The prospect of rethinking privacy in contemporary society, which is characterized by the digital age, is inevitable, and it involves exploring the normative and descriptive dimensions. In theory, the descriptive and normative dimensions can be differentiated. That is because one dimension involves the description of the degree of privacy that members of society enjoy, while the other focuses on the reason why privacy is important. The descriptive dimension involves a focus on the degree of privacy. On the other hand, when it comes to normative explorations, the focus is usually on the role of privacy in contributing to individuals living a fulfilling life. However, it is important to comprehend that privacy is not a neutral concept because it has a positive connotation. Therefore, an invasion of privacy is considered to be an intrusion into or a violation of something that is perceived to be valuable and warrants protection (Becker, 2019). In the digital age, most discussions of the concept of the right to privacy focus on the normative dimension. Individuals focused on defending privacy have encountered some levels of skepticism which are fueled by different prominent persons. For instance, Schmidt argued that innocent people have nothing to hide (Esguerra, 2009), while Zuckerberg pointed out that when a person has two identities, then they lack integrity (Boyd, 2014).
As technology advances in contemporary society, the legal implications surrounding privacy rights that members of society enjoy have increasingly become dynamic and complex. That has seen the need for the development of privacy laws that take into consideration the potential impact of digital technologies, data collection, and surveillance on personal privacy. Over the years, things that are considered private have evolved depending on the individuals, era, and society. That prompts the need to explore the concept of privacy and the legal implications in modern society, given the increased levels of interactions and access to private information facilitated by technological advancements.
Historical Analysis
The right to privacy has experienced significant evolution over the years, with a number of landmark cases shaping its trajectory. Privacy became accepted as a right in the 19th and 20th centuries, but it had existed long before that era. Privacy rights have a long history, with their origin being traced back to ancient societies. From a legal perspective, the Code of Hammurabi incorporated a section that provided that individuals were forbidden from intruding into another person’s home. Also, the Roman laws regulated against intrusion into another person’s home, which is a protection of the right to privacy (Becker, 2019).
The Fourth and the Fifth Amendment of the United States Constitution incorporates provisions that offer protection to the right to privacy. The principle behind the constitutional amendments is to protect members of society against invasions of the sanctities of their homes and privacies of life. There have been major developments in the Fourth Amendment that can be traced to the 19th century. For instance, in 1866, the Supreme Court, in a landmark case Boyd v. United States, decided that the plaintiff was not compelled to provide documents to the government. The conclusions of the Court were based on the Fourth and Fifth Amendments. The consequence of the decision is that it provided powerful protection to an individual’s personal information. However, in the 20th century, the protection provided was seen to increasingly interfere with the growing administrative state. That is because of the belief that for the government to operate efficiently, it needs access to a lot of information, with the decision in Boyd v. United States considered to be giving individuals an entitlement to nondisclosure. Therefore, in subsequent rulings, the Court started to retreat from that ruling in the course of the 20th century (Solove, 2006).
In the history of the right to privacy, the most profound development in privacy laws originated from the publication by Samuel D. Warren and Louis Brandeis in an article titled “The Right to Privacy” in 1890 in Harvard Law Review. The article’s influence in determining privacy law is considered to have been tantamount to adding a chapter to the United States law. The inspiration for the article, in part, was the expanding form of media, which at that time was a newspaper. Circulations of newspapers experienced a 1000% increase and that was credited to the newspapers reporting sensationalistic topics in the form of gossip and scandals. Warren and Brandeis observed that the press was overstepping in terms of not observing existing bounds of property and decency. Gossip was a trade and no longer a resource for those who were idle. The scholars were also concerned about the role that new technology would play in making it possible for the press to overstep existing bounds (Solove, 2006).
Instantaneous photography, which involved the introduction of cameras, was a new technology that caused discussions concerning the right to privacy. It was anticipated that a dangerous mix would be the outcome of news based on sensationalistic topics and instantaneous photographs. That is because it would make it possible for the press to invade what is considered to be the private space of private and domestic life. Therefore, the new threats required a remedy that was anchored in law. However, the existing challenge then was that common law did not afford citizens legal protection of privacy. The defamation law that incorporated torts of slander and libel protected individuals against false information, but not true information that is private. In the case of contract law, it protected privacy within the confines of the relationship formed between parties, but it did not offer protection against invasion of privacy by third parties who are not part of the contract. Since existing laws were inadequate to protect privacy, Warren and Brandeis argued that it was important to have in place that secured each person’s right to determine to what extent they wished their thoughts, sentiments, and emotions to be communicated to others (Becker, 2019).
