each American has expanded. Courts have found that an individual's right to privacy protects against government eavesdropping on conversations on public phones or going through garbage cans looking for incriminating evidence. If the government wants to violate the privacy of a citizen legally, it usually needs to obtain a court order before snooping around.

The Illusion of Privacy

The concept of a right to privacy has become more ingrained in the American public, even as it has become harder and harder to keep anything private. Like a teenager who is horrified to learn that the little lock on her diary was insufficient to protect her secrets from a prying sibling, Americans have been surprised over and over again to learn that nothing they say or do is necessarily a sacred secret.

As far back as 1987, the televised Iran-Contra hearings on Capitol Hill gave the American public a glimpse of how electronic communication was already changing the nature of secrecy. Co-conspirators in the White House had erased their computer files and shredded hardcopies of electronic messages (called PROF-notes) to hide their actions, never suspecting that someone would find (and make public) a back-up disk with copies of all the incriminating evidence.

Twenty-five years later, anonymous emails to a Floridian socialite led the FBI directly to the jealous mistress of General David Petraeus (the head of the CIA!), and the ensuing scandal precipitated the war hero's downfall -- another reminder that nothing about electronic communications is reliably anonymous. And yet, every revelation seems to come as a fresh surprise.

Privacy Is Not Immunity

Nothing that is in a citizen's phone would be immune to a court order if it existed as a hard-copy in a safe deposit box. Yet, somehow, digital privacy seems different. President Obama alluded to this when he warned last month against "fetishizing our phones above every other value" -- an interesting reversal from the man who was so attached to his own Blackberry before taking office that he insisted the government create one secure enough for him to use as president.

Security concerns are routinely being used as justification to restrict the right to privacy. Public places in even the most open societies are routinely under the watchful eye of security cameras monitored by law enforcement. High-tech devices in the hands of police gather large amounts of data - license plate numbers, cell phone signals, airline passenger records.

For the most part, society has been willing to cede some degree of privacy in exchange for security, although it is difficult to see exactly where the line is drawn. The Transportation Security Administration, for example, has long had passkeys to unlock all checked airline baggage and faced no significant resistance to that rule. Neither the luggage nor the lock-making industry rose to defend the public's right to keep the contents of their suitcases private, even after the government published photos of those passkeys, thereby making it possible for anyone with a 3-D printer to copy them.

In contrast, many of the same people who have accepted the ubiquitous presence of security cameras raise objections to security microphones. Around the country, where transit authorities have begun recording sound on busses and trains, some commuters who have no expectation of privacy regarding their public behavior have drawn the line at allowing the government to overhear their public conversations.

The Right to Privacy -- An Experiment that Failed?

The under-30 set has grown up with digital profiles, blogs, and a plethora of social media accounts with which they immortalize an uncensored record of their young lives - mistakes and all. Meanwhile, their elders worry that "kids today" will someday rue their failure to keep things private.

The French government even reflected a protective concern about the nature of privacy last month when it warned that parents could face prison for violating the privacy of their children by posting their pictures online. Or that, someday, those children might turn around and sue their parents over the embarrassment those pictures cause.

In this country, the legal concept of privacy continues to evolve, as Congress grapples with the notion of "unbreakable" encryption. Meanwhile, it is difficult to predict the future of our extended right to privacy, which came into being barely a century ago. Perhaps a few hundred years from now, when our ancestors look back and muse at how technology became more integrally woven into human lives, they will see today's angst over the right to privacy as a quaint overreaction to an inevitable wave of change.