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The Precarious “Right” to Privacy: Technology, Terror, and Thin Walls

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Loud sex is now as good as a warrant.


Believe it or not, the Superior Court of New Jersey recently ruled that high-volume sex is cause enough for police to search a home. It is just the latest move in the battle over privacy in the United States. The walls of solitude just got a little thinner, especially for those with thin-walled homes.


The right to privacy has been the subject of vigorous debate in the United States for over one hundred years. Lately it’s escalated: in only a decade, from the pre-9/11 halcyon days to today, we have gone from hugging our loved ones goodbye at their airplane gate (Love, Actually–style) to needing a boarding pass to get through security—not to mention the willingness to remove various items of clothing, or even submit to a scan that sees straight through our clothes.


Yes, things have changed. But even a century ago, Americans were feeling the intrusion.


The U.S. Constitution and a handful of Supreme Court cases establish some privacy-like protections, but no law establishes any firm “right to be let alone.” That’s what Samuel Warren and Louis Brandeis, two Harvard-educated lawyers, called it in an 1890 paper published in the Harvard Law Review. In the history of the issue of privacy in the United States, it is a seminal bit of legal scholarship.


At Harvard Law School, Warren and Brandeis had been a promising pair: Warren graduated number two in his class in 1877, second only to Brandeis, who set a record for highest GPA upon graduation. (Brandeis would one day become a Supreme Court justice.) Thirteen years later, they cowrote “The Right to Privacy,” in the process carving a new groove in legal philosophy. The paper set out the principle of privacy and made the argument that it is worth legally preserving.




Their scholarship informed judicial debate—but it did not inspire any federal laws guaranteeing the right to privacy. Instead, what we have are a handful of amendments that “cast a penumbra” of rights, as many legal scholars put it, that add up to semi-protection of privacy:


  • First Amendment: the right, among other things, to assemble where you like, whether in public or in private.
  • Fourth Amendment: no unreasonable search and seizure ( i.e., no intrusion without a search warrant).
  • Ninth Amendment: The enumeration of these rights (the Bill of Rights) does not deny you other, unwritten ones.
  • Fourteenth Amendment: The government must follow due process of law (i.e., you cannot be searched, arrested, sentenced, or imprisoned unless it is done on record and by the books).


Today, the United States is a surveillance society. Traffic and CCTV cameras are all over most cities. Phone calls can be wiretapped with—or occasionally without—a court order. Emails, texts, and social networking activity are often saved on remote servers. Delete your Facebook account, for example, and you will find that the company saves your information indefinitely, for your convenience. And at work, forget about it. The odds are better than 50 percent that a company monitors employee Internet use (1 in 1.52—66 percent); the odds it monitors actual emails are 1 in 2.33 (43%), and the odds for phone conversations are 1 in 6.25.


As the recent attempted bombing in Times Square has reminded us, the threat of terrorism—and the measures to countermand it—are a part of our new reality. And this is having an effect on how we view our right to privacy, along with many other liberties we once took for granted. In 2002, the odds an adult believed “living in freedom” was an essential part of the American dream were 1 in 1.28 (78 percent). In 2009, those odds had changed to1 in 1.47 (68 percent).


Of course, everyone has their own definition of freedom.


Originally published on Book of Odds

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