Relevant Cases
The first case is Katz v. United States (1967), which is considered pivotal when it comes to issues of digital privacy. In 1961, the Supreme Court in Mapp v. Ohio held that evidence that was obtained in violation of the Fourth Amendment was not to be used as evidence in trial. The decision by the Court in Katz v. United States overturned the previously held expectation that evidence obtained in violation of the Fourth Amendment was to be excluded from being part of evidence in criminal trials. In the case, the defendant had been wiretapped while on a telephone conversation in a phone booth. The Justices held that what an individual knowingly exposes to the public, even in the confines of their office or home, cannot be afforded the protection of the Fourth Amendment. However, the Court also declared that what an individual seeks to preserve as private, even in an area that is public, may be afforded constitutional protection (Solove, 2006).
In Katz v. United States, the basis for the current approach by the judiciary in determining the applicability of the Fourth Amendment emerged. It is from this case that the reasonable expectation of privacy test originated. The expectation of privacy test, as articulated by Justice Harlan, involves determining whether a person shows an actual or subjective expectation of privacy. The other part of the test is whether the expectation is one that society is able to recognize as reasonable under all circumstances. The case established that reasonable expectation of privacy existed in different places. The decision in the case shaped the Fourth Amendment jurisprudence (Solove, 2006).
The second case, Riley v. California (2014), is pivotal since it took into consideration the role of modern technological advancements and the right to privacy. In the case, the United States Supreme Court held that law enforcement agencies were obligated to obtain a warrant to search the digital contents of a cell phone that they seized from a person who was under arrest. The decision recognized that modern technologies posed a unique challenge when it came to the right to privacy but also understood that there was a need to ensure irrespective of the space, the right to privacy was adequately protected. The Court ruled that warrantless search and seizure of digital content contained in a cell phone during the arrest of an individual contravenes the provisions of the Constitution.
The third relevant case is the European Union vs. Facebook Ireland (Schrems II, 2020), which challenged the United States and the European Union being the largest net exporters of digitally enabled services. In the case, the Court of Justice of the European Union (CJEU) stated that the United States and European Union Privacy Shield was not legal. That is because the court found that the surveillance laws that were present in the United States did not afford data collected from the European Union subjects’ adequate protection as provided under the European Union’s Charter of Fundamental Rights and General Data Protection Regulation (GDPR). Section 702 of the Foreign Intelligence Surveillance Act (FISA) and Executive Order 12,333 were considered to be broad and lacked checks and balances when it comes to invasion of privacy and violation of rights to privacy (Aktipis & Katwan, 2021).
Opinion
In my opinion, the digital age has introduced significant complexity on the issue of right to privacy. That means that the right to privacy in the digital age is at a vital point. There have been legal frameworks that have been adapted over the years to address different challenges that have been identified. However, the rapid pace of technological development has continually tested the limits of privacy laws. That is because technological innovations have opened up spaces that were previously considered private, and individuals would have reasonable expectations of privacy. Governments are forced to try and balance between the right to privacy that individuals enjoy as accorded by the constitution and legitimate societal interests such as national security. The prediction is that the future will be accompanied by a paradigm shift in regulations concerning privacy. That is because of the need to emphasize on user control, transparency, and global cooperation to facilitate the flow of data across borders.
Conclusion
The right to privacy in the digital age is complex and dynamic, which makes it an interesting legal topic. The historical analysis suggests that there have been changes introduced to take into consideration shifts experienced and ensure the provisions of the Fourth and Fifth Amendment are protected. As technology continues to advance, legal scholars and policymakers are faced with the challenge of trying to balance between individual privacy rights and interconnectedness of the world that facilitates easy access to information that is considered private. The way forward involves the introduction of innovative legal solutions.
References
Aktipis, M. S., & Katwan, R. B. (2021). Data protection commissioner v. Facebook Ireland Ltd. and Maximillian Schrems (C.J.E.U.). International Legal Materials, 60(1), 53-98. https://doi.org/10.1017/ilm.2020.62
Becker, M. (2019). Privacy in the digital age: Comparing and contrasting individual versus social approaches towards privacy. Ethics and Information Technology, 21(4), 307-317. https://doi.org/10.1007/s10676-019-09508-z
Boyd, D. (2014). It’s complicated: The social lives of networked Teens. Yale University Press.
Esguerra, R. (2009). Google CEO Eric Schmidt dismisses the importance of privacy. Electronic Frontier Foundation. https://www.eff.org/deeplinks/2009/12/google-ceo-eric-schmidt-dismisses-privacy.
Solove, D. J. (2006). A brief history of information privacy law. Proskauer on Privacy.
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